No.

15-193
IN THE

Supreme Court of the United States

ANDREW KANE,
Petitioner,
v.
BRIAN LEWIS, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
MOTION BY SETH STOUGHTON FOR LEAVE
TO FILE A BRIEF AS AMICUS CURIAE, AND
AMICUS CURIAE BRIEF
SUPPORTING PETITIONER
HENRY W. ASBILL
Counsel of Record
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
(202) 879-5414
hasbill@jonesday.com
IAN SAMUEL
JONES DAY
222 East 41st Street
New York, NY 10017

Counsel for Amicus Curiae

No. 15-193
In the Supreme Court of the United States
ANDREW KANE, PETITIONER
v.
BRIAN LEWIS, ET AL., RESPONDENTS
Motion by Seth Stoughton for Leave to File
Brief as Amicus Curiae in Support of Petitioner
Seth Stoughton hereby moves this Court, pursuant
to Rule 37.2, for leave to file the attached brief as
amicus curiae in support of petitioner. Petitioner consents to the filing of this amicus curiae brief. Respondents do not consent, and have not indicated
whether they will oppose this motion for leave to file
the brief. Counsel of record for both the petitioner
and the respondent received timely notice of amicus
curiaes intent to file this brief, pursuant to Rule 37
of this Court.
Seth W. Stoughton is an Assistant Professor at the
University of South Carolina School of Law. His
scholarship focuses on the regulation of police and
has been published in the Minnesota Law Review, the
Tulane Law Review, the Virginia Law Review, and
other journals. He regularly presents to law enforcement audiences, consults with police agencies, and
testifies as an expert in litigation relating to police
procedure. He has also appeared on national and international media and written about policing for The

2
New York Times, The Atlantic, TIME, and other news
publications. His teaching includes courses on criminal law, criminal procedure, and a seminar on the
governmental regulation of vice.
Professor Stoughton also served as a uniformed patrol officer with the Tallahassee Police Department
for five years. In that time, he trained other officers
in report writing, helped create policies to govern the
use of new technologies, earned multiple instructor
and operator certifications, and taught personal safety and self-defense courses in the community. In 2004,
he received a Formal Achievement Award for his role
as a founding member of the Special Response Team.
Professor Stoughton has an interest in this case
because the court of appeals decision is premised on
a fundamental misunderstanding of police tactics, the
purposes of paramilitary police procedures, and the
inherent dangers thereof. By their nature, tactics of
the sort used in this case are intended to disorient
and confuse the occupants of a building. That is not a
side effect of an unannounced, dynamic entrythat
is its very object.
But the court of appeals in this case assumed that
a reasonable jury could not have concluded that the
police tactics did what they were intended to do. Indeed, the court of appeals concluded that the occupant must have had a lucid and well-considered understanding of just what was happening during the
last moments of his life, andthereforethe only
permissible explanation for his behavior was that he
elected to charge with a sheathed knife at a team of
men he knew to be police officers whom he knew had
their guns drawn.

3
The attached amicus brief is submitted to correct
that wide gap between the court of appeals fundamentally mistaken understanding of police raids and
the practical reality of such encounters, and to bring
to the Courts attention that paramilitary, SWATstyle raids like the one at issue here are increasingly
common.
For the foregoing reasons, the motion of Professor
Stoughton to file a brief as amicus curiae in support
of Petitioner should be granted.
Respectfully submitted.
HENRY W. ASBILL
Counsel of Record
JONES DAY
51 Louisiana Ave., N.W.
Washington, D.C. 20001
(202) 879-5414
hasbill@jonesday.com
IAN SAMUEL
JONES DAY
222 East 41st Street
New York, NY 10017
September 14, 2015

Counsel for Amicus Curiae

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF AMICUS CURIAE............................ 1
STATEMENT ............................................................. 2
SUMMARY OF ARGUMENT .................................... 4
ARGUMENT ............................................................... 5
A. The Police Tactics Used Here Are Designed to Create Confusion.......................... 5
B. Because the Tactics at Issue in This
Case Are Becoming Increasingly
Common, Exercise of this Courts Supervisory Power is Warranted ................... 12
CONCLUSION ......................................................... 17

