Editor’s note: Libertas Institute has been closely following and influencing policy issues related to the use of police authority including task force raids, police militarization, and forcible entry warrants. Conventional wisdom suggests that law enforcement officials are at odds with those who champion civil liberties, but as this interview demonstrates, that narrative is not entirely accurate.
The following is an edited transcription of an interview Libertas Institute conducted with Christopher Gebhardt about these issues. Gebhardt is a 15 year police veteran and three-time SWAT commander in Utah. The comments in this interview do not necessarily reflect the views of Libertas Institute.
Libertas Institute: Describe for us your law enforcement service and experience.
Christopher Gebhardt: I started my career in Washington, D.C. working for the Metropolitan Police Department in 1990 where I finished as a Lieutenant. After that, I worked for a while in the corporate world before coming to Utah where I got back into law enforcement and worked in Utah law enforcement for seven years. I served a total of about 15 years directly in law enforcement.
LI: What type of experience did you have in SWAT?
CG: I was part of several SWAT teams here in the Salt Lake Valley. I started out as a base operator, got promoted, and worked as a team leader for several different teams and worked with a lot of the SWAT teams in the valley.
LI: What was the difference, if any, between your experience in D.C. and Utah? Were there any differences in police mentality, approach, or tactics?
Here it seemed the local police officers and deputies didn’t really dive into case law that much, or as much as I think they should.
CG: I think there was a big regional difference in approach in the Northeast compared to my experience in Utah. For example, the academy back east was much harder to get through. You had to be able to recite verbatim the 4th Amendment because it was much more embedded in the culture of law enforcement there. Case law was always being brought up and trained and instilled, whereas here in Utah, I think that is lacking a bit. Here it seemed the local police officers and deputies didn’t really dive into case law that much, or as much as I think they should.
Case law should be our bread and butter in law enforcement since we need to know it for both professional and personal reasons. Professionally speaking, you obviously don’t want to violate someone’s rights and do something you’re not supposed to do, but also from a personal standpoint you are held civilly liable and accountable for those laws. The legal doctrine of “qualified immunity” dictates that an officer is immune from civil liability for their actions when they act reasonably—when their actions are reasonably expected. However, if the law of the land at the time is violated by the officer and a plaintiff can show that the officer should have known better and followed that law, the officer can still be civilly sued personally. That is why it is so important for officers to personally understand the law and not just defer to their specific department.
LI: Did you see examples in Utah where a lack of emphasis on the 4th Amendment existed in police actions? Do you feel there was a lack of concern or understanding for citizen’s rights or were those rights violated more frequently?
CG: What I saw in Utah wasn’t malfeasance or misconduct on the part of an officer, but rather a culture that marginalized the suspects. For example, a feeling that “we are dealing with dirtbags, and dirtbags will be dirtbags”—even though those dirtbags have rights. That culture extended beyond just offenders or so-called “dirtbags” and became a pervasive culture that lead to officers doing things that may be borderline or even actual violations of standards.
You cannot let the badge on your chest, and the authority that you wield, lead to an inflation of your ego that you take advantage of when dealing with your fellow citizens.
However, this is not just a Utah issue. You can find examples all across the nation of this mentality. This is something that law enforcement must generally guard against. There is something we call “badge heaviness” which is a feeling you can get when you wield authority that you have to keep in check. You cannot let the badge on your chest, and the authority that you wield, lead to an inflation of your ego that you take advantage of when dealing with your fellow citizens. If anything, it should be the other way around. Officers should be thinking how they can help a person—this is an entirely different viewpoint where even if someone is a dirtbag you still treat them with respect. This respect is regardless of how disrespectful or vulgar they are toward you. If you still treat them with respect it goes a long way and it opens doors.
I have seen officers succumb to this “badge heaviness”—they have attitudes and short fuses and generally they are good at knowing how far they are permitted to go. But, it is not how far they can go that is the problem, it becomes a question of how fast they get there that creates the problem.
LI: How can this “badge heaviness” be counteracted? Is it merely human nature when someone is given authority that there is more potential for abuse? Are there things that can be done to mitigate that?
CG: I think it comes down to the leadership in a department and the messages they send to officers by tolerating what is going on out in the field. Most departments in Utah are small; in fact, all the departments in Utah are “small” departments compared to large metro areas back east. For example, when I served in D.C. I was in a department of 4,500 sworn officers and 1,000 civilian support employees serving a population of several million. In that environment it is harder to know everybody and what other officers are doing in the field. But smaller local agencies may have a few dozen officers in small towns, up to 400 in Salt Lake.
