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Raid Of The Day: Lewis Cauthorne

Radley Balko   |   May 23, 2013   10:39 AM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

In November 2002, Lewis Cauthorne was in the basement with his mother, girlfriend, and three-year-old daughter when a police team raided his Baltimore home. The cops didn't announce themselves. Cauthorne had no prior criminal record. His father had been robbed and killed while working as a cab driver.

When the police broke down his door, Cuathorne fired at them with his .45-caliber handgun. He claimed he thought they were criminals. The police fired back. Four officers were wounded, but miraculously, no one was killed. The police initially claimed to have found six bags with traces of marijuana, empty vials, a razor with cocaine residue, and two scales in Cauthorne's home. But an ensuing investigation found peculiarities with the evidence that precluded Cauthorne from being charged even with a misdemeanor. There was no record of where exactly in the home the drugs were found, and crime lab technicians were told by police not to photograph the evidence. The raid was based on a tip from a confidential informant.

The officers who conducted the raid were unavailable for interviews with investigators -- some for days after the raid, others for weeks.

Cauthorne was arrested after the raid and served spent six weeks in jail until prosecutors decided in January 2003 that he had acted in self-defense. They dropped the charges, and Cauthorne was released. The four wounded officers were issued citations of valor.

Sources: Allison Klein and Del Quentin Wilber, "Prosecutor to drop charges in shooting of four officers," Baltimore Sun, January 7, 2003; Del Quentin Wilber and Ryan Davis, "Police shooting suspect is denied bail by judge; Prosecutor, defense tell far different accounts," Baltimore Sun, November 22, 2002; Del Quentin Wilber, "4 city police officers presented certificates for valor ; Each was shot during November drug raid," Baltimore Sun, May 21, 2003.

Morning Links: Narc Cop Costs NYC $1 Million In Lawsuits; The .05 Debate; A Congressional Fourth Amendment Alliance

Radley Balko   |   May 23, 2013    9:28 AM ET

Read More: the agitator

-- Great new Colorado law requires all police agencies in the state to give officers dog training.

-- Fun photography theme recreates childhood photos years later.

-- When did we start throwing spears?

-- One narcotics lieutenant and his team have cost New York City more than $1.5 million in lawsuits and settlements. Naturally, he's been promoted.

-- One man's quest to create an early-20th century "Internet."

-- An unusual alliance emerges in Congress to shore up the Fourth Amendment.

-- Steve Chapman on the nonsense proposal to lower the national BAC limit to .05.

-- It's time to talk about our irrational child pornography laws.

Raid Of The Day: Jeffrey Miles

Radley Balko   |   May 20, 2013    1:58 PM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

On March 26, 1987, more than 25 police officers in Jefferson County, Kentucky (Louisville) help serve warrants on 37 people implicated in a five-month drug investigation. One of the suspects was Billy Ray McCue. When the police attempted to find McCue's current whereabouts, they found an address in the town of Okalona that he had given two years earlier when he renewed his driver's license. Without conducting any additional surveillance or further investigation to confirm that the address was still where McCue resided, Jeffersontown police officers John Rucker and Don Johnson went to the address to apprehend McCue.

The problem: McCue had long since moved out. The house had since been occupied by respiratory therapist Jeffrey Miles, 24, his wife Lucy, and their 8-month old son.Miles was working two jobs at the time to save up for a down payment on a house, so he was sleeping when Rucker and Johnson came to his home at around 6 in the evening in search of McCue. According to the police officers, they knocked and announced themselves, and when no one came to the door, Rucker forced his way inside. Rucker drew his gun, then walked through the house to the back to let his partner in. As the two started to search the place, Miles had woken, and apparently mistook them for armed criminals. According to Rucker, as he made his way from the kitchen to the living room, Miles grabbed his gun, and the two erupted into a struggle, during which Rucker says his gun accidentally discharged. The bullet struck Miles in the throat. He died 45 minutes later.

Miles had no criminal record, no connection to McCue. They later conceded they had simply broken into the wrong house. Four hours after Miles died, police arrested McCue. They found his correct address by looking him up in the Louisville white pages. Rucker later said there was a bright evening sun in his eyes that prevented him from seeing that the man he was fighting with wasn't McCue. The Jeffersontown police chief initially dismissed the shooting as an accident and told Rucker to take a few days off, "just to take it easy." But a month later, a grand jury indicted Rucker for manslaughter. He was suspended with pay pending the outcome of the trial. The following November, a jury acquitted him of the charge.

Asked to respond to what had happened, Lucy Miles said simply, "My husband was in his own home, minding his own business. Someone walked in and shot him."

Sources: "Policeman Indicted in Mistaken Raid Death," Associated Press, April 30, 1987; "Police Search Leads to Fatal Shooting of Wrong Man," Associated Press, March 29, 1987; "Prosecutor Ask That Officer Not Be Reinstated," Associated Press, November 13, 1987; and "Police Shooting Ruled an 'Accident,' Associated Press, April 16, 1987.

Some Saturday Links: Chicago Cop Accused Of Beating Witnesses, Rogue Meter Feeders Terrorize Town, Remoteness

Radley Balko   |   May 18, 2013    2:08 PM ET

Read More: the agitator

-- Forensic dubiousness we're likely to see in the George Zimmerman trial: voice recognition "experts." Maybe this will present an opportunity for legal commentators and TV coverage to examine the problem of forensic junk science in the courtroom. Probably not. But maybe.

-- A single Chicago cop connected to over 50 homicide cases has also been named in dozens of complaints from witnesses alleging he beat them into giving false statements.

-- The amazing, near-future of 3-D printing.

-- In New York, more use of eminent domain to enrich developers at the expense of homeowners and small businesses.

-- In Keene, Hampshire, town officials are apparently terrified after a crime wave of . . . good Samaritans who feed expired parking meters. Maybe they've found a new use for that armored personnel vehicle.

-- Remote links: The world's most remote memorial. Stunning photos of the remains of remote airplane crashes. And a cool project that aims to find the most remote spot in each state.

-- War on cameras links: Baltimore cops sued for destroying cell phone videos. Omaha cops criminally charged for the same. Lafayette, Louisiana teen won't be charged after he was illegally arrested for recording a traffic stop. The good guys are winning on this issue. Slowly. But they're winning.

-- Good for Sen. Claire McCaskill. It's a rare but welcome sight to see a politician standing up for the rights of her political opponents.

Raid Of The Day: Doy Vanderburg

Radley Balko   |   May 17, 2013    2:48 PM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

At about 12:30 am on October 29, 1980, a narcotics task force from the Dallas County Sheriff's Department, and the DeSoto, Duncanville, and Lancaster police departments approached the house at 4202 Falls Drive in Oak Cliff, Texas. They had an arrest warrant for David Lynn Martin, who was suspected of drug crimes. Unfortunately, their records were out of date. Martin had moved out months earlier. Doy Vanderburg, 22, and his fiance Nancy Garrett had since moved in.

When they knocked at the door, Vanderburg looked out and saw armed men in casual clothing. He retrieved his gun. Vanderburg claimed the police never identified themselves, and that when they kicked down the door and saw he had a gun, they began firing. The police claimed they knocked and announced themselves and that Vanderburg -- who had no criminal record -- just opened fire on them, for no particular reason, "knowing full-well they were police officers." (The claim is made more dubious by the fact that Vanderburg was never charged with a crime.)

