The actions of law enforcement officers during their recent search of former Utah Attorney General Mark Shurtleff’s home have once again raised questions about the proper role of force in executing search warrants. Tremendous public discourse also followed the search of Matthew David Stewart’s home in January 2012 that resulted in the death of a police officer. These events are an opportunity for Utahns to rethink policies on the routine use of force by police, especially in light of recent research showing that more force leads to less safety.
Shurtleff understandably complained when law enforcement officers entered his home and allegedly pointed weapons at his 17-year old daughter, who was not threatening them. While Shurtleff’s complaints come a little late in light of his previous views and policies on the police use of force when he was Utah’s "top cop," we should still listen. It remains to be seen whether authorities violated the Constitution in their actions at Shurtleff’s home. Their actions, however, were in line with current law enforcement policies and practices, under which officers serving search warrants employ extremely forceful tactics at homes, such as breaking down doors, setting off "flash bang" grenades, displaying weapons and commanding occupants to submit to authority. These tactics are not only used in emergency situations, like hostage taking. In fact, they are more typically used during investigations of nonviolent crimes, such as drug offenses (and apparently, official misconduct). Such policies and practices are not unique to Utah. The ACLU recently released a report, "War Comes Home: The Excessive Militarization of American Police," that documents this increased use of force across the United States.
Police officials maintain that the use of force is a necessary deterrent to suspects who may be armed and to protect officers and others from unforeseen dangers. They insist that routine use of forceful tactics increases safety. Recent findings by researchers at the Department of Justice’s National Institute of Justice, however, debunk those arguments. In fact, researchers have concluded that the lesser use of force results in less harm to both citizens and police officers, and unnecessary use of force increases the risk to all involved. Law enforcement officials who insist more force always leads to more safety are therefore empirically mistaken.
Fortunately, these unfounded beliefs are changing in Utah. In response to several high-profile use of force incidents, the Utah Legislature passed House Bill 70 last March. That bill requires police officers to use the least amount of force necessary when serving search warrants. The bill also seeks to ensure that the police identify themselves when serving search warrants and to only dispense with the notice requirement based on probable cause of an imminent need.
Although this bill was a positive first step, it did not go far enough. Last week, our organizations sponsored a Fourth Amendment Forum to debate the use of force during police searches. Panelists included Attorney General Sean Reyes, District Attorney Sim Gill, Utah Sheriff’s Association President Jim Tracy, former SWAT team leader Chris Gebhardt and ACLU senior attorney Kara Dansky. The discussion identified a surprising number of myths about the routine reliance on force during police encounters.
Despite the decidedly pro-law enforcement orientation of this group, these panelists seemed to agree that numerous current police practices rely too heavily on force. The discussion raised some key points:
• Only specially trained police officers should conduct forcible and no-knock entries.
• The "War on Drugs" has often resulted in untrained drug task forces using force to search homes for drugs. Use of force simply to preserve evidence may be unwise, as doing so unnecessarily increases the risk of harm to police and residents alike.
• Planned uses of force should require a specific showing of need beforehand.
• Judges have a constitutional duty to require police officers to show a specific need or risk of violence before approving search warrants that authorize force.
The 2015 Legislature will consider additional changes to Utah law that our organizations will be proposing. These changes are designed to protect both police officers and private citizens while balancing the right of all persons to be free from unreasonable searches and seizures. These proposals, if enacted, will prevent incidents like the ones involving Stewart and Shurtleff’s daughter. At the same time, as the data suggests, officer safety and protecting the public will actually improve. Reducing the use of force will be a win-win situation for the police and public alike.
Connor Boyack is president of the Libertas Institute. Kent Hart is the executive director of the Utah Association of Criminal Defense Lawyers. Marina Lowe is legislative and policy counsel for the ACLU of Utah.
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