Randy Davis
New member
Illegal Home Entries Put Police Unit Tactics on Trial
By Tom Jackman
Washington Post Staff Writer
Monday, June 26, 2000; Page A01
For the second time since May, a Virginia court has issued a blistering rebuke of the Fairfax County police department's tactical unit, saying its black-clad officers illegally burst into homes--in one instance repeatedly shooting a man they were trying to take in for mental treatment.
The most recent episode promises to pose an intriguing question for a jury at the man's assault trial later this summer: How much force is "reasonable" to repel the police after they have illegally entered your home?
The question has never been decided in Virginia, but a Circuit Court judge has promised to frame the trial around the unit's conduct rather than the behavior of the defendant.
Fairfax's tactical unit handles such specialized assignments as hostage situations and high-risk search warrants. Its officers are highly trained to move quickly and stealthily. But their bulletproof vests, hoods and boots can create an intimidating aura and sometimes obscure identifying police logos.
The fact that the officers didn't identify themselves before entering two Fairfax homes has incurred the wrath of the state courts.
"Some of the judges of this court," Fairfax Circuit Judge Stanley P. Klein said from the bench earlier this month, "have reluctantly concluded that some members of the unit see the Fourth Amendment [prohibiting unreasonable search and seizure] as a distraction they need to work around rather than a requirement of the United States Constitution."
Fairfax police were shocked by the ferocity of Klein's language, saying they'd never heard complaints from judges about the tactical unit. In response, police plan an internal affairs investigation of the case before Klein, Deputy Chief Walter A. Baranyk said Friday.
"He's a person of high stature," Baranyk said of the judge. "We consider that a relatively serious comment. That type of comment in a public court can't go unaddressed."
The case unfolded one night in January, when the tactical officers piled into the Fairfax area town house rented by Keith B. Davis. The police were fearful that Davis was suicidal, and they had obtained a temporary detention order to take him to a hospital for psychiatric evaluation, court papers say.
A plainclothes member of the tactical unit tried to lure Davis outside by saying he'd accidentally hit Davis's car. But Davis didn't have a car, and he became suspicious and tried to dart back inside. A swarm of armored tactical officers followed, the papers say. Davis then grabbed a gun and fired at the officers, who had not yet identified themselves as police, the judge said.
The officers returned fire with bullets and less lethal "beanbag rounds" from a shotgun. Numerous beanbag rounds hit Davis in the body, and one bullet slashed through his face.
Police charged Davis with felony assault for shooting at the officers. In pretrial motions, his attorney tried to get the charge thrown out, saying the police illegally entered Davis's home without warning.
Klein agreed that the entry was illegal, but he wouldn't dismiss the assault charge, saying that if he did so, "any time that there was an unconstitutional police entry . . . a person in his or her home would have free rein to simply shoot and kill any of the police officers who effected entry."
But Klein then issued a vehement tongue-lashing. "There is, in fact, no Fairfax County Police Department Tactical Unit exception to the Fourth Amendment's requirements," he said. "And this judge has no intention of explicitly or implicitly creating such an exception."
Klein noted that a similar ruling had been handed down last month by the Virginia Court of Appeals in a 1997 drug case involving a search warrant for Jesse L. Park's apartment. Again, the tactical unit used a plainclothes officer to knock on the door, but according to court records, all she said was, "I'm sorry" before hooded officers stormed through the door while yelling, "Police--search warrant."
A Fairfax judge ruled that the search was legal, but the appeals court reversed that decision and ordered a new trial for Park, who was released earlier this month after almost two years in prison.
"The tactical team's rushed entry," Appeals Court Judge James W. Benton wrote, "is particularly troubling. . . . Given the circumstances then existing, any reasonable person would have feared from the black-clad intruders." Benton said that the officers' vests covered the word "Police," and that they never identified themselves before entering Park's apartment.
Baranyk said he wasn't familiar with the details or the ruling in the Park case. Fairfax Maj. Michael Lomonaco, a tactical unit veteran who helps train other such units around the country, said Fairfax officers typically have clear police markings on their clothing.
"Everybody has it at least one place on their uniform," Lomonaco said. "And along with police ID, they're also announcing verbally who they are."
Baranyk added: "We're there to save lives, not to go out and hurt people. We're not urban commandos."
Some defense lawyers disagree. "It's not just Fairfax, it's a nationwide problem," said Marvin D. Miller, an Alexandria lawyer who is representing Park. "They bang down the door and run in the house. That's normal. And that's dangerous."