One officer was struck in the legs and shoulder. Another was shot in the stomach when a backup Dallas officer showed up after the shooting had begun, mistook the undercover cop for a suspect, and shot him -- just as Vanderburg had.

Vanderburg was shot in the head and abdomen. According to a lawsuit filed by his family, the police immediately called for paramedics for themselves, but waited more than an hour before getting medical attention for Vanderburg. Seven hours passed between the time he was shot and the time he was taken into surgery.

Police later arrested Martin -- their suspect -- at his new address. He was charged with misdemeanor drug crimes and released on bond the same day.

Vanderburg would undergo more than 80 surgeries, and incur medical costs of over $2 million. The raid left him deaf and paralyzed. He ultimately died from his injuries in 1986. A grand jury reviewed the case, and declined to indict any of the police officers on criminal charges. Shortly after Vanderburg died, the Dallas County DA's Office reopened the case when the coroner ruled his death a homicide. But for a second time, the grand jury declined to issue any indictments.

By 1988, the various jurisdictions involved with the task force had settled with Vanderburg's family for a little over $3 million. But no police agency admitted any wrongdoing.

Sources: "Shot in Botched Police Drug Raid," Associated Press, March 15, 1986; "Duncanville Among Cities Named in $20 Million Suit," Duncanville Suburban, November 11, 1982; Jean Tute, "Wounded Officer Out of the Hospital," Duncanville Suburban, November 6, 1980; "DeSoto Agrees to $400,000 Out of Court Settlement," Duncanville Suburban, April 7, 1988; and "1980 Victime Dies, No Indictments," Duncanville Suburban, March 19, 1986.

Raid(s) Of The Day: Two From Recent Headlines

Radley Balko   |   May 16, 2013   11:35 AM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

Two examples today, both taken from recent headlines. First, from Texas:

Driving in the early morning hours to his job at a metal shop in Buda, Miguel Montanez at first thought the approaching lights were a school bus or a tow truck.

But Montanez says it was a Hays County SWAT truck that rammed his car head-on. As they collided, another police vehicle pinned him from behind, he says.

He heard a shot.

“I saw my windshield crack, and I ducked down as low as possible,” Montanez said. “I really thought I was going to die.”

Seconds later, he says, three deputies were pointing assault rifles at him. “That’s when I heard one of the officers say, ‘Oh, (expletive), we got the wrong guy,’ ” Montanez said.

[...]

The front end of Montanez’s green BMW is now crumpled from its impact with the SWAT truck. The windshield sports two spider-webbed cracks that look like bullet holes and burn marks that Montanez believes were from flash-bang grenades. The passenger window is gone, broken out during the stop, he said.

According to a "heavily-redacted" report, the Hays County police say the tactics were necessary in part "in order to maximize safety to community . . ." I'm sure Mr. Montanez will be relieved to know that he was nearly killed in the name of keeping the community safe.

The second story is fairly mild, as these things go. It's from Seaside, California.

"Just seeing the image of my son with his eyes wide open and staring at these police officers with their guns drawn was so troubling to me," said a Seaside woman, who wanted to stay anonymous.

The mother said her home was raided Thursday morning, and said a warrant was issued at the wrong house.

It was an abrupt start to her day.

"My son runs in and says Mom there's someone banging on the door," she said.

That someone was police, guns drawn and warrant in hand.

"Literally they all pile out of their van and lined up, as they strategically line up to raid a home," she said.

In this case, the police did at least knock, and waited long enough for someone to come answer the door. They had a warrant for a felon, and appear to have raided the wrong address. But note this bit from the article:

Monterey County Sheriff Scott Miller said during raids agencies are always working with old information.

"You do the best you can and you try and build it as you go through the searches," said Sheriff Miller.

All the more reason to avoid violent, volatile tactics.

Some Lunchtime Links: How To Leak To The Press, Widening Of The Nanny State, Censorious New Campus Speech Codes

Radley Balko   |   May 15, 2013   12:21 PM ET

Read More: the agitator

I know regular Agitator readers have expressed concern that the blog has become less blog-like over the last few months. I'll try to remedy that. It's been a nutty news week. Not just all the obvious stuff, but even the second-tier stories are crazy. A few items for your reading:

-- Pennsylvania and Indiana are facing challenges to their anachronistic liquor laws. And in Pennsylvania, the CDC is stepping up.

-- Chicago Mayor Rahm Emanuel is pushing mandatory minimums for gun crimes. Never mind that they don't work.

-- In Nanny State news, the NTSB wants to lower the legal BAC level for DUI offenses to .05. It's an absurd idea that even MADD doesn't support. At least not yet. Meanwhile, the FDA is mulling over a minimum drinking age for coffee, and remember all that scare talk about salt? Yeah. Never mind.

-- Given all the craziness in Washington this week, I think this five-year-old piece I wrote about political press flacks holds up pretty well.

-- Here's a smart piece by Glenn Reynolds on runaway IP law.

-- The Departments of Education and Justice plan to impose some astonishingly censorious speech codes on colleges and universities that accept federal funding. Which is nearly all of them.

-- How to leak information to the press without getting caught.

-- Harvey Silverglate looks at why the FBI doesn't record its interrogations. The answer ought to scare the hell out of you.

-- Finally, from Slate, "What’s Hitting Us in the Groin?"

Raid Of The Day: Eurie Stamps, Grandfather Of 12, Killed In Botched 2011 Drug Raid

Radley Balko   |   May 14, 2013   11:29 AM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

On the night of January 5, 2011, police in Framingham, Massachusetts conducted a drug raid on a Fountain Street apartment. They were looking for 2o-year-old Joseph Bushfan and Dwayne Barrett. Police allege an undercover officer had purchased drugs from the two men earlier that evening.

Bushfan was arrested minutes before the raid when he came out of the apartment. Barrett didn't reside at the residence. But the police went ahead with the raid, anyway. They took a battering ram to the door, set off a flash grenade, and forced their way inside. As the SWAT team moved through the house, screaming at everyone to get on the floor, Officer Paul Duncan approached 68-year-old Eurie Stamp. Stamps lived at the residence with his wife Norma Bushfan-Stamps, the mother of suspect Joseph Bushfan. Stamps, who was not suspected of any crime, was watching a basketball game in his pajamas when the police came in. By the time Duncan got to him in a hallway, he was lying face-down on the floor with his arms over his head, as per police instructions.

Duncan would later tell investigators that for his own safety, he decided to restrain Stamps, even though he was following instructions, and wasn't the suspect. From his interview:

"I make a decision at that point. My options are, focus on him like this and say, 'Don't move, don't move.' But what happens if there's a gun or something hidden anywhere and he just reaches quick? What happens? . . . I decided I'm going to go beside of him, get his hands behind his back, not to handcuff him, but just tighten up on his hands and kneel down on him so he can't reach for anything at all. In the back of my mind it takes any threat that maybe someplace I can't see completely out of the equation as far as any firearms or weapons,"

As Duncan moved to pull Stamps' arms behind him, he says he fell backwards, somehow causing his gun to discharge, shooting Stamps. The grandfather of 12 was shot dead in his own home, while fully complying with police orders during a raid over crimes in which he had no involvement.