In the close working environment of smaller departments, each officer knows who is doing what and can more easily see when someone is getting away with something all the time. If leadership is not enforcing standards it can quickly send a message to others that leadership allows that behavior and that it is alright to do. Compare that to a department and leadership team that will look at bad behavior and say: “wait a minute, we’ve caught wind of this and we are going to deal with it and train and educate our officers.” Then, if such behavior continues after training and education, discipline is warranted.
LI: When misconduct has been alleged and an investigation or inquiry is launched by a department, critics might suggest that such internal investigations are not thorough, unbiased, or fair. Would you agree? How can the public trust the outcome of these investigations? What oversight should exist to ferret out corruption and misconduct and ensure it is appropriately dealt with?
As far as the public is concerned, I do think that “what’s good for the goose is good for the gander” and we can improve the system.
CG: It varies by department as to what level an internal investigation will rise. In law enforcement, an “internal investigation” is a very specific term that relates to a formal investigation by the internal affairs department (IA). Each police department may have different criteria and rules for what incidents get escalated to an internal affairs investigation. Most departments I was with had supervisory level investigations for low level cases. This is where the supervising sergeant would conduct the investigation and interview people and then bring the findings to the chief. It was only for serious issues like criminal conduct or constitutional violations or cases of a serious nature that might put the department in jeopardy of being sued that received a formal IA investigation. This is because those formal internal investigations are a lot more resource intensive and can take a lot of time and money to conduct. Thus, supervisory investigations are more appropriate for casual misconduct in the course of everyday police work that doesn’t rise to the level of potential termination or other serious violations.
In reality, department investigations, while they claim to be “non-biased,” might be fundamentally biased against an officer because they do not conform to the same standards a criminal defendant might have in our justice system. Accused officers don’t get an attorney or get to conduct evidentiary discovery or be present for the interview of witnesses and are only allowed to comment on the findings. Sometimes it works to the officer’s benefit but it is not the same system as we have in criminal court. As far as the public is concerned, I do think that “what’s good for the goose is good for the gander” and we can improve the system.
LI: One contention raised by concerned citizens is based on a perception that these investigations usually exonerate the officer where abuse has been alleged. For example, the injudicious use of a taser or shooting a suspect when unjustified or unnecessary. The concern over such investigations is when the officer’s actions are deemed to have been justified when some might disagree. What are your thoughts about this issue?
CG: I think there is a public perception, awareness, and education problem. Department investigations are there for management purposes and not for civil liability cases or criminal cases. Obviously, if something comes up where charges need to be filed then a new investigation can be launched and charges can be filed. But generally citizens’ opportunity for redress is in the civil courts. If you are wronged by an officer your redress is to sue that officer and the department—it is not that internal department investigation. Does that set up a bigger task for a citizen? Sure, but courts have been clear for decades that the civil process is the opportunity for redress.
Now, should we have more transparency in investigations? Potentially, but it’s hard when you are dealing with what is fundamentally a personnel management investigation. This is just like a company where the human resources (HR) department is not going to allow your HR record to be released without your permission—same concept as public transparency for a law enforcement internal investigation. Sure, while this is law enforcement and government working for the people it seems to make sense that we would have transparency. But at the same time, the law enforcement department has a management role that has to be taken care of just as a private company would. So, these agencies are also employers who have to follow the same general HR principles that a private company does. However, being that it is government money and resources there also needs to be a certain level of transparency and I think we see that with POST (Peace Officer Standards and Training) in Utah who puts out a report on officers that are certified or decertified.
Another tool is civilian oversight boards which I absolutely love. This is a good way for citizens to have involvement in the process. However, the one problem you can get with those boards is similar to the political problems you get with other appointed government boards. For example, a city planning committee that is appointed by the city council serves at the pleasure of the council; if a city council doesn’t like the planning and zoning committee decisions then the council can get rid of them. I remember recently in one local city where the city council got rid of most of the planning members because they didn’t feel the planning committee was doing what the council wanted. This same problem could occur in a citizen oversight board. Most of the agencies I have experience with had civilian oversight in some form. In D.C. there was the Civilian Complaint Review Board (CCRB) appointed by the mayor and council. Certain violations and complaints would go before this independent citizen board for review.
Most public comments I hear seem to be based on a one-sided review of the facts. This is because we don’t get the entire picture of what happened in these cases from the media.