Police officials would not discuss the specifics of either the Davis or Park case, because both remain open. Davis did not return phone calls seeking comment, and Park declined to be interviewed until his case is resolved. Klein also declined to be interviewed. Baranyk said the police will attempt to speak with him as part of their investigation.
"We don't believe they're cowboys," said Fairfax Commonwealth's Attorney Robert F. Horan Jr. "They have to make tough judgment calls, sometimes in a very narrow span of time. In a lot of ways, they're the easiest crowd to play Monday morning quarterback with. You can sit, surrounded by your books and case law, and make judgment calls. They've got to make them on the dot."
In Davis's case, he had been conducting a hunger strike for nearly a year to protest his 1978 suspension from practicing law in Minnesota. Davis, 60, posted regular updates on an Internet Web site about his campaign and sent e-mails to his son and various agencies indicating that he was about to commit suicide.
"My concern is that your office might attempt to intervene," he wrote to Fairfax police and sheriff's officials Jan. 15. "Anyone attempting to intervene is a VIGILANTE."
Police also believed that Davis had a gun.
On Jan. 24, police obtained a temporary detention order from a county magistrate. A detention order is based on advice from a mental health professional and allows police to immediately take into custody someone who "presents an imminent danger to self or others as a result of mental illness."
The day after Fairfax police obtained the order, the tactical unit set up outside Davis's town house near Fairfax Circle. After Lt. Tom Trapp tried to lure him out, Davis apparently spotted officers hiding behind bushes and tried to close the door.
Trapp grabbed Davis's shirt, according to court records, but Davis spun away and ran inside. The officers followed him, and the brief shootout followed.
Lomonaco said it was only the third time in 24 years of serving thousands of warrants and detention orders that Fairfax tactical officers have returned fire.
But the issue is whether the police followed the well-established rule of "knock and announce," in which officers are required to give someone time to answer the door and peaceably comply with the warrant.
Baranyk said Fairfax police normally wait several minutes after knocking before making forcible entry, unless they hear or see things that indicate evidence is being destroyed or targets are fleeing.
But without those urgent circumstances, "knock and announce" remains the rule. And under Virginia law, judges in both the Davis and Park cases noted, a person "has the right to use reasonable force to repel an illegal arrest."
Klein said the jury in Davis's case will be instructed on just that point. "The issue for them to decide," Klein said, "is whether the force that was utilized by Mr. Davis was, in fact, reasonable."
© 2000 The Washington Post Company
By Tom Jackman
Washington Post Staff Writer
Monday, June 26, 2000; Page A01
For the second time since May, a Virginia court has issued a blistering rebuke of the Fairfax County police department's tactical unit, saying its black-clad officers illegally burst into homes--in one instance repeatedly shooting a man they were trying to take in for mental treatment.
The most recent episode promises to pose an intriguing question for a jury at the man's assault trial later this summer: How much force is "reasonable" to repel the police after they have illegally entered your home?
The question has never been decided in Virginia, but a Circuit Court judge has promised to frame the trial around the unit's conduct rather than the behavior of the defendant.
Fairfax's tactical unit handles such specialized assignments as hostage situations and high-risk search warrants. Its officers are highly trained to move quickly and stealthily. But their bulletproof vests, hoods and boots can create an intimidating aura and sometimes obscure identifying police logos.
The fact that the officers didn't identify themselves before entering two Fairfax homes has incurred the wrath of the state courts.
"Some of the judges of this court," Fairfax Circuit Judge Stanley P. Klein said from the bench earlier this month, "have reluctantly concluded that some members of the unit see the Fourth Amendment [prohibiting unreasonable search and seizure] as a distraction they need to work around rather than a requirement of the United States Constitution."
Fairfax police were shocked by the ferocity of Klein's language, saying they'd never heard complaints from judges about the tactical unit. In response, police plan an internal affairs investigation of the case before Klein, Deputy Chief Walter A. Baranyk said Friday.
"He's a person of high stature," Baranyk said of the judge. "We consider that a relatively serious comment. That type of comment in a public court can't go unaddressed."
The case unfolded one night in January, when the tactical officers piled into the Fairfax area town house rented by Keith B. Davis. The police were fearful that Davis was suicidal, and they had obtained a temporary detention order to take him to a hospital for psychiatric evaluation, court papers say.
A plainclothes member of the tactical unit tried to lure Davis outside by saying he'd accidentally hit Davis's car. But Davis didn't have a car, and he became suspicious and tried to dart back inside. A swarm of armored tactical officers followed, the papers say. Davis then grabbed a gun and fired at the officers, who had not yet identified themselves as police, the judge said.