The following March, Middlesex District Attorney Gerry Leone described the shooting this way:

As he stepped to his left, (Duncan) lost his balance and began to fall over backwards. Officer Duncan realized that his right foot was off the floor and the tactical equipment that he was wearing was making his movements very awkward. While falling, Officer Duncan removed his left hand from his rifle, which was pointing down towards the ground and put his left arm out to try and catch himself. As he did so, he heard a shot.

Leone's report never explains how the gun fired -- if Duncan improperly had his finger on the trigger, if he inadvertently latched on to the trigger as he fell, or if the gun somehow fired on its own. In any case, per Leone's account, the bulky equipment Duncan was wearing to protect himself may have contributed to his killing of Stamps.

Leone ruled the shooting an accident, and found no fault with the way Duncan or the SWAT team performed. While it's true that criminal charges against Duncan were probably unwarranted, it's also true that citizens who mistakenly shoot police officer during drug raids aren't afforded the same sort of consideration. The double standard is particularly bothersome when you consider that police get training on how to handle these situations, citizens don't; that police have the advantage of knowing what's about to happen; and that the tactics used in these raids, by their very design, are intended to confuse and disorient their targets.

Ultimately, another innocent, unarmed person was shot dead by a cop in the course of a highly-volatile raid on a private home. But according to police and the local prosecutors, the cop wasn't responsible. Nor, they said, were the policies that sent the SWAT team into a man's home at night to enforce laws against consensual crimes in the first place. Certainly, the victim wasn't responsible. Which can only mean that the occasional innocent, unarmed grandfather of 12 gunned down in his own home while watching basketball in his pajamas is a price Massachusetts officials are willing to pay to prevent people from getting high.

Raid Of The Day: Trevon Cole, 21, Killed During Pot Raid

Radley Balko   |   May 10, 2013    3:07 PM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

In June 2010, Trevon Cole, 21, and fiancee Sequioa Pearce (who was nine months pregnant) were in bed at 9:00 pm on a Friday evening when Las Vegas narcotics officers forced their way into the couple's apartment for a drug raid. Cole dashed to the bathroom to flush a small supply of marijuana down the toilet, but was stopped when Det. Bryan Yant kicked open the bathroom door and apprehended him. What happened next is in dispute, but the raid -- and Cole's life -- ended when Yant fired one round from his rifle into Cole's head at close range. Cole was unarmed.

Yant testified at a coroner's inquest that when he kicked open the bathroom door, Cole was squatting in front of the toilet, and that Cole stood and brought his hands up to a firing stance while holding a shiny object that Yant thought was a gun. Other officers described the action as a "furtive movement." Assistant District Attorney Chris Owens disputed Yant's account, noting that the evidence suggested an an accidental discharge. Yant was ultimately cleared of any wrongdoing. The inquest uncovered serious errors in the drug investigation leading up to the raid, including the fact that Cole wasn't actually the target of the raid. The police had mistook him for another man by the same name who had several prior marijuana-related charges.

In 2002 Yant had been the subject of another coroner's inquest after shooting a man lying face-down on a sidewalk. Yant claimed that the decedent was aiming a gun at him, but the gun was found 35 feet from the suspect's body. He was cleared in that inquest, too. A 2011 investigation by the Las Vegas-Review Journal found that over a ten-year period, coroners inquests cleared 97 percent of police investigated for shootings or inappropriate use of force.

Raid Of The Day: Derek Copp

Radley Balko   |   May 9, 2013    4:01 PM ET

Note: The "Raid of the Day" features accounts of police raids I've found, researched, and reported while writing my forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces. It's due out in July, but you can pre-order it here.

In March 2009, a Michigan SWAT team in full battle attire raided the apartment rented by Grand Valley State University students Derek Copp and Conor Bardallis. Copp told HuffPost that he was at home helping a fellow student with a paper. As the raid team attempted to break in by way of a rear sliding door, Copp threw open the curtains, and opened the door. As he did, Ottowa County, Michigan Dep. Ryan Huizenga shot Copp in the chest. He would later say his gun "accidentally" discharged. Copp, who was unarmed, spent nine days in the hospital, but did eventually recover from his physical injuries.

An investigation by Michigan State Police Det. Lt. Curt Schram found that Huizenga had improperly put his finger inside the trigger guard of his gun. Huizenga's attorney blamed Copp for the shooting, arguing that by opening the curtains and opening the door "aggressively" as the police were breaking into his home unannounced, Copp startled Huizenga, giving the officer no choice but to shoot the student. Huizenga later pleaded guilty to a misdemeanor charge of reckless discharge of a firearm. He was placed on probation for six months, then returned to both the police department and to the SWAT team.

The raid came after police had purchased small quantities of marijuana from Bardallis, who was the actual target of the raid. But police later alleged both roommates were selling pot. Copp pleaded guilty to delivery of marijuana. He was sentenced to 18 months of probation. Bardallis also pleaded guilty to distribution and was sentenced to 18 months of probation, a $500 fine and a six-month driver's license suspension.

In the end, the police conducted a volatile, fully armed, nighttime SWAT raid, then shot a man in the chest over consensual crimes that merited no more punishment than a couple of fines and probation. In the ensuing lawsuit, Copp's attorney asked for an investigation into "the actions of West Michigan law enforcement agencies carrying out S.W.A.T. team assaults with automatic weapons and full battle gear against college honor students and others with no prior criminal records, who are believed to be in possession of small quantities of marijuana." He added, "If they persist in pursuing marijuana users, they should do so with caution and not in a reckless, cowboy-like manner as was done in this case. This is West Michigan, not the Wild West."

In 2012, Copp accepted a $144,000 settlement. One of the conditions of the settlement was that he help work to expunge the misdemeanor charge from the criminal record of the man who shot him in the chest.

CORRECTION: An earlier version of this post stated that Copp was alone at the time of the raid. Additionally, though early reports stated that police thought Copp was reaching for a flashlight, it was later determined that he hadn't actually reached for anything, and was instead shot because he "opened the door aggressively."

Mississippi Supreme Court Justice Writes A Remarkably Poltical 'Dissent' To Willie Manning's Stay Of Execution

Radley Balko   |   May 8, 2013   12:25 PM ET

I've done a lot of reporting on the criminal justice system in Mississippi. When confronted with overwhelming evidence of innocence, prosecutorial misconduct, and forensic charlatanism, I've often heard or read state officials duck the actual merits of the arguments, and instead point out that the people making them are anti-death penalty zealots, or liberals from out of state, or some other effort to malign their motives. This obviously isn't an attempt to win the argument. It's more about wagon-circling -- signaling to political allies and residents of the state that they needn't take the allegations seriously, because they're come from people who just don't understand Mississippi.

It's bad enough, but perhaps expected, when that kind of posturing comes from a district attorney trying to cover his own mistakes. But it's appalling to hear it come from a state supreme court justice -- and not in a speech or an offhand remark, but in an actual opinion. This brings me to Mississippi Supreme Court Justice Michael Randolph's written objection (which I gather is different from an official dissent -- hence the quotes in the headline) to yesterday's order to stay the scheduled execution of Willie Manning.