ii
TABLE OF AUTHORITIES
Page(s)
CASES
Graham v. Connor,
490 U.S. 386 (1989)................................................ 10
Johnson v. Glick,
481 F.2d 1028 (2d Cir. 1973) ................................. 10
OTHER AUTHORITIES
Ronald J. Adams et al., STREET
SURVIVAL: TACTICS FOR ARMED
ENCOUNTERS (1980) ................................................. 7
Alexis Artwohl & Loren W. Christensen,
DEADLY FORCE ENCOUNTERS (1997) ................ 10, 11
Radley Balko, Meet 59-Year-Old David
Hooks, The Latest Drug Raid Fatality,
The Washington Post (October 6,
2014), available at http://goo.gl/
DjJEr3 .................................................................... 15
Radley Balko, OVERKILL: THE RISE OF
PARAMILITARY POLICE RAIDS IN
AMERICA (2006) .................................... 11, 12, 13, 14
Tim Carpenter, Broken Hearts, Broken
Lives, Topeka-Capital Journal (Oct. 9,
2005), available at http://goo.gl/
j4YTTw ................................................................... 15
Edward Erickson, Jr., Commando Cops,
Orlando Weekly (May 7, 1998),
available at http://goo.gl/idFpnC ........................... 14
Jack R. Greene, THE ENCYCLOPEDIA OF
POLICE SCIENCE (2007) ............................................ 7

iii
TABLE OF AUTHORITIES
(continued)
Page(s)
Charles Heal, SOUND DOCTRINE: A
TACTICAL PRIMER (2000) ...................................... 8, 9
Tracy Hightower, Boyds O.O.D.A. Loop
and How We Use It, Tactical
Response, https://tacticalresponse.com
/blogs/library/18649427-boyd-s-o-o-da-loop-and-how-we-use-it ........................................ 8
Peter Kraska & V. E. Kappeler,
Militarizing American Police: The
Rise and Normalization of
Paramilitary Units, SOCIAL PROBLEMS
(1997)...................................................................... 13
Law Enforcement Officers Killed, United
States, 19612012, Sourcebook of
Criminal Justice Statistics, University of Albany (2012)................................................. 13
Man Killed by Cops After Car Thief
Alleges Meth Find, Atlanta JournalConstitution (October 3, 2014),
available at http://goo.gl/U3nmQN ....................... 15
Charles Remsberg, THE TACTICAL EDGE:
SURVIVING HIGH RISK PATROL (1986) .......... 6, 7, 8, 9
Britt Robson, Friendly Fire,
MINNEAPOLIS CITY PAGES (Sept. 17,
1997) ....................................................................... 14
Robert Snow, SWAT TEAMS: EXPLOSIVE
FACE-OFFS WITH AMERICAS DEADLIEST
CRIMINALS (2000) ............................................. 12, 13

iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Texas Assn of Police Explorers,
BUILDING CLEARING / TACTICAL RAID,
available at http://www.co.wise.tx.us/
constable/Downloads/Building%20Cle
aring,Tactical%20Raid.pdf ...................................... 8
Utah Commn on Criminal & Juvenile
Justice, 2014 Law Enforcement
Transparency Report, available at
http://libertasutah.org/drop/sb185_
2014.pdf .................................................................. 14

INTEREST OF AMICUS CURIAE 1

Seth W. Stoughton is an Assistant Professor at the
University of South Carolina School of Law. His
scholarship focuses on the regulation of police and
has been published in the Minnesota Law Review, the
Tulane Law Review, the Virginia Law Review, and
other journals. He regularly presents to law enforcement audiences, consults with police agencies, and
testifies as an expert in litigation relating to police
procedure. He has also appeared on national and international media and written about policing for The
New York Times, The Atlantic, TIME, and other news
publications. His teaching includes courses on criminal law, criminal procedure, and a seminar on the
governmental regulation of vice.
Professor Stoughton also served as a uniformed patrol officer with the Tallahassee Police Department
for five years. In that time, he trained other officers
in report writing, helped create policies to govern the
use of new technologies, earned multiple instructor
and operator certifications, and taught personal safety and self-defense courses in the community. In 2004,
he received a Formal Achievement Award for his role
as a founding member of the Special Response Team.
Professor Stoughton has an interest in this case
because the court of appeals decision is not just legally mistakenthough it is. It is also premised on a
fundamental misunderstanding of police tactics, the
1

No counsel for any party authored this brief in whole or in

part, and no person or entity other than amicus and his counsel
made a monetary contribution to the preparation or submission
of this brief.

