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So uh, I hate to ask this, but even accepting the premise entirely the ATF being totally wrong and everything, did he actually open fire on agents serving a warrant?
Are we gonna get body-cam footage and be able to come to an independent judgment on the conduct of the government in the course of the raid?
No.
That is most unfortunate.
And the denouement. There is a video of at least part of the knock-and-announce. Can we see it? Not yet, at least.
((Of particular concern is that Little Rock uses sometimes uses MVR to distinguish its car-based cameras. If the prosecutor's summary is doing so as well, it's not clear what, if anything, that camera would actually have seen.))
Thanks for the followup a lot later.
If this is true, then the deceased fired at ATF agents first, it would totally contradict the "they went to execute him" hyperbole seen earlier in thread.
That said, without the video, who knows if it actually occurred that way. And if it was a case of mistaken identity (e.g. he thought he was being robbed) then the intent of the agents wouldn't mean much at all.
Maybe I'm missing it, but I don't think anyone in this thread said "they went to execute him": the closest I can find is The_Nybbler's "(I certainly don't; I suspect they executed the warrant by leading with a flash-bang, or something similar)".
If the deceased fired at the ATF agents first, it's (probably) not murder to shoot back. The exact legal standard for a normal person is complicated, and there's not really a difference in the law relevant for ATF agents, but the argument that state agents did nothing illegal to invite legal self-defense is at least plausible enough given how broad a search warrant's powers go. ((Although from a real legal realist perspective, even clear murder by federal agents isn't prosecutable, because it and the feds will smother the career of state prosecutors who try it.))
And I think it's a bigger problem that, after decades of this (Ken Ballew was 1971!) and after four years where it has supposedly been agency practice to wear body cameras, we're still finding out that the closest we can get to ground truth on that "if" is the word of an elected prosecuting attorney.
That said, I agree with FCFromSSC that, even if everything occurred as the government claims, it still reflects extremely poorly on the judgement of the people executing the warrant.
As a matter of both federal law and Fourth Amendment jurisprudence, agents of the state executing a warrant still have procedures that they must obey (excluding the 'legal realist' view). There is a duty to give a reasonable time to comply with conventional warrants, breaking in only where refused or to liberate someone assisting him with a warrant. While SCOTUS has condoned knock-and-announce delays as short as 15 seconds, they did so recognize them as "a close call", and one dependent on the facts of the situation. The time and alleged contraband, as well as the size of the house, make the 30 seconds here implausible as reasonable times to comply.
As a matter of policy, people seeking or issuing warrants are supposed to consider not just whatever is most convenient to them or what optimizes the chance of finding contraband, but also to consider the safety of the community and even the alleged criminal. That's not a rock-hard constraint, and society has largely tolerated (imo, wrongly) police abuses of 'perp walks' and high-pressure searches in ways that would have endangered the community even were the alleged criminal guilty as hell. But it's especially galling in a case like this: agents were looking for a wide array of documents, laptops, and guns, almost none of which were not especially plausible to flush down toilets or sinks (there's multiple full rifles on the warrant, and even the subcompact pistols won't fit in normal plumbing), nor particularly important to the state's case even Malinowski opened his mouth and chewed them down. This is standard police shit.
Nor may or should warrants be executed without caution for the safety of everyone involved; while police are not required to find the least dangerous means of serving a warrant, they can not (even under legal realism, though tbf that was a much worse case) go into a search throwing any caution to the winds, without good justification for the dangerous actions. 30 seconds is seldom sufficient time for someone to dress and comply with even a lawful search, and there are known groups who have impersonated police to engage in kidnapping or burglary. There is nothing in the prosecuting attorney's claim alleging exigency, such as evidence of flight or destruction of evidence. And here it's especially galling because the available alternatives abound: the man regularly went to a fixed place of business at regular hours (where he could be cornered without access to 'an arsenal' and probably not even to guns), he was accused of -- despite their high profile -- paperwork crimes, the affidavit gives no clear or even cloudy evidence of threat to officers. Even the defense for covering up the door camera -- to obscure that the police's number and locations -- runs hard into this matter: it provides very little protection against someone inside the house spray-and-praying the police, while making it hard for anyone law-abiding to confirm that they are actually being served a warrant by police.