If you've followed the case, you know that the state is attempting to execute Manning without testing available crime scene DNA. The state's main argument is that even if the DNA tests come back as a match to someone other than Manning, it doesn't necessarily mean that person committed the murders, and that the other evidence pointing to Manning overwhelmingly points to his guilt. Part of that other evidence, however, is testimony from an eyewitness and testimony from a jailhouse snitch, which have both since unraveled. Another portion of the remaining evidence is testimony from an FBI hair fiber analyst who claimed it was statistically likely that hair fiber found at the crime scene came from a black person. That's hardly damning, even if the testimony was accurate. The problem there is that on May 3, the Justice Department sent letters to Manning's lawyers stating that the testimony from its own FBI agent "exceeded the limits of science and was, therefore, invalid." DOJ then sent another letter declaring that the testimony of its own ballistics expert at Manning's trial was also invalid.

This is all part of a broader scandal in which federal expert witnesses were found to have overstated the significance of forensic evidence in thousands of cases -- and to have trained who knows how many crime lab technicians at the state level in the same flawed methods of analysis. This isn't some last-minute scheme cooked up by Manning's lawyers and liberal Obama DOJ appointees to fend off executions. In fact, Attorney General Holder's DOJ had to be publicly shamed into finally admitting the breadth and scope of the scandal, and into making an effort to bother to notify the people who were convicted based on the flawed testimony.

But that isn't how Justice Randolph sees it. He first notes that, "The [DOJ] letter states that the Department of Justice is "assist[ing] the [Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations." He next points out that, "The Innocence Project supports a moratorium on capital punishment," and that "The NACDL has been an outspoken critic of the death penalty system." In other words, pay no attention to the actual argument these lawyers are making, folks. They're just crazy death penalty opponents.

Of course, the DOJ can't easily be characterized that way. And the DOJ letters are what have really thrown this execution off schedule. So Randolph next sets out to malign the agency.

Of critical concern is the language contained in the FBI report stating that "[given] the abbreviated time frame for review, the FBI requests the Innocence Project to advice as to whether or not they agree with the FBI's conclusions as soon as possible.

I guess the implication here is that this language calls into question the integrity of the DOJ's conclusions -- that they were conspiring with the Innocence Project to concoct this last-minute appeal. This, again, is refuted by the fact that the DOJ forensics scandals is years (decades, actually) in the making. The last-minute nature of the letters is probably due to the fact that the DOJ is processing thousands of requests related to that investigation. A typical request for reanalysis of an FBI witness in a prior case in light of the scandal probably goes to the end of a long queue. A request with a letter noting that the defendant is days away from execution probably goes to the front of the line.

As for "whether or not they agree with the FBI's conclusions," sure, if one were looking for evidence of a plot between DOJ and the Innocence Project, the wording could perhaps be construed that way. It could also simply mean "Here are our conclusions, if you agree with them and want someone from DOJ to testify or submit an affidavit, please let us know."

It's in the next passage that Randolph flies off the rails. It would be almost comical if we weren't talking about a man's life.

Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of victims of the clandestine 'Fast and Furious' gun running operation can't get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Justice Department that grants and enforces Miranda warnings to foreign enemy combatants.

Holy non-sequiturs! I can only guess that the need to release the stay of execution quickly prevented Justice Randolph from segueing into a detailed critique of the DOJ's failure to investigate allegations of voting intimidation by the Black Panthers, a synopsis of the latest James O'Keefe undercover operation, or footnoting to Ben Shapiro's new expose at Breitbart.com -- all of which have about as much bearing on the legal merits of Willie Manning's petition as Fast and Furious or reading the Miranda warning to suspected terrorists. Which is to say none.

Justice Randolph, by the way, was reelected last year. So he'll be on the bench at least through 2020.

Crisis, Policing, And Militarism After Boston: Why We Need To Establish Fire Lines

Radley Balko   |   May 7, 2013   10:30 AM ET

(This is part four in a series of posts on the Boston Marathon bombings, the government response, and Boston unique historical perspective on militarism and civil liberties. You can read the introduction here, part two here, part three here, and part four here.)

By April 19th, about 9,000 cops, SWAT teams and National Guardsmen had descended on Boston to find the remaining suspect in the marathon bombing. In the Watertown neighborhood, they went door to door, in some cases forcing innocent people out of their homes at gunpoint. In at least one instance documented in a photo posted online, they pointed their guns at someone for merely looking out of a window while standing in his own home. And all of this was an effort to find Dhokar Tsarnaev, a single 19-year-old man who was unarmed when he was finally apprehended.

Tsarnaev wasn't found during one of those door-to-door searches, or even during the "stay-in" order. Rather, he was found after the order was lifted and after a homeowner noticed something suspicious in his own yard and called the police to investigate. For all the extraordinary measures taken in Boston that week, the crisis was resolved after a fairly ordinary series of events.

There isn't much of the Second Amendment left in Massachusetts, and the actions of local, state and federal authorities almost certainly violated the spirit and sentiment of the Third. In entering homes without permission, they essentially suspended the Fourth. But they did find their man. And he was arrested without any further loss of life. Bostonians cheered police after the arrest, and the city still overwhelmingly supports the police response. One poll showed 86 percent of the city in support of how police handled the incident, and journalist Garrett Quinn recently reported that he couldn't find a single person in the city who believed the police overreacted.

But of course there are some rights that can't be voted away. If tomorrow 86 percent of Boston voted to permanently suspend the Fourth Amendment for the other 14 percent of the city's residents, few serious people would argue that those poll results are an argument for doing so. (The hypothetical isn't all that farfetched. A number of polls over the years have shown that the much of the Bill of Rights would lose if put to a popular vote.)

Police actions like those in Boston also tend to have a self-reinforcing effect on public opinion. A heavy police presence to many implies a serious threat, whether or not such a threat actually exists. That tends to sow fear, which in turn makes the public grateful for the police presence. None of which speaks to the legitimacy of the police action itself. That Tsarnaev was arrested in Boston with no further loss of life is certainly a mark in favor of the police and public officials. But it says little about the legitimacy of the police actions leading up to his arrest. It tells us only that the local, state and federal governments used enough force to apprehend him. It doesn't speak to whether they used too much.

This debate matters because, as the historian Robert Higgs has fastidiously documented over the years, in times of crisis the government tends to cite the urgency of the situation and the need to preserve public safety to justify the suspension and erosion of civil liberties, the ever-increasing use of more and more force, and the need to shield itself from transparency and accountability. The problem is that when the crisis is over, things rarely go back to the way they were before it began. If we don't ask questions, demand accountability and require public officials to explain their actions, this "ratchet effect" will continue to expand the scope and reach of the use of force, with an ever-increasing suppression of civil liberties.

There's also a strong argument to be made that if the aim of the Tsarnaev brothers was to propagate terror, shutting down the city of Boston and subjecting portions of the city to what was effectively martial law played right into their hands. At the very least, it showed a potential future terrorist that with a few pressure cookers and some gunpowder, he can shut down an entire city and inflict an aggregate loss of of hundreds of millions of dollars.

As others have pointed out, numerous western cities have dealt with situations in recent history that were similar to those in Boston without shutting down the city or bringing in small armies to patrol the streets. The Washington, D.C. area continued to function for weeks during the Beltway sniper attacks in 2002. London continued to operate after the 2005 subway attacks. Dozens of cities have waited out suspected serial killers. Atlanta didn't go into lockdown after the 1996 Olympic Park bombing. San Diego didn't overreact after a series of pipe bombs went off in a federal courthouse in 2008. In fact, The Atlantic reports that Boston represents the largest lockdown of an urban area in America since the 1965 Watts riots in Los Angeles.

