The following are some of the important excerpts from our First Annual Fourth Amendment Forum. They are provided with time codes in case you are interested in watching that portion of the video to see the comment in context.
Kara Dansky (ACLU attorney, national office), 12:50:
Where Utah stands out is that Utah is a leader in reform, actually. Utah passed a bill last session… that will require some reporting of SWAT deployments and different kinds of data that are collected in connection with SWAT deployments. I think this is a really positive trend… As far as I can tell, no state other than Utah is making much of a concerted effort to shine some light on this problem, and to bring some transparency and oversight. So I think that that’s great.
AG Sean Reyes, 20:45:
We really do want to empower law enforcement. At the same time, though, and particularly as the lawyers tasked with protecting the liberties of our own citizens, we want to make sure that they do it properly, without depriving those rights and those liberties in the process. I don’t think it’s a zero sum game. I think we can have effective and proper law enforcement, and still be vigilant about protecting the rights and liberties of our citizens.
AG Sean Reyes, 21:52:
Things like warrantless cell phone data. I think there was an 11th Circuit Court case, the Davis case, that just recently came out that was, I think, fantastic. It says, no, you need to go out and get a warrant. I think they had over 11,000 records from one individual. He may have been the worst guy in the world—it doesn’t matter. If you want to put a bad guy away, that’s great. You work hard, you do it the right way, and you don’t cheat. Using those warrantless electronic searches, in my mind, was cheating.
Sheriff Tracy (president, Utah Sheriffs Association), 25:13:
I’m a big proponent of the understanding that if you lose the people and their ability to interact with you and trust you enough to come to you when there’s an issue, then we’ve all lost. We will not be successful, you will suffer the effects of crime, and nobody will make this community safer.
Parker Douglas (chief of staff, AG’s office), 30:10:
The legislature should absolutely be addressing those questions [of forcible entry, when to restrain law enforcement, etc.]. We’re talking about the constitution setting the floor for our civil liberties—our legislature can surely raise the floor of it likes to. That’s why we have a democratically elected legislature, and that’s why we ask them to support measures that we support. … The no-knock [forcible entry] law basically codified standing Supreme Court law. There wasn’t much to it. The electronic device location amendments basically codified the changes in the Attorney General’s office…
DA Sim Gill, 36:00:
Certainly, Senate Bill 185, which talked about law enforcement transparency, I think that was really one of the most important [bills] that we’ve had. … The reporting component is very important, because what it really does is start a a very different kind of dialogue.
DA Sim Gill, 41:10:
What are we asking law enforcement to do? We are policing things that sometimes we… have failed to address, and we put more burdens on it. Is that the proper role of it? Look at the mentally ill people in our community. 2-4% of our population is mentally ill. But if you look at some of the most conservative data, 17-21% of our people in our jails and prisons are mentally ill. We’re using the jails and prisons as a means to warehouse our mentally ill population, because we’re not willing to make the economic commitment or the social policy commitments that are necessary to address that. So when we don’t address it, that dysfunction finds itself, then we ask law enforcement, or the criminal justice system, to respond to meet that deficit of social policy failure.
DA Sim Gill, 42:10:
In the United States of America we jail more human beings than any other country in the world. US is number one, China is number two, Russia is number three, Cuba is number four. Stop and think about that for a second. Because when you think about… three of the most repressive, totalitarian regimes in the history of the 20th century, [they] are the top three there, but we are the leaders of that. … We actually jail more people [per capita] than China does. And we are spending more money, we’re going to go bankrupt… and for all the money that we spend, what do we get back in return? 2/3 of the people will reoffend within 36 months and be back in there, so we’re not even getting a return on our investment. Who are we jailing? Why are we jailing them? These are important questions, because we are sometimes asking law enforcement to do things that sometimes we are failing to do as social policy responsibilities that we should be doing.
Chris Gebhardt (two-time former SWAT team leader), 45:10:
The national Tactical Officers Association requires SWAT teams to have a minimum of 20 hours of training per month. Now if you think about that, the average officer works 160 hours a month, and they’re required to do 20 of that in training. There is no requirement for these neighborhood units, these tactical units, to do any training.
AG Sean Reyes, 46:23:
Many of us, hopefully all of us, are appreciative of the idea that a lot of our entire system for law enforcement is upside down, when we look at the outcomes that we continue to have.
AG Sean Reyes, 47:25:
Specifically to the idea of forcible entry, I would say in only the most limited of circumstances. When peace officers feel like there’s imminent harm that’s going to transpire. So you can think of situations where somebody inside a home… you’re executing a warrant, or you’re just investigating, and you hear a cry from inside: “please don’t kill me.” The evidence… it’s not just any evidence—in my mind it has to be significant evidence. So in the commission of a crime where there’s imminent potential for harm to somebody, and/or significant evidence that’s potentially going to be lost or destroyed. That is the standard outlined by the Supreme Court that’s been codified with our no knock warrant statute. I think, personally, you have to utilize that… under the rarest of circumstances.