The officers returned fire with bullets and less lethal "beanbag rounds" from a shotgun. Numerous beanbag rounds hit Davis in the body, and one bullet slashed through his face.
Police charged Davis with felony assault for shooting at the officers. In pretrial motions, his attorney tried to get the charge thrown out, saying the police illegally entered Davis's home without warning.
Klein agreed that the entry was illegal, but he wouldn't dismiss the assault charge, saying that if he did so, "any time that there was an unconstitutional police entry . . . a person in his or her home would have free rein to simply shoot and kill any of the police officers who effected entry."
But Klein then issued a vehement tongue-lashing. "There is, in fact, no Fairfax County Police Department Tactical Unit exception to the Fourth Amendment's requirements," he said. "And this judge has no intention of explicitly or implicitly creating such an exception."
Klein noted that a similar ruling had been handed down last month by the Virginia Court of Appeals in a 1997 drug case involving a search warrant for Jesse L. Park's apartment. Again, the tactical unit used a plainclothes officer to knock on the door, but according to court records, all she said was, "I'm sorry" before hooded officers stormed through the door while yelling, "Police--search warrant."
A Fairfax judge ruled that the search was legal, but the appeals court reversed that decision and ordered a new trial for Park, who was released earlier this month after almost two years in prison.
"The tactical team's rushed entry," Appeals Court Judge James W. Benton wrote, "is particularly troubling. . . . Given the circumstances then existing, any reasonable person would have feared from the black-clad intruders." Benton said that the officers' vests covered the word "Police," and that they never identified themselves before entering Park's apartment.
Baranyk said he wasn't familiar with the details or the ruling in the Park case. Fairfax Maj. Michael Lomonaco, a tactical unit veteran who helps train other such units around the country, said Fairfax officers typically have clear police markings on their clothing.
"Everybody has it at least one place on their uniform," Lomonaco said. "And along with police ID, they're also announcing verbally who they are."
Baranyk added: "We're there to save lives, not to go out and hurt people. We're not urban commandos."
Some defense lawyers disagree. "It's not just Fairfax, it's a nationwide problem," said Marvin D. Miller, an Alexandria lawyer who is representing Park. "They bang down the door and run in the house. That's normal. And that's dangerous."
Police officials would not discuss the specifics of either the Davis or Park case, because both remain open. Davis did not return phone calls seeking comment, and Park declined to be interviewed until his case is resolved. Klein also declined to be interviewed. Baranyk said the police will attempt to speak with him as part of their investigation.
"We don't believe they're cowboys," said Fairfax Commonwealth's Attorney Robert F. Horan Jr. "They have to make tough judgment calls, sometimes in a very narrow span of time. In a lot of ways, they're the easiest crowd to play Monday morning quarterback with. You can sit, surrounded by your books and case law, and make judgment calls. They've got to make them on the dot."
In Davis's case, he had been conducting a hunger strike for nearly a year to protest his 1978 suspension from practicing law in Minnesota. Davis, 60, posted regular updates on an Internet Web site about his campaign and sent e-mails to his son and various agencies indicating that he was about to commit suicide.
"My concern is that your office might attempt to intervene," he wrote to Fairfax police and sheriff's officials Jan. 15. "Anyone attempting to intervene is a VIGILANTE."
Police also believed that Davis had a gun.
On Jan. 24, police obtained a temporary detention order from a county magistrate. A detention order is based on advice from a mental health professional and allows police to immediately take into custody someone who "presents an imminent danger to self or others as a result of mental illness."
The day after Fairfax police obtained the order, the tactical unit set up outside Davis's town house near Fairfax Circle. After Lt. Tom Trapp tried to lure him out, Davis apparently spotted officers hiding behind bushes and tried to close the door.
Trapp grabbed Davis's shirt, according to court records, but Davis spun away and ran inside. The officers followed him, and the brief shootout followed.
Lomonaco said it was only the third time in 24 years of serving thousands of warrants and detention orders that Fairfax tactical officers have returned fire.
But the issue is whether the police followed the well-established rule of "knock and announce," in which officers are required to give someone time to answer the door and peaceably comply with the warrant.
Baranyk said Fairfax police normally wait several minutes after knocking before making forcible entry, unless they hear or see things that indicate evidence is being destroyed or targets are fleeing.
But without those urgent circumstances, "knock and announce" remains the rule. And under Virginia law, judges in both the Davis and Park cases noted, a person "has the right to use reasonable force to repel an illegal arrest."
Klein said the jury in Davis's case will be instructed on just that point. "The issue for them to decide," Klein said, "is whether the force that was utilized by Mr. Davis was, in fact, reasonable."
© 2000 The Washington Post Company
