Ducks and Economics

My name is Eapen Thampy. I am the executive director of Americans for Forfeiture Reform, a nonprofit that works on issues of asset forfeiture, an issue implicated deeply with the emergence of paramilitary policing in America. We have been endorsed by groups on every part of the political spectrum. Some of these groups include the Missouri Libertarian party, Ed Rosenthal’s Green Aid Marijuana Legal Defense Fund, and the conservative Right on Crime initiative, a project of Newt Gingrich, Grover Norquist, Ed Meese, and Pat Nolan.

Last May I was one of the many people at city council speaking in protest of the Kinloch raid; today I return to this chamber to ask again that we pursue a more sensible approach to policing in Columbia. Over the last year, as light has been shone on paramilitary policing practices in Columbia and around the nation, many thousands of people have contacted us, asking us to speak on their behalf, and bear witness to the harms that uncontrollable police agencies can do to their communities.

At the outset, it is important to note what we want. We want a strong and effective police presence, we want a fair and impartial justice system, and we want every man, woman, and child in America to be able to enjoy their freedoms in this brave land. We do not oppose the rule of law; rather, we wish to see it flourish. We honor and respect the sacrifices of all who serve to protect us, but we will not compromise on the high ideal we must hold our public servants to.

Nor do we intrinsically oppose the existence of SWAT teams. They exist for specific reasons: hostage crises, gun rampages in schools and public areas, to combat the threat of organized violent crime. Situations where a SWAT team might be required are by definition extraordinary.

But the emergence of SWAT policing in America and in Columbia indicate that these real needs have been corrupted by the perverse incentives provided by the War on Drugs and Columbia’s own dysfunctional police force.

SWAT policing, as I noted, is a far cry from routine policework. Most small jurisdictions do not need their own SWAT team. However, over the last twenty years, almost every medium to small police department or sheriff has managed to obtain their own SWAT teams, often without citizen approval or request. Moreover, the weapons and armor available to a SWAT team are fairly heavy duty and very expensive to operate and maintain.

A SWAT team is an expensive proposition. To simply get the APV out of the garage and back is a minimum of $2,000. Some of the raids Columbia SWAT have been involved in were on holidays; that means triple hazard, overtime, and holiday pay.

The most perverse part of SWAT policing may be the funding mechanisms that allow it to happen. Federal law allows Columbia police to seize property without proving a crime or obtaining a conviction; moreover, federal law allows Columbia police to keep this money directly, in violation of Missouri constitutional law and Missouri Supreme Court precedents that delegate seizure money to Missouri’s schools. The name of the program is Equitable Sharing, and over the last several years Columbia Police have received hundreds of thousands of dollars with essentially no oversight.

During the last year I have investigated the 106 SWAT warrants Columbia narcotics police served between January 2007-May 2011. You may view the map of these raids at

http://forfeiturereform.com/2010/11/16/columbia-police-department-swat-raids-in-columbia-missouri-2007-may-2010/

Here is Brennan David from the Columbia Tribune (http://www.columbiatribune.com/news/2010/jun/27/swat/):

Columbia’s SWAT team served 106 narcotics search warrants between Jan. 1, 2007, and May 11, 2010. The Tribune, through an open records request, received 99 of those search warrants; the others were considered closed records for various reasons.

Of the 99 SWAT narcotics search warrants granted by the Boone County Circuit Court to Columbia police, officers executed 43 percent of them within hours of being issued. Of those, 65 percent resulted in one felony arrest, and 18 percent resulted in misdemeanor arrests.

But the percentage of warrants producing a felony arrest dropped drastically to 37.5 percent when investigators waited one day before serving the search warrant. In those cases, 50 percent produced misdemeanor arrests.

I would also direct the CPRB to the video of another Columbia SWAT raid in 2008 (http://www.youtube.com/watch?v=05gLm6mSZ5M). In this raid, a family is at home when the SWAT team visits; you can see Columbia’s finest holding women and children at gunpoint. There is even a moment of pure incredulity at 7:30, where an officer handcuffs the elderly woman sitting in the bathroom, telling her that she is not under arrest and not in any trouble.

In this raid, 3-4 crack rocks were found, along with some minor paraphernalia. No weapons or evidence of trafficking were found, and despite the prior record of the men who were the target of the warrant, no indications of violence are provided that might justify a SWAT raid on this house in this manner. The woman who was not “arrested” ended up being charged with a paraphernalia possession charge; initially, she pleads not guilty until the court appoints a public defender for her, who negotiates a plea deal with the prosecutor instead of defending her in a court of law. Justice is no longer weighed by a judge in a court of law; it is held at gunpoint before being negotiated in the prosecutor’s office.

No government official here had any incentive to check the wrongdoing, misconduct, or negligence of other government officials.