The Watts riots also provide a good example of how an extraordinary crisis can inspire an extraordinary government reaction that eventually becomes routine. The LAPD official in charge of the city's response to the riots was a young inspector named Daryl Gates. The experience so rattled him that he came up with an idea of assembling an elite, paramilitary police team for the sole purpose of reacting to and putting down such uprising. The concept behind Gates' "SWAT team" was that the best way to defuse a riot, active shooter or other violent incident was to deploy precise, specialized and overwhelming force.

In fact, the first nationally-televised SWAT raid -- on the Symbionese Liberation Army holdout in 1973 -- bore quite a bit of resemblance to the situation last month in Boston. The SLA was a domestic terror group. They had already shot up a sporting goods store, robbed a few banks, killed a high school principal and had plans for more shootings, bombings and general mayhem. They were also on the run in Los Angeles. But it wasn't until the FBI and LAPD could pinpoint the SLA members in a single home that police then evacuated the block, set up a perimeter and eventually deployed the SWAT team.

But that raid also popularized the SWAT team. The idea quickly proliferated, and by the end of the 1970s, nearly every city in the country had at least one. But by the mid-1980s, these teams were used much more frequently. Driven by political rhetoric that described the threat posed by illicit drugs as everything from a plague to a threat to national security, the violent tactics once reserved for hostage-takers and domestic terrorists were being used to break into the homes of suspected drug offenders. Today, SWAT teams are deployed 100-150 times per day in America, and the overwhelming majority of those raids are to serve search warrants on people suspected of consensual drug crimes. (They're also used to raid poker games and medical marijuana dispensaries, as well as for regulatory inspections.)

Imagine you're a public official reacting to what happened in Boston. The marathon bombing has been all over the news. The city is terrified. Everyone is watching. At one time, waiting until you could isolate your suspect to a single house, or even a few blocks, before sending in a paramilitary police team was seen as an appropriate way to handle this sort of situation -- a way of using enough force to confront the threat while doing the minimum amount of damage to civil liberties. But that sort of force is now used routinely and against people who commit unspectacular, not-at-all unusual crimes. It may be effective. It may be proven. But it's a now-unspectacular response to an unquestionably spectacular event, and thus risks appearing inadequate. For a politician, there's no worse popular perception of a crisis-performance than one that is seen as inadequate. Sending nine thousand law enforcement officers and National Guardsmen in pursuit of a single suspect -- no would would dare call that inadequate.

But for the sake of argument, let's assume that there was nothing untoward, unconstitutional or heavy-handed about the police response in Boston, or in Watertown specifically. Perhaps this was an exceptional event, one worthy of one of the largest police responses in American history. If that is indeed the case, we need to establish some fire lines, or else risk allowing the exceptional to become routine. If Boston is going to become a precedent, it needs to be a precedent for future Bostons and only for future Bostons, so we aren't locking down entire towns or cities every time a high school kid uses a glass jar and some Draino to blow up a few mailboxes. (For an example of how the "shut it down" reaction is catching on, see New York City this week, where city officials shut down the subway for an hour to catch a man suspected of stealing necklaces.)

So what exactly made Boston different from the D.C. sniper attacks or the bombing in Olympic Park? It wasn't the body count. It wasn't that the suspects were especially well-armed. They appear to have had one gun between them and made bombs from supplies that can all be obtained legally. It doesn't appear that they were any more vicious, indiscriminate or bloodthirsty than prior fugitive bombers or mass shooters. (Which isn't to say they weren't all of those things -- only that there's little evidence they were worse than killers other cities have dealt with differently.)

Were the heavy-handed door-to-door searches and lockdown in Watertown justified by the belief that Tsarnaev was holed up in that particular neighborhood? Are we okay with the tactics because they were geographically limited and only lasted for about a day? What if Tsanaev hadn't been found for another week? How large a section of a city are we comfortable locking down in such a manner, and for how long a period of time?

It seems that the primary reason for the heavy-handed response was heightened fear and outrage, much of which was driven by the high-profile nature of the attacks. We're of course more likely than ever to be carrying portable cameras and video recorders on our cell phones, but the bombing was staged at a time when bystanders were particularly likely to have those cameras running -- as friends and relatives were crossing the finishing line of the country's most prestigious marathon. That means the entire country saw photos of the bombs going off seconds after their detonation. Within minutes we had video. Within hours we saw images of limbless bodies, blood-soaked sidewalks and heroic cops, firemen and bystanders. We were angry and heart-broken, and I'd imagine for those living in Boston, wary and fearful of what could be coming next.

If the lockdown and police presence was a reaction to the high-profile nature of the attacks and nationwide revulsion, it means the police response was the product of fear -- fear from the attacks and fear of the unknown. We can then draw two conclusions here. First, it means the police response was not the result of a careful evaluation of the threat, balanced with a healthy respect for civil liberties. Second, it's now a road map for would-be terrorists: If you want to instill the maximum amount of fear and terror, if you want to attack the heart of what makes a free society free, stage your attacks on high-profile events and at a time and place when people are most likely to be filming one another.

The common response to critics of the response in Boston is that it's all hindsight -- Monday morning quarterbacking that fails to take into consideration the difficult position police and public officials faced in the hours and days after the bombing. On the first point they're right -- of course it's hindsight. That's really the only way we can evaluate any response to an event like this one.

There are a couple ways to address the second point. First, if a law enforcement officer or public official egregiously violated someone's civil rights, they should be held accountable. The volatile circumstances at the time can perhaps, in some cases, be an ameliorating factor, but it can't be an excuse for recklessness or extreme negligence. Because, again, if it's allowed as an excuse, we risk it becoming a precedent. It's unfathomable, for example, that there has been no real discipline for the police officers in Los Angeles who shot up a newspaper delivery truck -- and the two women inside -- because they mistook it for the truck alleged cop-killer Christopher Dorner was reported to have been driving.

The volatility and danger of a fugitive on the loose doesn't excuse spraying bullets at a truck occupied by two innocent women (and, apparently, at the houses, trees and neighborhood around them). In Boston, Dhokar Tsarnaev was initially reported to have fired at police officers from inside the boat where he had taken refuge. That brought a barrage of gunfire from police in response. But we now know that Tsarnaev was unarmed. You needn't have any sympathy for Tsarnaev to be concerned and to want answers for why the police mistakenly opened fire an unarmed man. What if it hadn't been Tsarnaev?

But it's also worth noting that a more general critique of the police and political reaction to Boston isn't necessarily a condemnation of the people in charge, even if we conclude that they made some mistakes. The public officials in Boston were operating under unimaginably stressful conditions. To revisit those decisions after the fact isn't a judgment on any particular official's character, it's an attempt to learn from the experience. We could, for example, determine that the "stay-in" order was an overreaction to be avoided in the future while still understanding the thinking behind the decision to issue it.

But that those decisions made in Boston were made under duress is precisely why we need to revisit them. To say the decisions made in Boston should be off-limits for criticism because of the urgency and fear of the moment is to let urgency and fear drive our reaction to these events -- and therefore drive our policy going forward. If Boston should be a precedent, it should be a narrowly-defined precedent that addresses what made Boston an exceptional situation. But it seems probable that not every decision made that awful week in April was the correct one -- that from the executive level down to the cops going door to door, at least a few decisions made by some people amount to an excessive or unnecessary use of force. It's important that those decisions be identified, too, so that cops and political leaders in the future have better guidelines as to what is and isn't appropriate.