2
purposes of paramilitary police procedures, and the
inherent dangers thereof. By their nature, tactics of
the sort used in this case are intended to disorient
and confuse the occupants of a building. That is not a
side effect of an unannounced, dynamic entrythat
is its very object. But the court of appeals below assumed that a reasonable jury could not have concluded that the police tactics did what they were intended
to do. Indeed, the court of appeals concluded that the
occupant must have had a lucid and well-considered
understanding of just what was happening during
the last moments of his life, andthereforethe only
permissible explanation for his behavior was that he
elected to charge with a sheathed knife at a team of
men he knew to be police officers whom he knew had
their guns drawn.
This amicus brief is submitted to correct that wide
gap between the court of appeals fundamentally mistaken understanding of police raids and the practical
reality of such encounters. Moreover, as paramilitary,
SWAT-style raids become increasingly common, the
judiciary is likely to confront more cases like these.
This Courts supervisory powers would be usefully
expended to correct the error below, to ensure that
juries drawn from the community can continue to enjoy their traditional and primary role in deciding
whom they believe about what happens in such raids.
STATEMENT
For amicus purposes, the salient facts are these.
This case arises out of a SWAT-style raid conducted
at the apartment of Andrew Cornish. Pet. App. 3a.
The police had found trace amounts of marijuana in a
dumpster outside of Cornishs duplex and secured a

3
warrant to search both apartments in the building.
Pet. App. 20a. The police electedthe record does not
reveal whyto execute this warrant by using a
SWAT team to perform a paramilitary-style predawn raid.
At approximately 4:30 a.m. the morning of the raid,
the officers (respondents here) arrived heavily armed,
brought a battering ram, and were wearing SWAT
gear. Pet. App. 37a, 39a. They certainly were not
wearing the traditional and easily recognizable blue
police uniformrather, they donned military-style
helmets with goggle[s], as well as bulletproof
vest[s]. Pet. App. 16a n.9. Although the officers
claimed that they knocked and announced their presence before entering, the other residents of the building (who were, like Cornish, presumably asleep) testified that they did not hear anything, Pet. App. 3a4a,
and the jury concluded that the officers entered without announcing their presence, Pet. App. 8a.
The officers testified that they entered Cornishs
home with their guns drawn, approached his bedroom, and tried to kick the door open. Pet. App. 4a.
According to the officers, Cornish then suddenly
emerged from his bedroom carrying a sheathed knife.
Pet App. 4a. One of the officers then stepped backward and shot Cornish twice in the head, killing him
instantly. Pet. App. 5a. A small personal amount of
marijuana was eventually located in Cornishs bedroom, Pet. App. 25a, and the knifestill in its
sheathwas recovered from under his corpse, Pet.
App. 5a. The entire incident (from entry until Cornishs shooting) lasted around thirty seconds. Pet.
App. 4a5a.

4
Following a trial, the jury concluded that the officers had not knocked or announced their presence and
that their failure to do so had been the cause of Cornishs death. The court of appeals reversed, concluding that (despite what the jury found) Cornish must
have known that the men in his apartment were police officers, that no reasonable jury could conclude
otherwise, and that this intervening eventa free
and considered decision to attack, with a sheathed
knife, a team of police officers with their guns
drawnwas an intervening cause of his death. Pet.
App. 16a17a (emphasis added).
SUMMARY OF ARGUMENT
The court of appeals held that it was literally inconceivable that Cornish could have been confused
about who had broken into his apartmentsuch that
no reasonable jury could conclude otherwise. This
conclusion rests on a fundamental misunderstanding
about police tactics. The officers here deliberately
employed paramilitary, SWAT-style tactics that are
designed to produce exactly the result the court of
appeals found so incredible: confusion, disorientation,
and misapprehension. Rushing into someones house,
unannounced and before the break of dawn, is supposed to surprise and confuse occupantsthat is why
police do it.
The court of appeals error is especially damaging,
however, because paramilitary police raids are increasingly common. Such units are now routinely
used to serve even very low-level drug warrants, as in
this case, leading to an increased risk of exactly the
sort of tragic mistake that occurred here. As a result,
the number of cases like this onewhere the jury is