Other Columbia SWAT raids bear similarly striking details. I have interviewed victims of at least 10 of these raids, who have asked me to bring you parts of their stories. Many of them are fearful that they will find themselves being retaliated against, and none are willing to give me permission to use their names. I have heard and verified tales of SWAT raids being used as retaliation for petty offenses or to put competitors out of business both legal and illegal.

This kind of enforcement is incompatible with the principles of Justice, or of her sister, Mercy.

It is important to note a contrast that I hope illustrates more clearly the problem we face. Boone County Sheriff’s Department does not generate the kind of lawsuits and publicity that Columbia Police Department does. There are a couple structural factors at work here: Columbia Police Department has had an incoherent series of transitions from one police chief to another over the past decade, leaving CPD with dysfunctional leadership and command structures that never had time to build or find the values that law enforcement must have to perform effectively. BSCD, by contrast, has a smaller, more stable force, with much more organizational integrity and continuity of leadership.

We have a few recommendations for the CPRB:

• First, recommend that the use of SWAT raids for non-violent offences be strictly prohibited.
• Second, recommend that any SWAT action be fully videotaped. This will allow the city to limit its liability from future civil lawsuits by demonstrating that the city has fulfilled its duty to ensure that any use of force has been accompanied by sufficient checks on its use.
• Third, recommend that all seizures related to criminal activity be documented, strictly accounted for, and deposited into the School Building Revolving Fund as per RsMO 166.131.
• Fourth, recommend that the city council refuse any federal funds deriving from seizure or forfeiture funds. Federal funding may be important for emergencies, but seizure money comes to our police free of civilian oversight or legislative control. This undermines our ability to influence policy at the police department. Moreover, un-appropriated funding undermines our ability to control the city budget, particularly when it is used to purchase weapons and equipment that must then be maintained with city funds over time.
• Fifth, recommend that the city council establish the protocols for enforcement of Columbia’s ordinance regarding cannabis offenses, with particular regard for the rights and safety of chronically ill or incapacitated patients. We understand that the implementation of this ordinance poses problems from a law enforcement perspective, which is why it is important that these directives come from civilian leadership. In this way our police can avoid the criticism of how their enforcement protocols may sometime provide conflicting imperatives.

Finally, please consider the words of Missouri Supreme Court Justice William Ray Price in his address to the Missouri Legislature today (emphasis mine, available here: http://forfeiturereform.com/2011%20state%20of%20the%20judiciary%20-%2002-09-11%20-%20FINAL.pdf):

From the 1980s, in Missouri and across the nation, we attempted to incarcerate our way out of crime and illegal drug use. We thought just putting people in prison would make them better or scare them straight. We spent billions of dollars and it did not work. We were tough on crime, but we were not smart on crime. Consider these numbers.

In 1982, 612,000 people were behind bars in state prisons across the country. By 2008, that number had risen almost fourfold to 2.3 million people. In 2010, the United States incarcerated a higher share of its population than any other country in the world. The cost has been staggering. State correctional spending across our country increased from $11.7 billion, in 1988, to $47.3 billion in 2008. (One in 31 The Long Reach of American Corrections, The Pew Center on the States, http://www.pewcenteronthestates.org; The High Budgetary Cost of Incarceration, Center for Economic and Policy Research, June 2010, http://www.cepr.net)

There is a broader debate here over how we approach crime of any nature. I ask you to dare to be smart on crime and engage the broader issues of Drug War reform and incentive-compatible policing in your evaluation of these issues of police conduct and misconduct.

I furthermore recommend the following experts on 4^th Amendment law and paramilitary policing:

Radley Balko, former Cato Institute scholar and senior editor of Reason Magazine; expert on SWAT raids and paramilitary policing (radley.responses@gmail.com)

Orin Kerr, Professor of Law at George Washington University; expert on criminal law, asset forfeiture, and Fourth Amendment law (okerr@law.gwu.edu)

John Payne and Audrey Spalding, policy analysts at the Show-Me Institute; asset forfeiture and SWAT raids (john.payne@showmeinstitute.org, audrey.spalding@showmeinstitute.org)

David Roland, lead litigator at the Freedom Center of Missouri; expert on Missouri and US constitutional law (dave@mofreedom.org)

John Chasnoff, Eastern Missouri ACLU; expert on SWAT policing and Fourth Amendment law (john@aclu-em.org)

Peter Kraska, Eastern Kentucky University, expert on SWAT policing (peter.kraska@eku.edu)

Please contact me for any clarification or if you have questions.

I am respectfully yours,

Eapen Thampy
Executive Director, Americans for Forfeiture Reform
3630 Holmes St., Kansas City, MO, 64109
Phone: 573-673-5351
Email: Eapen@ForfeitureReform.com or Eapen.Thampy@gmail.com
Web: http://www.forfeiturereform.com and  http://www.facebook.com/ForfeitureReform