When terrorists attack free societies in an effort to destroy them, the very freedom and openness those societies afford -- and that the terrorists are trying to destroy -- can often be an ally in their efforts. That's certainly what happened here. This was a soft target. It's of course important that we apprehend and punish such people. But in our efforts to prevent them from destroying our freedom and openness, we need to be just as vigilant in making sure we aren't doing their work for them.

Radley Balko is author of the forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Departments.

Boston And Militarism: The Modern Drug War

Radley Balko   |   May 3, 2013   10:03 AM ET

(This is part four in a series of posts on the Boston Marathon bombings, the government response, and Boston unique historical perspective on militarism and civil liberties. You can read the introduction here, part two here, and part three here.)

The most persistent and significant contributor to police militarization and the erosion of civil liberties has of course been the modern drug war. (Perhaps rivaled over the last decade by the war on terrorism.) And in the 30 years since Ronald Reagan accelerated the push to a martial approach to drug prohibition, Boston has seen a number of constitutionally questionable crackdowns, but has also produced some interesting push-back and public debate.

In the early 1980s, Boston authorities introduced widespread stop-and-frisks, barricades, and other high-intensity policing tactics in high-crime neighborhoods like Roxbury and Matapan. Critics claimed police were implementing a "search on sight" policy of black men in some neighborhoods, doing away even with the low bar of needing reasonable suspicion before conducting stop-and-frisks. Police admitted a search-on-sight policy, but only for anyone known to be or suspected of being in a gang, along with anyone who associates with those people. They also claimed to be following a vague policy that allowed them to search anyone they felt "causes fear in a community."

According to a subsequent lawsuit, black men were stopped, patted down, and in some cases strip searched for no more than wearing the sports logo of a particular professional sports team. A Boston Globe investigation found 15 people who had been stripped searched on the street, but were never arrested.

State Sen. William Owens said the tactics were alienating an entire generation of black men, and that had effectively imposed martial law on some communities. Tensions boiled over in 1989 when a plainclothes officer shot 30-year-old Rolando Car during a stop-and-frisk after mistaking Carr's keys for a gun. Suffolk Superior Court Judge Cortland Mathers later ruled that the policy was ''in effect, a proclamation of martial law in Roxbury for a narrow class of people, young blacks."

A few years later, police erected barricades in the community of Lawrence, about 40 minutes north of Boston. Residents of Lawrence were issued passes that they had to show to get into and out of the neighborhood. Anyone entering Lawrence had their vehicle license plate documented by police manning a barricade. A letter was then sent to the registered owner of the vehicle to let him know the car had been spotted in Lawrence. The director of the ACLU in Massachusetts said of the tactics, "This is martial law, without the federal troops." Police Chief Allen Cole described the tactics as a form of community policing.

One of the more interesting feuds came in the early 1990s, when the Clinton administration imposed a zero tolerance policy on drugs and weapons in federally-subsidized public housing. The new policy: warrantless searches of anyone living in public housing. Boston Housing Authority Administrator David Cortiella fought the plan, which he called a declaration of martial law on the poor. In a 1994 editorial, the Boston Globe chastised Cortiella, scolding that asking poor people to give up their Fourth Amendment writes was "no more dramatic than violent crime in America." The Globe editorial added, "It's not as if police SWAT teams will routinely slam through doors."

In fact, that is exactly what happened. Two years later, ABC News aired dramatic footage of a SWAT team raiding a public housing facility in Toledo, Ohio. The violent raid turned up less than an ounce of marijuana in the bedroom of a teenager who lived in the house. That was enough to evict the entire family. ABC, the Clinton administration, and local authorities deemed the raid a small victory in the war on drugs. After a series of particularly violent, warrantless raids on public housing units in Chicago, a federal judge ruled the practice unconstitutional. The Clinton administration responded with a new plan -- require public housing tenants to sign over their Fourth Amendment rights in their leases. The White House argued that the searches would then be consensual.

Boston also hasn't been immune to the massive increase in drug raids outside of public housing since the early 1980s. In 1988, Boston Det. Sherman Griffiths was shot and killed during a police raid on a residence they suspected was occupied by Jamaican drug dealers. The suspected shooter, 34-year-old Albert Lewin was acquitted three years later after a series of investigations revealed widespread corruption and perjury within the department. In the raid that ended one of their colleague's life, one BPD sergeant admitted in testimony that he had fabricated the informant whose alleged tip led to the raid in the first place. Waiting to establish probable cause -- in other words, respecting Lewin's constitutional rights -- was too time consuming. Sources in BPD told the Globe that "enormous public pressure on police to arrest drug dealers . . . has led some detectives to find 'workable' solutions to what police see as unworkable constitutional requirements for warrants."

The Lewin/Griffiths case also brought to light that Boston narcotics cops were routinely falsifying search warrants in drug cases -- which means they were routinely raiding homes without probable cause. A Boston Globe review of 350 drug warrants found that fabrication of informants, exaggeration of probable cause, and boilerplate language was common. By one estimate, the number of drug warrants served by Boston police jumped from around 300 in 1985 to more than 3,000 by 1990.

The problem wasn't just in Boston. In a federal trial held at about the same time, a Philadelphia narcotics cop admitted that he and his colleagues fabricated informants on hundreds of search warrants. These warrants then authorized violent forced-entry raids on private homes.

City officials, judges, and prosecutors had little interest in holding them accountable. One former high-ranking BPD officer had at one point hired an attorney to look into the growing problem of falsification of drug warrants, and to discipline officers found to have lied or used boilerplate language on such warrants, but his efforts were thwarted by the police union.

As the Boston Globe noted in a 1990 article, the residents of the city didn't seem particularly concerned either -- these raids on innocent were being conducted in mostly poor, mostly minority neighborhoods. "I don't think the electorate is too concerned with the rights of drug dealers," one criminologist told the paper.

And so the raids went on. In 1995, the Rev. Accleyne Williams, a 75-year-old retired minister, died of a heart attack after struggling with 13 members of a masked, heavily armed Boston SWAT team that stormed his apartment on such a raid. The police later revealed that an informant had given them incorrect information.

Doctors later concluded that Williams had literally been scared to death. One BPD source told the Boston Globe that was entirely the point. The raid team, for example, wore black ski mask hats to terrify their suspects. "The psychological impact of confronting a masked face with a shotgun pointed at you can be devastating," the source said.

According to the Boston Herald, "a warrant authorizing the raid was approved by Suffolk County Assistant District Attorney Mary Lou Moran, even though the application supporting the warrant did not specify which apartment on the building's second floor was to be targeted. It also failed to provide corroboration of the confidential informant's tip that a Jamaican drug posse operated out of the building." In fact, the police officer who signed the affidavit for the warrant swore that the informant was trustworthy, even though he had previously falsely implicated a friend in a shooting three years earlier.

Another police source told the Herald: "You'd be surprised at how easily this can happen. An informant can tell you it is the apartment on the left at the top of the stairs and there could be two apartments on the left at the top of the stairs . . . You are supposed to verify it, and I'm not making excuses, but mistakes can be made."