5
called upon to make credibility determinations and
decide whom they believe about what really happened, often in situations where the officers are the
only ones left aliveis likely to increase. This Court
should exercise its supervisory powers and summarily reverse the judgment below to ensure that the jury
retains its traditional and vital role in deciding the
facts in these increasingly common raids.
ARGUMENT
THE JUDGMENT BELOW SHOULD BE
SUMMARILY REVERSED BECAUSE IT RESTS
ON A GRAVE MISUNDERSTANDING OF THE
EFFECTS OF INCREASINGLY COMMON
PARAMILITARY POLICE TACTICS
A. The Police Tactics Used Here Are Designed to Create Confusion
The central premise of the court of appeals opinion
is that Cornishdespite what the jury concluded
must have known that the men in his apartment
were police officers, and no reasonable jury could
conclude otherwise. Pet. App. 16a17a (emphasis
added). In other words, the court of appeals concluded that it was literally impossible for Cornish to have
misunderstood what was happening in his apartment,
and so he must have decidedfor reasons unknownto advance with a [sheathed] knife on people he knew to be [heavily armed] police officers. Pet.
App. 16a n.9. Thatas the petition amply establishes,
Pet. 1524would be a dubious conclusion even in
an ordinary case, simply as a matter of the deference
owed to a jurys findings of fact.

6
But here, the court of appeals conclusion is almost
exactly backward. The tactics that the police used in
this case were created, developed, refined, and employed precisely because they create exactly the sort
of confusion and disorientation that the court of appeals found impossible to credit. A half-century of experience and work by police departments across the
country have resulted in the development of sophisticated tactics that are designed to confuse and disorient the occupants of a building that is being searched.
It is, by way of background, always extremely dangerous for a police officer to enter the residence of a
suspect uninvted. For that reason, patrol officers
have been instructed for decades that if there is any
other reasonable option DO NOT GO IN
especially if [they] have good evidence that one or
more suspects actually are inside. Charles Remsberg,
THE TACTICAL EDGE: SURVIVING HIGH RISK PATROL 82
(1986). 2 Compared to the dangers of entry, it is better
to wait outside, and wait for the suspect to come
out on their own and unwittingly run into your trap.
Ibid.
Where the objective is to search the home, of
course, entry is inevitable. In that situation, good police practiceas much for the officers safety as for
the residentsis to clearly announce ones identity
as an officer before entering. Police are taught to adRemsbergs training manuals, including this one, are widely viewed as modern Bibles for police officerspolice academy
training across the country is based heavily on his influential
work, and his books are treated as mandatory reading by some
police instructors; amicus was given a free copy during his time
at the academy.
2

7
dress the suspect(s) who may be inside, which may
prompt an innocent party or a harmless suspect to
emerge. Id., at 90. And by clearly announcing their
identity, an officer may be able to buy time in which
to better establish the suspects identity and intentionsafter all, the last thing [an officer] want[s] is
to use deadly force against someone who did not
commit a crime. Ronald J. Adams et al., STREET
SURVIVAL: TACTICS FOR ARMED ENCOUNTERS 109
(1980). Seen from this perspective, the knock-andannounce requirement is a critical protection not just
for building occupants, but also for the officer herself.
It guarantees the officers safety, and protects the officer from doing something tragic.
To be sure, there are situationsrare onesin
which officers need to enter a home, but have good
reason to believe that announcing their presence and
intentions beforehand would create an unacceptably
high risk of violent resistance or the loss of important
evidence. In that situation, the police may elect to
engage in what is typically called a dynamic entrya no-knock or quick-knock raid[] that place[s]
the citizens and police in an extremely volatile position, necessitating extraordinary measures. Jack R.
Greene, THE ENCYCLOPEDIA OF POLICE SCIENCE 792
(2007). Such raids are frequently conducted during
the predawn hours, usually in black military BDUs,
ninja style hoods, and military helmets. Ibid. Rapid
entry is gained using specialized battering rams or
entry explosives, and the police may use flash-bang
grenades designed to temporarily disorient the occupants. Ibid.
The timing, equipment, and tactics of a dynamic
entry are grounded in an understanding of the