My earlier point about education is also key. The example of the perception of overuse or inappropriate use of a taser gun is a good one. In these cases citizens need to understand the context of the entire scene: What other force options were available to the officer? Was the subject still failing to comply? There is a lot of information and education someone needs in order to form a conclusion about the use of the taser in that situation. Most public comments I hear seem to be based on a one-sided review of the facts. This is because we don’t get the entire picture of what happened in these cases from the media. That is one thing I know from my experience to be 100% accurate—the media reports what works for them! While the media may try to report in an unbiased fashion, it is structurally impossible to do so. These cases are much more complex and it would fill the entire newspaper to report all the relevant details of one story. That is simply not possible. News reports are the “Reader’s Digest” version of a story.
LI: Speaking of the media, and driven by recent news reports, there is growing public concern about so-called “police militarization.” This is the idea that tools and tactics common to the battlefield are being used by police in our communities. Is this concern justified in your view at all?
CG: I love to discuss the “police militarization” argument because it comes back to education and understanding. Lets talk about equipment first and then tactics.
Take, for example, the military’s “1033 program” where the military supplies surplus gear to law enforcement for little to no cost. This can be in the form of rifles, armored personnel carriers (APC) or other equipment. Specifically, many are concerned and up in arms over the law enforcement use of these APCs: “Why do they need that? Are they going to go to war against the citizens?” People should not be afraid of the big ugly thing—that thing is not going to hurt you.
If officers are protected by an APC and are not at risk then they actually are not permitted under use of force to shoot the man.
Imagine a scenario where you have a SWAT team of four officers who are confronting an armed man in a car with a hostage. Those officers are likely wearing body armor and as SWAT officers are fully decked out with equipment and weapons. As they approach this car the man pulls out his gun. Under use of force rules the officers are justified in firing upon the man who now poses an immediate threat to them. The situation ends very badly with a dead suspect and potentially a dead hostage. What if we try it again with slightly different facts? Let’s say the officers approach with an APC, placing that APC against the car door, trapping the armed man in his vehicle. If the man turns that gun on the APC nothing is going to happen to the officers because they are protected by armor (often up to level IV rated against .50 caliber weapons). Additionally, the officers cannot even shoot back from the APCs either. The use of force rules dictate that an officer can only use enough force to protect themselves and others. If officers are protected by an APC and are not at risk then they actually are not permitted under use of force to shoot the man.
So, in reality, the use of the APC actually saves lives and results in less violent confrontations. Is it a 100% solution? Of course not, nothing is. But, there are plenty of scenarios where it has worked. Unfortunately, too often we see the original scenario where officers shoot and kill a suspect as soon as the suspect turns their gun on police because the officers are now in danger and authorized to use deadly force. If an APC was available that suspect might live because officers would not be in danger and would not need to use deadly force but could use a taser through a gun port, or pepper balls out of a gun port, or other less than lethal means with a totally different outcome where the suspect ends up in jail instead of in a grave.
LI: Some of these scenarios with violent (or potentially violent) encounters clearly justify an elevated level of “militarized” equipment and tactics. But there is concern about the use of such equipment and tactics with non-violent offenders, primarily the so-called “war on drugs.” Do you think these tools and tactics are warranted for suspects who have not used violence or harmed other people?
As far as militarization of law enforcement for non violent offenders—no, general police principles would dictate that you only use the level of force required by the threat.
CG: There are two issues at play here: one is the militarization itself, and another is a more philosophical question about our laws and why we have chosen to outlaw such non-violent offenses generally. I actually believe, philosophically, that it doesn’t make a lot of sense to spend resources outlawing the use of something like marijuana. From the perspective of a law enforcement officer the use of marijuana results in harmless offenders versus those that are drunk with alcohol and want to fight. I have yet to find a suspect who, on marijuana alone, wants to fight—they are usually just very mellow, whereas those using alcohol can be very violent. My personal belief is that marijuana should be legal. Generally, we have way too many other laws. I think we need a legislative session where they actually repeal instead of create laws and go through and review each law in order to justify why we still need such laws.
As far as militarization of law enforcement for non violent offenders—no, general police principles would dictate that you only use the level of force required by the threat.
LI: Some are concerned that police may look at a person’s record of gun ownership, or the suspected presence of a gun in a home, as justifying an elevated level of force when serving a warrant on such a home—even if for a non-violent offense like drug possession. Does the mere suspicion that a gun may be present in the home justify elevated force against the suspect of a non-violent offense?