And that lack of exigency is reflected in the warrant, which ordered that the search should be executed in the daytime (unfortunately, in Arkansas, defined to include 6AM-10PM, regardless of daylight), because there was neither an inherent nor unusual concerns for officer or community safety.
The ATF and local police -- even if everything is as they alleged -- may not have ever chosen to execute Malinowski, but at every step of the process they prioritized a flashy arrest over the necessity actions to optimize the search for a valid prosecution, and over defendant and officer and community safety. That may not be against the law, especially realizing how little any prosecutor wants to take on federal officers. But that doesn't make it legitimate.
I was going to write a response to /u/FCFromSSC along these lines, just couldn't get around to giving it the time and thought required.
I fully agree that 30 seconds for K&A is absurd, that the daytime requirement is abused and that the ATF/police should generally have a much higher premium on avoiding (where possible) situations in which the use of force would be required. This is less about the law and more about their internal decisioning process -- they should value plans that accomplish law enforcement goals without force over those that accomplish the same goals with force -- even when such force is completely lawful & proper.
I think the three of us agree on that.
I disagree that this is a relevant concern. The right of a citizen to surrender in an orderly fashion (I know, no such right really exists today, it ought to exist) should not be contingent on the specific crimes or types of evidence to be found. The almost regular refrain in gun/drug searches of "they might destroy the evidence" or "they have guns and might take the time to arm themselves" has become a powerful excuse to ignore exactly the concerns you raise above.
I also disagree, at some level, that the quality of the warrant or the quality of the underlying charge is a relevant concern. Those seem like relevant concerns to be addressed in a subsequent formal legal proceeding, but in my conception (albeit: this is kind of vibe based) everyone that is the target of a warrant (or PC for arrest) is entitled to the same level of concern listed above, independent of the merit of their case.
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So my question is how you can set up a home security system to be able to resist a swat team with 15 seconds+1 minute of driveway approach warning.
That's barely enough time to get awake enough to check your cameras to identify the threat, let alone get guns on target.
I've been testing my reaction time on alerts, and it's not good enough yet. The only way to buy time is stalling intruders on the driveway or at the perimeter fence. Forget about activatable measures if you can't even hit the button in time.
Of course playing individual defense is a loser's game in the first place, so it's probably a waste of time. Better to spend your effort making sure the midnight death squads are going to the enemy's houses rather than yours.
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I disagree. there was no legitimate law-enforcement purpose served by a raid on his home during the hours of nautical twilight. He was a respectable businessman holding a position of significant responsibility. They could have approached him discretely at work on any of a wide variety of pretexts. They could have grabbed him while he left work, discretely or not. They could have stopped him as he was driving home from work. They could have waited for him at his home.
ATF has a significant history of conducting cinematic raids for, by all available evidence, purely PR purposes, and it has a significant history of those raids turning into clusterfucks that get innocent people killed. This appears to be yet another example of their long-established pattern of unconscionable behavior. If they did indeed violate their own guidelines by conducting the raid without bodycams, as opposed to destroying evidence of legally-questionable behavior, as they again have a long, well-documented history of doing, then there is no reason at all to grant them the benefit of the doubt.
This is an interesting post because you've managed to combine in the two paragraphs something I agree with strongly and something I disagree with strongly.
In the first part -- yes. LEs should always try to get suspects away from their home or do it as a traffic stop. The whole over-reliance on dynamic entry to a home instead of trying to isolate the home or surprise people elsewhere is a systematic flaw.
On the second part, this is idiotic. Yes, dynamic entry is overused, but the people responsible for getting folks killed are the ones that are firing on officers.
Finally, I'm not sure what your theory of his action is. You should be explicit: in your mind, did he fire on officers as a case of mistaken identity (e.g. thought they were robbers)? What other theory of his mind makes sense?
I think the ATF agents made an intentional tradeoff to maximize the drama and PR effect of their raid at the cost of a greatly increased chance of a gunfight.
I think he fired at officers as a case of mistaken identity. That doesn't change the fact that they appear to have deliberately created a situation that maximized the danger to their target, in exactly the way their agency has a long history of doing. Nor does it change the fact that they appear to have intentionally violated their own policies in a way that minimizes their legal exposure for doing so.