8
OODA Loopshort for Observe, Orient, Decide
and Act. See Tracy A. Hightower, Boyds O.O.D.A.
Loop and How We Use It, Tactical Response,
available
at
https://tacticalresponse.com/blogs/
library/18649427-boyd-s-o-o-d-a-loop-and-how-weuse-it. The OODA Loop is a simplified model of
human reactions, founded on the idea that people
take time to process new information, decide what to
do, and implement that decision. To minimize a
suspects opportunity to resist, SWAT officers are
trained to overwhelm or short-circuit the suspects
ability to observe what is going on, to orient
themselves to events, and to decide how to respond.
Rapid entry intentionally disrupts the suspects
OODA loopincreasing the amount of time that a
suspect needs to be able to react. Indeed, officers are
taught that the dilemma, disorientation, confusion,
and sometimes panic created in the mind of the
[suspect] must be fully exploited as a measure of
control. Texas Association of Police Explorers,
BUILDING CLEARING / TACTICAL RAID 2, available at
http://www.co.wise.tx.us/constable/Downloads/Buildi
ng%20Clearing,Tactical%20Raid.pdf.
During such a raid, police go in hard and fast, relying on speed, surprise, and radical tactics that are
intended to create a situation in which, from the suspects perspective, one second there is nothing happening and the next all hell breaks loose. Remsberg,
supra, at 229. The result, by design, is a confused
suspect. Ibid. A suspect can resist only after making
it through the OODA process, but that takes time
and one method of depriving the suspect of time is
by a surprise. Charles Heal, SOUND DOCTRINE: A
TACTICAL PRIMER 79 (2000). Because all human be-

9
ings are handicapped by an inability to instantly
process and react to a new stimulus, surprise deprives a suspect of the ability to react to new circumstances effectively. Ibid. The tactics accompanying
the no-knock raid have the ability to so overwhelm a
suspects ability to comprehend what is happening
that his reactions are slowed. Ibid.
In other words, a no-knock or quick-knock raid is
designed to ensure that the occupant is caught off
guard, is unclear about what is happening, and is
generally too disoriented to react in a considered way.
Ideally, officers establish control of the scene so
quickly that, by the time the suspect has overcome
his confusion, he has no opportunity to resist. But not
every situation meets that ideal. The law enforcement community has known for decades that a dynamic assault is infinitely more dangerous than
other entry tactics and its use is accordingly very
limited. Remsberg, supra, at 237.
Conceived that way, dynamic entry is like dynamite: powerful, but unstable, and inherently dangerousand only to be used in situations where nothing
else will do. In a hostage situation, for example, it is
no use knocking on the front door and announcing
police, open upindeed, doing so may threaten the
lives of the people within. In such a situation, there
are no good options, and a dynamic entry with a
SWAT team may be judged the least dangerous of a
set of dangerous options. But such an entry is always
accompanied by the risks inherent to a situation
where confusion and disorientation are combined
with speed and aggression such that, as Remsberg
put it, all hell breaks loose. A dynamic entry is intended to be disorienting and confusing to prevent a

10
buildings occupants from acting, but it can also preclude them from accurately observing the situation.
Inevitably, some individuals will react to a dynamic
assault without realizing it is being performed by law
enforcement. In other words, under stressful conditions, people will make reasonable mistakes.
Ironically, courts have long understood the above
principles when it comes to evaluating the use of
force by officers. In Graham v. Connor, 490 U.S. 386,
39697 (1989), this Court reasoned that police officers are often forced to make split-second judgments
under conditions that are tense, uncertain, and rapidly evolvingand as a result, courts are not to
evaluate the reasonableness of the use of force with
the 20/20 vision of hindsight. A lethal confrontation
is not judged in light of what may later seem unnecessary in the peace of a judges chambers. Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
The rule of Graham is founded on good practical
wisdomand its description of the pressures facing
an officer in a potentially lethal confrontation (tense,
uncertain, and rapidly evolving) has been quoted to
countless generations of police trainees. Among other
things, the psychological and perceptual effects of
fearespecially sudden and unexpected fearcan
reduce an officers ability to assess accurately and respond appropriately to visual and audio stimuli. See
Alexis Artwohl & Loren W. Christensen, Deadly
Force Encounters 3850 (1997).
But the door swings both ways. The police here intentionally created a situation for Cornish that was
tense, uncertain, and rapidly evolving. Moreover, unlike a police officer, Cornish was not trained to use