Kara Dansky, 53:15:
I think we should be really careful about high risk warrants. According to the literature that’s been conducted already—and our study confirms this—forcible entry is conducted often in what’s called a “high risk” warrant situation. But it’s very difficult sometimes to determine what is a high risk, and who is determining what is a high risk… I think we need to be really careful about allowing forcible entry just in any high risk warrant situation, because it sometimes can create more problems than it solves for us.
Parker Douglas, 55:55:
The instances where the [forcible entry warrants] were issued… I don’t remember seeing one that said “oh, we think there’s somebody in there who is going to be hurt.” It was almost always having to do with the destruction of evidence. So if you’re thinking about what kind of reform, and what kind of circumstances these come up in, it’s usually, as Ms. Dansky pointed out, drug raids. And it’s almost always to preserve evidence.
Parker Douglas, 1:00:05:
We should also hold our judiciary, I think, to the high standard that we trust them with. Police officers are working under a great deal of stress… and part of the reason they go to a magistrate is because they want a second look. And what we often cynically say is they get a “rubber stamp.” Well, if we’re going to cynically say it, I think it’s incumbent upon us as citizens to hold the people that we put in those positions of trust to the trust that we give them. If they’re supposed to look over an application for a warrant before they sign it, we better make sure that they’re doing their job. And if they’re not, you all should complain about it.
Chris Gebhardt, 1:10:58:
A high risk warrant should never, ever be used to secure evidence.
Sheriff Tracy, 1:16:35:
If we’re going to ramp up the level of force, is it justified based on facts. If it’s not, then no. Second thing is, as far as a no-knock, I concur with Chris about surrounding and announcing. You can knock that door in, you can put the people on the perimeter, and ask them to come out. I think that’s exactly what happened up in Ogden. Again, based on a fairly low-level warrant for a marijuana charge, that occurred that cost an officer his life because of that very issue. That individual claims, and there’s no reason to disbelieve him, that he didn’t know who these people were. He thought they were people coming in to rob him. So he challenged police, and he ended up in a shootout… I think that was not a SWAT team either, I think it was one of these drug units that was not a highly trained SWAT team. And there’s your worst case scenario right there. I don’t believe you should ever use a high risk warrant for evidence, unless it’s evidence preservation for evidence of a homicide or some violent crime against a person, or rape… then I would say that we would use the high risk warrant for that kind of evidence preservation. For an additional pound of marijuana, some property type of crime? No.
Chris Gebhardt, 1:19:40:
Officer safety has been a catch term that has been used to justify so many wrongdoings. You know, “my life was threatened.” It’s one of the first things you learn in the Academy. It’s unfortunate; we shouldn’t be thinking that way.
DA Sim Gill, 1:24:28:
The integrity of a system is not measured by the 99 or 98 or whatever you clear. The integrity of a system is measured by the one or two or three or whatever, that [aren’t] justified, that they can actually hold them accountable. That’s where the trust of the community comes from. When you fail to hold bad officers accountable, good officers suffer.
Sheriff Tracy, 1:26:51:
I was part of the process on review… we worked on that legislation this year to try and get an appropriate balance in what was in that requirement for the reporting of our tactical teams. I think more of it needs to go through the legislators… we need to start electing smarter legislators, that don’t put us in some of these binds based on some of the laws they pass. I mean, I’m sworn to uphold the law, but you look at some of these and you go, ‘I’m not sure about that…’” But I’m sworn to do this. It puts us in a bad situation.
Kara Dansky, 1:28:31:
I heard earlier the suggestion that we should think about civil liberties and public safety at opposite poles, and find some way to integrate them or something. And I really just want to push back against that, because I think it’s not the way to go about the question. I think all of us would agree that protecting civil liberties is good for public safety, and good policing protects civil liberties.
DA Sim Gill, 1:30:48:
Civil rights have to be a core value, but we have to recognize that in order to achieve that, we have to have internal systemic accountability.
Parker Douglas 1:34:40:
If we’re talking about changing law enforcement culture, we have to look inside as much as outside. We can’t look at police militarization and say “Oh, it’s the problem that they’re just driving these new things.”
AG Sean Reyes, 1:36:10:
The state of Utah needs to set an example for the federal government. It’s bad enough when the federal government forces the states to do things, and I fight these fights every single day, pushing back against the federal government which has forgotten the meaning of the Tenth Amendment… The federal government, we have to remember, when it comes to law enforcement policy, has come up with some of the worst ideas that we have.
AG Sean Reyes, 1:37:07:
In the law enforcement community, unfortunately, when we see other agencies do things, we have this sense that if they’re doing it, we’re justified in doing it also. The state of Utah has to be better than that, and above that, and go far beyond the floor that the federal government has set. And I think we’ve started along that path.
Chris Gebhardt, 1:38:49:
…something we have in the state of Utah called the “good ol’ boy system.” I can tell you, it is rampant here, more so than I have ever seen it. Until we get involved as citizens, that’s not going to change.