CG: I think officers need to look at it like the courts do by evaluating the “totality of the circumstances.” For example, say you have a non-violent offender or a non-violent crime like white collar fraud where there is a legitimate and serious crime with an actual victim (like a person embezzling thousands of dollars from their company) and we have to go arrest them. Say we know the person has a concealed firearms permit. What about other factors, like their personality? Things you might pick up from interviews with their associates that would indicate that the suspect might use force against the police? There is the “possibility vs. probability matrix” where you weigh what is possible against what is probable. The officers than have to look at that and determine what level of probability for risk they are willing to put their life on the line for. I think the issue is that we have pushed that acceptable threshold down so far that even a 1% chance that a suspect might use a gun results in a decision to use SWAT-type force.
I think the issue is that we have pushed that acceptable threshold down so far that even a 1% chance that a suspect might use a gun results in a decision to use SWAT-type force.
Additionally, why take a person like that down in their home? In Utah it would be hard to find a home without a gun! Why not call a non-violent suspect in for an interview? If they refuse, you might watch the house and wait for them to leave when you can arrest them in a less dangerous place than their residence. A residence is a person’s castle—they know where the tricks are and where things are located in their own house. If you get someone off site it is a little more neutral. It is a bona fide police tactic to separate someone from their house, thus separating them from their weapons. For example, if you know you have a hunter who has several rifles, then take them down away from their house where they don’t have those rifles.
LI: Help readers understand the difference between SWAT teams and task forces.
CG: I think the perception is that they are synonymous, but generally they are not. A narcotics task force, for example, may or may not have SWAT team members as part of it, whereas, a SWAT team is a set group of individuals who have gone through basic training for SWAT techniques and tactics. The SWAT members have potentially undergone advanced training as well. It is also suggested by national standard associations that such SWAT members maintain a certain number of hours of training in those tactics every month—not just once a year. So a SWAT team should be training together every month on how they will deploy and what tactics they will use. The team also has individuals with specialized experience for the division of labor, such as a breacher who knows how to open a door using various methods.
I would prefer my house get raided by a full SWAT team because it is going to have less of a potential for violence than if it was just a general no-knock warrant.
A task force, on the other hand, is generally put together to fight a specific type of crime, like narcotics. While they may train together, they don’t typically have the same level of training and equipment to operate like a fully authorized SWAT team. Additionally, a SWAT deployment to serve a warrant is not a hasty thing. A lot of preliminary planning goes into a SWAT operation. This planning includes scouting where an officer logs the activities at the target location. The team may spend hours gathering intelligence and information about the location and subjects of the operation. The team will then plan and rehearse how they will approach the location and take down the subject. They will also plan for contingencies that the scenario may present in order to have back-up plans for problems they may encounter. Serving a typical warrant by task forces or general law enforcement does not usually entail the depth of planning that is used for a full SWAT raid.
As one with experience in this area, I would prefer my house get raided by a full SWAT team because it is going to have less of a potential for violence than if it was just a general no-knock warrant.
LI: Do you think there is a desire by officers on either SWAT teams or task forces to use force because of the adrenaline rush or thrill? Is there a sufficient cultural restraint by the law enforcement community to proactively choose to minimize the level of force to the least necessary level, or is there a culture that favors the elevated use of force because of the thrill associated with it?
CG: Using the appropriate level of force requires a fine balance. Officers enjoy their jobs, otherwise they wouldn’t come into work—particularly because of the risks associated with their job and the amount they get paid for it. You have to enjoy your work in order to feel fulfilled in your career, and officers are no different. There is a certain level of fulfillment and accomplishment you receive when you get to use your police training and expertise in a real operation. There are a lot of psychological factors in that for officers.
What I think is severely lacking is an appropriate emphasis on de-escalation tactics in law enforcement.
What I think is severely lacking is an appropriate emphasis on de-escalation tactics in law enforcement. We train a lot on what to do when a situation goes bad. We train a lot on when to shoot and where to shoot. We train a lot on less lethal technologies like tasers and batons. Officers are required to get taser training and certification, firearm certification, baton certification, but you are not required to be a de-escalation specialist. And that is general across the country in law enforcement.
I think if officers were trained in de-escalation—and there are training programs out there for de-escalation tactics—we would be better off. Officers are often faced with the challenge to get someone to stop what they are doing or change what they are doing—change their behavior. That can be a difficult task. It goes back to what I said earlier about “badge heaviness.” Sometimes it just takes an extra minute with somebody. If you are dealing with an individual and trying to get them to see your way, it may take 5 or 10 minutes longer. But as an officer, what do you lose in that? You gain the person’s compliance by talking with them and not using force—this is what de-escalation is about.