11
to [his] advantage the natural physical, emotional,
perceptual, and cognitive changes that occur during
the fear response. Ibid. The jury (perhaps displaying
some of the same practical wisdom that inspired
Graham) concluded that the police were successful in
their effort to disorient and confuse Cornish; that he
had not known that the men who broke down his
door were officers; and, therefore, that the officers
failure to knock and announce their presence was the
cause of his tragic death.
The jurys conclusion was, as a matter of blackletter police tactics (not to mention common sense),
completely sound. The policefor reasons unknownchose to serve a routine and low-level drug
warrant against a non-violent suspect in an incredibly high-risk way, using tactics that are by their
very nature designed to catch victims at their most
vulnerable, disoriented, and in a state of mind least
capable of sound judgment. Radley Balko, OVERKILL:
THE RISE OF PARAMILITARY POLICE RAIDS IN AMERICA
32 (2006). But it is exactly the intentionally inflicted
confusion and disorientation, the forced entry into
the home, and the overwhelming show of force that
increase the risk of dangerous mistakes on both
sidesand it is not hard to see how an occupant
asleep in a room far away from the point of entry
might not be aware that the intruders are police officers. Id., at 20.
The court of appeals was therefore quite wrong to
conclude that Cornish must have known that the men
were officersthe whole point of the officers dynamic
entry was to gain a tactical advantage over Cornish
by using confusion and disorientation to deny him the
ordinary use of his faculties.

12
B. Because the Tactics at Issue in This
Case Are Becoming Increasingly Common, Exercise of this Courts Supervisory Power is Warranted
As the petitioner concedes (Pet. 29), this case does
not satisfy the traditional criteria for certiorari. Petitioner contends that summary reversal is nonetheless
appropriate, because the decision below badly misapprehends the deference that appellate courts owe to
jury verdicts. That contention is correct, and amicus
agrees that summary reversal is warranted on that
ground alone.
But there is an additional, equally compelling reason for this Court to exercise its supervisory powers:
the paramilitary tactics used here are becoming dramatically more common. The situation presented in
this case is, unfortunately, likely to arise again.
When it does, this Court should already have announced clearly that determinations about what really happened in such raids are questions for the jury, and appellate courts are not to set them aside
simply because the judges believe a different tale.
The idea for what we now call SWAT teams (Special Weapons and Tactics) was born in Los Angeles
during the riots of the 1960s. See Balko, supra, at 6.
But in an era of social turmoil, the concept quickly
spread. The tipping point came in August 1966, when
a former Marine barricaded himself at the top of a
clock tower in Texas and shot 46 people, 15 of whom
died, while the police struggled for more than 90
minutes to remove him. Robert Snow, SWAT TEAMS:
EXPLOSIVE FACE-OFFS WITH AMERICAS DEADLIEST
CRIMINALS 5 (2000). The incident marked the birth

13
date of the modern police SWAT concept, as public
horror over the clock-tower shooting prompted the
formation of SWAT teams in police departments
across the country during the 1970s. Id., at 7.
The 1970s were an exceptionally dangerous time to
be a police officer. In the ten-year period ending in
1980, nearly 115 officers had been murdered in the
line of duty every year. In 1973 alone, there were 134
such killings. See Law Enforcement Officers Killed,
United States, 19612012, Sourcebook of Criminal
Justice Statistics Table 3.154.2012, University of Albany (2012) (data drawn from FBIs Uniform Crime
Reporting program). But even during those dangerous times, SWAT teams and other paramilitary units
were used sparinglyfor example, in bank robberies
or hostage situations. Balko, supra, at 4. Because
SWAT teams were conceived to respond to genuine
criseslike a shooter at the top of a clock tower
they were generally used accordingly, and no-knock
raids were restricted to situations where innocent
lives were determined to be at imminent risk. Ibid.
That, for the reasons discussed above, is good policing:
SWAT-style no-knock raids are an important tool for
police, but because of the inherent dangers, they
should not be used except when truly necessary.
The growth of SWAT teams continued until, by
1997, 90 percent of cities with populations of at least
50,000 people had at least one paramilitary unit
twice as many as ten years earlier. Peter Kraska & V.
E. Kappeler, Militarizing American Police: The Rise
and Normalization of Paramilitary Units, SOCIAL
PROBLEMS (1997). Typically, such units are justified
in case of a hostage situation or a Columbine-type
incident. Balko, supra, at 9. Fortunately, most com-