Another Boston Herald investigation later discovered that three of the officers involved in the Williams raid had been accused in a 1989 civil rights suit of using nonexistent informants to secure drug warrants. The city had in fact just settled a suit stemming from a mistaken raid five years earlier. According to witnesses, one of the officers in that raid apologized as he left, telling the home's terrified occupants, "This happens all the time."

Interestingly, both Boston and Massachusetts have in recent years put up more resistance to police militarization than most cities and states. In 2009, for example, city police leaders and head of the FBI's Boston office argued in favor of arming the city's patrol officers with military-grade weapons to prevent a terrorist attack like the 2008 attacks in Mumbai, India. But ultimately, the city decided against the weapons, deeming them unnecessary.

That same year, Massachusetts Gov. Deval Patrick went even further. After a Boston Globe investigation found that vast amounts of military-grade guns, vehicles, and other weapons were being transferred to the state's police agencies by way of the Pentagon's 1033 program, Patrick suspended the state's participation in the program pending an investigation into how the equipment is being used. As we saw in the response to the marathon bombings, the move was in some ways merely symbolic. That program and others had already been arming Boston's police agencies for decades. The SWAT teams have been in place for years.

But that Boston and Massachusetts have pushed back even a little sets both apart from most of the rest of the country. And it's particularly interesting given the city's rich history as a hub of continuing debate over the proper way to ensure safety while protecting and preserving civil liberties.

Radley Balko is author of the forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Departments.

Boston And Militarism: The Fugitive Slave Hearings

Radley Balko   |   May 1, 2013   11:15 AM ET

(This is part three in a series of posts on the Boston Marathon bombings, the government response, and Boston unique historical perspective on militarism and civil liberties. See the introduction here, and part two here.)

The second historically significant incident involving Boston and a government-ordered lockdown came during the fugitive slave hearing of Anthony Burns in 1854. The hearing was the product of the Fugitive Slave Act, an odious law passed as part of the Compromise of 1850, a package of bills negotiated between northern and southern interests in Congress aimed at staving off a civil war.

Congress had already passed a law called the Fugitive Slave Act in 1793 as the means to enforce Article IV, Section 2 of the U.S. Constitution, which prohibited citizens from aiding the escape of slaves and mandated their return to their masters. But as slavery fell out of favor in the north, free states found ways around the law, and many cities and towns became places of refuge for freed slaves. A few northern state legislatures, for example, passed laws making it easier for escaped slaves to win their freedom. This included granting them jury trials, where northern juries often engaged in the doctrine of jury nullification, by refusing to convict either escaped slaves or the citizens who aided them. Other states passed statutes making it illegal for state employees to help enforce the federal law, a practice the U.S. Supreme Court ruled constitutional in 1843.

The Fugitive Slave Act of 1850 sought to plug these holes in the original. Under the new law, any black person in a free state could be claimed as an escaped slave on little more than the word of a southerner who'd could say he'd come to claim him. The accused would then be arrested and given a hearing in front of a specially appointed commissioner. Anyone aiding a slave's escape, including offering food or water, was guilty of a federal felony, punishable by a $1,000 fine and six months in prison. The law called for federal marshals to be paid bonuses for capturing escaped slaves, and fined them $1,000 if they refused to arrest any black person a white person claimed as a slave. The commissioners themselves were paid $10 if they ruled in favor of the slave owner, but only $5 if they ruled in favor of the accused.

In the next decade, defenders of the Confederacy would embrace a perverted notion of federalism to defend slavery, but in the 1850s the strongest challenges to federal supremacy came from northern states challenging the Fugitive Slave Act, either by passively refusing to enforce it, or directly acting to nullify it.

The two American presidents of the era -- Millard Fillmore and Franklin pierce--struggled to determine at what point such conscientious objections crossed over into insurrection, which would then permit them to send in troops to enforce federal law.
Just months after the act became law, for example, Vermont passed legislation requiring state officials to assist escaped slaves. That of course compelled Vermont authorities to resist the federal authorities charged with capturing those same slaves. The law was an open act of nullification. Fillmore threatened to send the U.S. Army into Vermont in response, but ultimately decided against it.

Before Burns' hearing in 1854, there had been other rebellions against the Fugitive Slave Act in Boston. In fact, Boston had acquired a reputation as a sanctuary for escaped slaves. Several years earlier William and Ellen Craft, a married slave couple, had escaped to Boston from a plantation in Macon, Georgia, with the help of the Boston Committee of Vigilance and Safety, an abolitionist group. The couple was then able to flee to England before a team of federal and southern slave catchers could apprehend them. Once safely in Britain, the two became minor celebrities. They wrote articles and gave speeches denouncing and ridiculing the U.S. and the south for still defending the practice of slavery.

The Vigilance Committee also staged a daring rescue of Shadrach Minkins, an escaped slave from Norfolk who had been captured in Boston by federal marshals. Abolitionists stormed the courtroom during Minkins' hearing, overpowered the federal guards, spirited Minkins away to Beacon Hill, and then eventually moved him to Canada. President Filmore ordered the prosecution of the nine abolitionists who aided the rescue. Those prosecutions were led by then-Secretary of State Daniel Webster, who had previously represented Boston in the U.S. House of Representatives, and Massachusetts in the U.S. Senate. Webster had also made a famous speech in support of the Fugitive Slave Act and the larger Compromise of 1850 on the floor of the Senate, and his political reputation was staked to its success. He was embarrassed by how difficult it had become to enforce the law he championed in his own state. The embarrassment must have only compounded for him when every abolitionist he put on trial for conspiring to free Minkins was acquitted.

Fillmore initially responded with a public condemnation of Minkins' rescue, which Webster co-signed. But Webster wanted more. He wanted the rescuers tried for treason, and had urged Fillmore to send federal troops into Boston to reinforce the slave catchers and provide security during deportations. After meeting with his cabinet, Filmore ultimately decided federal marshals had the power to summon military troops to help them catch escaped slaves, but that they should first get authorization from a district court judge.

During the 1851 fugitive slave hearing of Thomas Sims, the abolitionists again threatened a rescue. Secretary of War C.M. Conrad told the commander of U.S. troops in Boston Harbor not only to be ready for such an authorization, but to be willing to send troops to Boston on the request of a single U.S. Marshal alone if a judge wasn't available. Ultimately, the abolitionists failed in their attempt at a rescue, and Sims was found guilty and sent back to Georgia. Fillmore wrote Webster to congratulate him on his native city's successful deportation of Sims back into slavery without need for the aid of soldiers.

But the slave hearing of Anthony Burns went down very differently. Burns, 19, had escaped to Boston from his master's estate in Richmond, Virginia. He was working for a clothier when he was apprehended by slave catcher. On the morning of his hearing, the Vigilance Committee used a battering ram to force their way into the courthouse, then stormed the building with pickaxes, clubs, and revolvers. A federal marshal was killed in the fracas. The rescue was unsuccessful, and the rescuers were arrested, although none of them were ever convicted of a crime.

By the time of Burns' hearing, Bostonians had come to hate the Fugitive Slave Act, a sentiment increasingly common across much of the north, particularly after the more slavery-friendly Franklin Pierce was elected president in 1852. When Burns' hearing resumed the day after the abolitionists had stormed the courthouse, thousands of Bostonians turned out in protest. Alarmed by the the actions of the abolitionists and the apparently broad support they had in his city, Boston Mayor J.V.C. Smith called up two companies of the Massachusetts militia to guard the courthouse. Finding those forces inadequate, he then called President Pierce directly, and requested that two U.S. Army battalions and a group of Marines be sent to the city.

