Necessary and Reasonable
I want to begin by expressing my sincere respect and confidence in our police, and recognize their dedication to protecting our lives, our property, and our freedom. At the same time, it is clear that there is something systemically wrong with the law enforcement and justice system in the United States. The rule of law at all levels of government is being undermined and the respect for the law is eroding among the population. This must change.
In September 2007, the Private Security Company (PSC), Blackwater, operating under contract with the U.S. Department of State, opened fire on a crowd of civilians at Nisour Square, Baghdad, Iraq, killing 14. The use of force was unnecessary, excessive, and tragic. In addition to the loss of life, it fundamentally changed our relationship with the Iraqi people and damaged the reputation of the United States. After this event, legislative and departmental remedies were implemented to uphold accountability under the law for misconduct by PSCs. Noteworthy among these was the Congressional requirement to develop “business and operational standards” relevant to private security providers. At that time, I was the U.S. government’s technical expert on Private Security and the development of such standards fell to me.
Congress’ primary concern was the assurance that companies were competent and capable of performing their contracted services. The Defense Department went beyond that, incorporating provisions of the recently concluded Montreux Document, an international framework covering private military and security companies. We worked with the State Department and the Department of Justice, along with other stakeholders from the PSC industry, academia, human rights organizations, and representatives from other governments, incorporating respect for human rights as integral to all aspects of private security company operations. The most critical aspect of this work was the one element that distinguishes private security from any other business or government contractor. The use of force, up to and including deadly force.
The Department of Defense issues very specific rules for the use of force. These are orders specifying when force may be used, the limitations on that force, and the requirement to de-escalate force as soon as it is safe to do so. Since 2008, contractors accompanying the armed forces have been subject to military justice, making those rules enforceable by both U.S. civilian and military law. Most PSCs, however, are not Defense Department contractors, or work for any U.S. agency or foreign government. The standards, therefore, need to address the use of force applicable to any legal context by any PSC from any country.
We began with the firm understanding that PSC personnel do not have the right to engage in combat and under no circumstances did they possess combatant immunity. The use of force by PSC personnel is restricted by their civilian status, similar to police. We were guided by two fundamental principles: There is an inherent right to life, which includes the right of self-defense and the defense of others against unlawful attack. Any use of force must be necessary and reasonable. That is, it must be necessary to use force to protect lives and property and the force used must be reasonable in intensity, duration, and magnitude.
Prior work in this area was critical to success. This work included existing use of force procedures in Defense Department directives and the UN Basic Principles for Use of Force and Firearms by Law Enforcement Officers. Most important was review and comment by the U.S. Department of Justice. The language of the standard includes clear requirements to follow local law, when it is operative and wherever it is more restrictive than the standard, and to report any use of force. Soon after publication, the use of force guidance in the standards formed an integral part of the UN Office of Drug and Crime sponsored “Handbook on the Use of Force for Private Security Companies”. Since the publication of these documents, inappropriate use of force by PSC personnel has gone from usual to exceptional.
Considering that we based the standards requirements on the use of force principles common to U.S. police departments, and considering the success of these standards, recent police actions are very concerning. This includes the recent murder of George Floyd by Derek Chauvin and the other policemen with him. Sadly, this tragedy was not unique. There are frequent reports of the use of force by police that appear inconsistent with what is necessary and reasonable. Even if Chauvin and those like him represent only.01% of police, the effect of that misconduct adversely affects the relationship of the police with a large segment of the population, creating a spiral of fear and distrust. Such incidents, however, do not appear out of nowhere. They are the result of a long chain of events. A chain which could be broken at any link. What were the links that led to Minneapolis, or St. Louis, or New York, or Atlanta? I do not claim to have the right answers. I can try, however, to ask the right questions.