14
munities do not have frequent hostage situations or
active shooters.
But once created, paramilitary units are not allowed to simply lie dormant. Regardless of their stated justifications, SWAT teams are inevitably used
far more frequently, mostly in the service of drug
warrants. Ibid. The result is that the sort of raid at
issue in this case is becoming extremely, and increasingly, common. In 1971, there were four SWAT raids
in the entire country. See Edward Ericson, Jr., Commando Cops, Orlando Weekly (May 7, 1998), available at goo.gl/idFpnC. By the early 1980s, there were
3,000 SWAT deployments per year; by 1996, 30,000;
and by 2001, 40,000. Balko, supra, at 11.
The expanding use was not caused by increasing
crime. Between 1980 and 1995, the number of times
that SWAT units were dispatched increased by 538
percent while the crime rate was flat. Ericson, supra.
Minneapolis alone had more than 700 paramilitary
drug raids in 1996. Britt Robson, Friendly Fire,
MINNEAPOLIS CITY PAGES (Sept. 17, 1997) (describing
a drug raid in which a police officer was shot by one
of his own colleagues while searching a home at
which a marijuana sale had occurred). In 2014, Utah,
the only state that currently tracks police tactical
teams, reported that more than 78 percent of deployments related to drugs; by contrast, a mere 2.33
percent of deployments related to active shooters
(0.36 percent), barricaded suspects (0.54 percent),
and hostage situations (1.43 percent) combined. Utah
Commission on Criminal and Juvenile Justice, 2014
Law Enforcement Transparency Report, at 5, available at http://libertasutah.org/drop/sb185_2014.pdf

15
The situation presented by this case is therefore
likely to recur, as the routine use of SWAT teams and
tactics (in situations far removed from the sort that
led to their creation) leads to the kinds of tragic consequences seen here. In October 2014, for example, a
thief stole a car from the home of David Hooks, a 59year-old grandfather who lived in rural Georgia. See
Man Killed by Cops After Car Thief Alleges Meth
Find, Atlanta Journal-Constitution (October 3, 2014)
available at goo.gl/U3nmQN. When the police arrested the thief, they found methamphetamine on him
but he told them that he had found it in the car he
had stolen. Ibid. Evidently believing this story, officers dressed in camouflage raided Hooks house at 11
p.m. that night. Ibid. The police broke down the back
door, shot Hooks sixteen times, and searched his
home for 44 hours. Ibid. No drugs were found. Ibid.
In Hooks case, just as in this one, the police used a
paramilitary SWAT unit and did not knock or announce their presence. Ibid. There, just as here, this
led to a serious misunderstanding: Hooks wife
thought that [t]he burglars [were] back, and
warned her husband accordingly just before he went
downstairs where the police killed him. Radley Balko,
Meet 59-Year-Old David Hooks, The Latest Drug
Raid Fatality, The Washington Post (October 6, 2014),
available at goo.gl/DjJEr3. There are many other
tragic examplesand often, it is the officers themselves who are injured or killed when an occupant
mistakes them for burglars. See, e.g., Tim Carpenter,
Broken Hearts, Broken Lives, Topeka Capital-Journal
(Oct. 9, 2005), available at goo.gl/j4YTTw (describing
a 2:50 a.m. police raid on a college student suspected
of selling marijuana, which caused the student

16
assuming he was being robbedto shoot and kill one
of the intruders). These tactics, in other words, are
not just dangerous to the occupants; they are dangerous for the officers, for bystanders, and just about
everyone else.
It is not for this Court to say whether, as a policy
matter, paramilitary SWAT units are desirable
things. It is not, in fact, a decision for any court. The
issue is one for the people themselves, as they act
through their legislatures and public officials to set
local policy. But so, too, is the question of what happens when such units go awry, as the people act
through their juries to enforce the Constitutions
hard-won guarantees against unreasonable searches
and seizures. And that is precisely the problem with
the court of appeals decision. It deprives the community of one of the only means it has to review and
oversee the use of these increasingly common paramilitary units. If a jury is not permitted to say we
believe that this illegal no-knock drug raid was the
cause of an avoidable death, then a critically important check on the use of these tactics will be gone.
The circumstances of this case are not, in sum and
unfortunately, unusual. Tragic mistakes in paramilitary police raids are common and likely to become
moreso. It is therefore a worthwhile exercise of this
Courts supervisory power to summarily reverse the
judgment below, to ensure that courts of appeals allow the jury to decide for itself what really happened
in such deaths.

17
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted, and the judgment of the
Fourth Circuit should be reversed.
Respectfully submitted.
HENRY W. ASBILL
Counsel of Record
JONES DAY
51 Louisiana Ave., N.W.
Washington, D.C. 20001
(202) 879-5414
hasbill@jonesday.com
IAN SAMUEL
JONES DAY
222 East 41st Street
New York, NY 10017
September 14, 2015

Counsel for Amicus Curiae