Though from New Hampshire, Pierce sympathized with the slave states (he would later pledge support for the Confederacy during the Civil War), and campaigned on more stringent enforcement of the Fugitive Slave Act. So when Smith asked for troops, Pierce was happy to oblige. He also put hundreds more troops on standby to descend on Boston if needed.

By the end of the week, the Burns hearing still hadn't concluded. Because he'd be kept in a jail over the weekend, the federal troops would remain in the city. Finally, at 9am on June 2, Slave Commissioner Edward G. Loring ordered Anthony Burns back to his shackles in Virginia. An estimated 50,000 Bostonians took to the streets and to rooftops to protest. They flew American flags upside down, and screamed “Kidnappers!” at the police and soldiers. One group hoisted a coffin with a banner that read, “The Funeral of Liberty.” The city was angry, not just at the law itself, but at the amount of force their own state officials had brought to bear to enforce it. Once Loring issued his decision, Boston went into lockdown. The historian Robert C. Coakley sets the scene.

At 0800 the 1st Brigade of the Massachusetts Militia began assembling on Boston Common; troops involved included two cavalry companies of hte 1st Battalion of Light Dragoons, eight companies of the 5th Regiment of Artillery, eight companies of the 5th Regiment of Light Infantry, and three companies of the 3d Battalion of Light Infantry, plus the Independent Company of Cadets--a total of twenty-two companies and about 1,000 men. At 0730 the three companies of regulars (Army and Marine Corps) took their position on the courthouse square. Following the 0900 decision to render Burns, he remained under heavy guard in the courthouse while preparations were made to escort him to the harbor. At 0930 when Loring's decision was made known to the crowd outside, the Boston police cleared the square and posted a force at each of the avenues leading into it. At 1000 a detachment of regular artillery went through “dry run” practice of loading and firing the cannon in the square. At about the same time, Mayor Smith issued a proclamation that was posted throughout the city, declaring that General [Thomas F.] Edmands and the chief of police had full discretionary power to uphold the laws and woul station their troops for this purpose. In effect the directive put the city under martial law. Its legality was later seriously questioned.

It took hours for the soldiers to clear the streets. On a number of occasions, the troops nearly opened fire on the crowd. In one instance, some troops mistook a crowd surge for an assault and charged Bostonians with bayonets. There were scores of serious injuries, but somewhat miraculously, there were no fatalities.

Once the streets were cleared, troops marched Anthony Burns from the courthouse to a ship waiting for him at the docks. It hadn't yet been a century since English troops fired on protesting Bostonians, an act that moved the country toward revolution. On the morning of June 2, 1854, American soldiers lined Boston's streets, fired shots from a cannon positioned in the town square as a warning to their fellow Americans, and threatened further military force in an effort to intimidate citizens who were angry that their government was about to force another human being back into slavery.

A month later, in a speech to an anti-slavery group he gave on the Fourth of July, Henry David Thoreau reflected on the scene in Boston.

The whole military force of the State is at the service of a Mr. Suttle, a slaveholder from Virginia, to enable him to catch a man whom he calls his property; but not a soldier is offered to save a citizen of Massachusetts from being kidnapped! Is this what all these soldiers, all this training, have been for these seventy-nine years past? Have they been trained merely to rob Mexico and carry back fugitive slaves to their masters?

These very nights I heard the sound of a drum in our streets. There were men training still; and for what? I could with an effort pardon the cockerels of Concord for crowing still, for they, perchance, had not been beaten that morning; but I could not excuse this rub-a-dub of the "trainers." The slave was carried back by exactly such as these; i.e., by the soldier, of whom the best you can say in this connection is that he is a fool made conspicuous by a painted coat.

Three years ago, also, just a week after the authorities of Boston assembled to carry back a perfectly innocent man, and one whom they knew to be innocent, into slavery, the inhabitants of Concord caused the bells to be rung and the cannons to be fired, to celebrate their liberty -- and the courage and love of liberty of their ancestors who fought at the bridge. As if those three millions had fought for the right to be free themselves, but to hold in slavery three million others . . . So some of my townsmen took the liberty to ring and fire. That was the extent of their freedom; and when the sound of the bells died away, their liberty died away also; when the powder was all expended, their liberty went off with the smoke.

In response to what the Pierce administration saw as open rebellion in Boston, Attorney General Caleb Cushing issued what became known as the Cushing Doctrine. The new policy, which was far more revolutionary than the subtle way it was enacted may have suggested, allowed any U.S. Marshall in the country to enlist the aid of federal troops to help enforce federal law. The policy was unquestionably a response to the Burns hearing, and was intended to enlist federal soldiers in the practice of rounding up blacks in the north who had been accused of escaping slavery.

Ironically, in ten years the policy would be used primarily to help federal prosecutors and U.S. Marshals enforce Reconstruction in the former Confederate states. The Cushing Doctrine was finally repealed in 1878 by an amendment to an Army appropriations bill sponsored by Kentucky Rep. J. Proctor Knott. The amendment read:

From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.

Knott's amendment was an explicit repeal of Cushing's directive. It prohibited any use of the U.S. military for domestic law enforcement purposes unless first authorized by the president or a preempted by a law passed by Congress. It became known as the Posse Comitatus Act, and it's still in effect today. The law is often misunderstood to prohibit any use of military troops for domestic law enforcement. This is incorrect. It only requires authorization from the president (under a number of other laws that lay out the criteria for such deployments) or the passage of a subsequent law. Since then, Congress has passed a number of laws authorizing military involvement in domestic law enforcement, particularly with respect to the drug war.

But more significantly, the term Posse Comitatus has come to symbolize the American principle of keeping the military separate and distinct from law enforcement. It's a term often invoked when U.S. troops or National Guardsmen are deployed during riots or after natural disasters, or to criticize the use of military tactics, weapons, and rhetoric by domestic police agencies. Consquently, the term Posse Comitatus has been invoked fairly frequently in these last two weeks since the massive show of government force in response to the marathon bombings. It's a term that carries some unique historical significance to Boston.

Tomorrow: The drug war occupation of Boston.


Radley Balko is author of the forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces.


Sources: Jacqueline Jones, Saving Savannah, The City and the Civil War, Random House (2008); Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860, University of North Carolina Press, (1970); Gary L. Collison, Shadrach Minkins: From Fugitive Slave to Citizen, Harvard University Press (1998); Charles Emery Stevens, Anthony Burns: A History, John P. Jewett and Company (1856); Albert J. Von Frank, The Trial of Anthony Burns: Freedom and Slavery in Emerson's Boston, Harvard University Press (1998); Chuck Leddy, “Boston Combusts: The Fugitive Slave Case of Anthony Burns,” Civil War Times, May 2007; Stephen Puleo, A City So Grand: The Rise of an American Metropolis: Boston 1850-1900, Beacon Press (20120); Henry David Thoreau, “Slavery in Massachusetts,” speech delivered in Framingham, Massachusetts on July 4, 1854; Clayton Laurie and Ronald Cole, The Role of Federal Military Forces in Domestic Disputes, 1877-1945, Center for Military History, United States Army (1997).