No, the people responsible are the officers who were more interested in headlines than in doing their jobs properly. They created the situation. Their creation of the situation is impossible to justify because it was so obviously excessive and unnecessary. Their actions in the situation are impossible to justify because they deliberately disabled the required tools of accountability. They work for an agency with a long history of these exact behaviors, leading to these exact outcomes.
Suppose a jurisdiction begins using full swat teams to serve speeding tickets. They use unmarked police cars to suddenly box-in the vehicle in question, then multiple plainclothes officers burst out screaming orders while waving badges and pointing machine guns at the vehicle's occupants. Shootings of "suspects" are significantly higher using this method than with the standard method. If this is pointed out, would you argue that it's the suspects' fault for failing to comply? If it turns out that all the officers in a traffic stop that resulted in a shooting left their body cameras behind, would you find that fact suspicious?
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I don't know about this particular case, but sometimes law enforcement "no knock" breaks into someone's home and from the homeowner's point of view are merely criminal home intruders.
Indeed. They should be disfavored.
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I doubt it.
I wish that we held public servants (particularly ones authorized to use deadly force) to a "duty to proactively gather proof of innocence". That way, if an officer couldn't decisively clear his own name then he would be at risk of being fired, even if the evidence that exists is too weak for criminal charges.
Instead, they get cover for bad decisions, like in this case (paraphrased and dramatized):
I think we're talking at cross-terms here. There is a difference between
Regardless of the first prong, every arrest has to be carried out with the animating purpose of bringing the suspect to face justice and with use of deadly force as an absolute last resort. Of course, most of the time deadly force is justified -- the meme about police routinely shooting the unarmed is widely overblown. So in this case, what kind of shoot was it?
I don't think that the officer's behaviour in the weeks leading up to the raids was objectionable in either case (or at least I'm not objecting to it). It's just what happened in the time between showing up at the street and knocking on/down the door that's at issue.
We don't know and the government feels no need to inform us. If there was exculpatory bodycam footage I'm guessing we would see it, but they don't have enough foresight to gather that evidence.
The thread that links ___'s case to mine is that the officers feel no need to be accountable for their actions. Malinowski's shooters didn't feel the need to defend their (upcoming) actions, and Parks' invaders weren't required to confirm that the address was correct. Ranking the credibility of different decision making styles:
checks and balancesauditable controls in a verifiable way.I'm pushing for the police to meet standard #3 whenever practical. Regardless of whether Malinowski was a shot well or not, the decision is not verifiable. The warrant is largely verifiable, and we can debate as to whether it's good or not, but apparently they don't care as much about proving that the shot was good. Maybe the officer could meet standard #4, maybe #7. Who knows.
Lt. Mike Lewis was held to standard #6 in his wrong-house raid.
You would think that police would be on top of releasing exculpatory footage ASAP, but only a few agencies have actually gotten that kind of turnaround time.
But perhaps you're right. At the same time, maybe the footage will come out showing Malinowski clearly raising a gun and firing at officers before they fired back.
I have no particular objection to this as the standard.
But again, you're now talking about conduct prior to the raid and not the conduct during the raid. Or else maybe I'm confused because it makes no sense to have a check and balance during an arrest.
Huh? The decision to shoot taken at the time was either reasonable (the officer had an objective and well-founded need for lethal self defense or defense of other innocent life) or not.
Sorry, that's my mistake. TIL that "checks and balances" is a very specific term of art that only applies to the government. I meant something like "Establish critical control point monitoring requirements" or "quality assurance via preventive actions".
We don't accept someone's word that food isn't contaminated or that a part is manufactured correctly. We have implemented recordkeeping and inspection requirements ("checks" on the procedure) that provide sufficient safety without compromising productivity ("balances" between those goals...oops).
You can't go "Trust me, bro. This food is good." because we value the safety that those procedures bring. Meanwhile cops are like "Trust me, bro. It was a good raid." and we just collectively shrug our shoulders and move on. Maybe he's right, maybe he's wrong, but we don't care enough about (future) raids to make it easy to answer.
The uncertainty is the problem. I don't just want it to be a good decision based on the facts, I want it to clearly be a good decision based on the available evidence (or alternatively clearly be a bad decision that's guaranteed to lead to punishment). I can't tell if it was a good decision or not, and nobody else can either.
Well, I guess the rise of body cams since BLM has done more for this than anything else in living memory.
Seems like a fine goal.
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