News about the murder of George Floyd is displacing news about another recent event; the death of Breonna Taylor in Louisville as the result of a “No-Knock” warrant. A no-knock warrant is an exception to the normal procedure called, “knock and announce.” In no-knock, police are allowed to execute forcible entry, often with a battering ram and considerable destruction of property. The justification is a situation where the official requesting the warrant provides evidence that “knock and announce” would place police at risk of serious injury or death or would allow the destruction of the evidence the warrant is intended to seize. There are an estimated 20,000 no-knock warrants every year in the United States. There are strong indications that the widespread use of these warrants is not necessary and may violate Supreme Court restrictions on their use. Does the proliferation of no-knock warrants indicate a rapid movement away from the rule of law and erosion of trust and confidence in the police?
No-knock warrants are also dangerous. The American Civil Liberties Union cited the dangers of no-knock warrants in 2015, arguing, “No-knock warrants pose a danger to the lives of police officers as well as innocent civilians.” In most states, homeowners are allowed to use deadly force to resist persons breaking and entering while the premises are occupied. The ACLU noted, “If the police do not successfully communicate their identity in the split-second when they kick down the door, they are likely to encounter gunfire from citizens who believe they are justifiably defending their homes from lawless intruders.”
This is what happened in Louisville. Just after midnight on March 13, 2020, plainclothes narcotics officers conducted a no-knock raid at the home of Breonna Taylor. Taylor’s boyfriend woke up and grabbed his legally owned firearm. He fired at the perceived intruders, and the police returned fire, shooting at least 20 bullets. Eight of these hit Taylor, killing her. The boyfriend was arrested for the attempted murder of a policeman, but charges were later dismissed. There were no drugs and the person the police were looking for was already in custody at the time of the raid. What risk analysis justified violent entry into Breonna Taylor’s residence?
This isn’t a matter of a few rogue policemen. The Fourth Amendment to the U.S. Constitution requires a warrant for any search. Like any warrant, no-knock warrants have to be approved by a judge. The information provided, under oath and penalty of perjury, must be factually correct and must be specific. Warrants cannot be fishing expeditions. In 1997, the Supreme Court placed further restrictions on no-knock warrants. The unanimous decision clearly stated, “The Fourth Amendment does not permit a blanket exception to the knock and announce requirement for felony drug investigations.” The decision requires an issuing court to evaluate the reasonableness of each warrant request, examining “the facts and circumstances of the particular entry justifying why knocking and announcing would be dangerous or futile, or that it would inhibit the effective investigation of the crime.” How did the court fulfill this responsibility in issuing the warrant for Breonna Taylor’s residence?
Unfortunately, in 2006 the Supreme Court undermined the effectiveness of this requirement, ruling that even if the police violate the knock-and-announce rule, they can still use any incriminating evidence found inside. This was a significant blow to both demanding reasonableness in no-knock entry and the protections of the 4th Amendment.
We are faced with a situation where the Supreme Court created ambiguity, judges allow no-knock entries without confirming necessity, and police use force that may appear unreasonable in intensity and magnitude. In executing these raids, police create the risk of being misidentified as burglars, and inviting a lethal response by the resident…a particularly unwarranted risk in the 10 percent of cases where the police raid the wrong residence. In some cases, the justifying information is provided by an informant; information that sometimes proves to be misleading, false, and tragic. The outcome of this chain of events does not only affect the African-American community. Almost half of all no-knock raids are against Caucasian subjects and households.
These are just some potential links in a long chain leading to the death of Breonna Taylor. A chain that may also produce a culture attaching low importance to necessity and reasonableness and undermines of lack of commitment to the rule of law. This appears in less violent encounters, too, such as rough handling and handcuffing of cooperative subjects. The death of George Foley began as a non-violent arrest.
Returning to private security, the internationally accepted standard modeled its use of force language on that used by police departments throughout the United States. The language that requires the use of force, any force, must be determined as necessary for the protection of lives and property. Where the use of force is necessary, it must be limited to that which is reasonable in intensity, duration, and magnitude. Further, there must be a continuum of force, de-escalating as soon as higher degrees of force are no longer necessary. For private security providers who adopt these standards, and the organizations that hire them, this has been successful. Sadly, it seems to be less successful in the law enforcement organizations we modeled. Why do PSCs seem more successful in applying the use of force principles than the police?
I do not propose to have any solution for these recent and ongoing tragedies. I can only propose questions we can ask as we carefully examine the chain of events…and break or repair links when necessary.