Typically what officers have learned in training is to follow a paradigm of “ask, tell, make.” Asking for compliance first, then ordering compliance, and finally forcing compliance. For example, say an officer stops someone and wants to see the person’s hands. An officer might first ask: “sir, take your hands out of your pockets as we are talking, for my safety.” Then if he resists, he is told “Sir, keep your hands out of your pockets—I’m not going to tell you again!” Perhaps two minutes goes by and out of habit the person might naturally put their hands back into their pockets—now the officer puts the person in handcuffs.
While their hands in their pockets could be dangerous, if they are wearing tight jeans and I can see that there is likely no weapon or threat, then what does it matter if they have their hands in their pockets? It is merely because they were not following my directions that they are now in handcuffs being charged with disorderly conduct and failing to comply with a law enforcement officer. But, there is really no reason that perhaps with 5 or 10 minutes more we could have had a positive outcome instead of someone going to jail.
LI: Under the common law “castle doctrine” a person’s home is their “castle.” Forcible entry warrants permit officers to invade that castle—sometimes for important reasons like saving a hostage, but also for reasons like seizing a small stash of marijuana for evidence. If you could draw the line anywhere for forcible entry warrants, when would they be allowed and when would they be disallowed?
I would prefer that less violent method because it prevents others in the home from being subjected to the violence of a SWAT entry.
CG: If there is a propensity toward violence by a suspect—like someone suspected of homicide, or aggravated assault, or robbery with a weapon, and we have a history of this person acting violent, then yes—I think entry into the home under surreptitious means like that of a SWAT raid or no-knock warrant in the middle of the night is going to be safer for everyone involved. But, there are also other techniques we can use like taking them down on the road. I would prefer that less violent method because it prevents others in the home from being subjected to the violence of a SWAT entry.
Such entries can be very scary for people. I have held numerous kids after charging through the door because they were so scared—you never want to see that. We’ve actually scheduled a SWAT warrant in the middle of the day because there were so many kids in the household and we knew they would all be in school. That is the right way to think about it rather than defaulting to doing it at night. As far as a bright line rule? It is really hard to say when they should or shouldn’t be used. I think you have to go back to the “totality of the circumstances” and ask what else is involved in the situation and what else we should look at in determining the type of entry.
Some officers may argue that we need to serve an arrest warrant at a specific time because that is when the suspect is going to have a shipment of drugs there I think that’s the wrong reason to serve a warrant. You should serve a warrant primarily to seize a person, not property. Your case should be good by that point because you have probable cause that a crime has been committed, particularly for the use of force like a SWAT team. So then you should be going after the person in the safest manner possible—not the drugs. If they want to flush drugs, okay. Let them flush drugs as long as other innocents are not being harmed. Do a surround and call-out instead—gather all your team members outside, get on the bull horn and announce “this is the police, we have a search warrant for your residence, come out and turn the lights on as you leave.”
LI: So you believe that a forcible entry search warrant should never be used for the specific purpose of seizing property to bolster a case or facilitate prosecution, because prosecutors should either have sufficient evidence in their possession or know it is there or otherwise have the case wrapped up before they enter the home?
CG: In the majority of cases—yes.
LI: As a person who has forcibly entered homes, were you ever concerned that you might be mistaken for a gang member or other criminal and be shot at by the resident whose home you were invading? Especially if the individual is innocent of the suspected crime and might feel justified in fighting back against the people invading his home?
If I hear someone breaking into my house in the middle of the night, the first thing I am doing is grabbing my handgun and making my way to where my rifle is stored and grabbing that!
CG: I got news for you—for me personally, if I hear someone breaking into my house in the middle of the night, the first thing I am doing is grabbing my handgun and making my way to where my rifle is stored and grabbing that! This is a natural defense action—the castle doctrine, if you will. At what point do the officers identify themselves? If they are not screaming “POLICE, POLICE, POLICE” as they are coming through that door, then there are going to be shots downrange from me. Now, even if they are screaming “POLICE, POLICE, POLICE” that still may not justify to me that they are who they say they are. They may be screaming police—but anyone can scream police. It isn’t until I physically see them, and can identify that they are indeed police, that I am no longer justified in defending my castle.
For an entering officer, you are asking a trained person to—in a split second—decide whether or not to take someone’s life… flip that around for the homeowner’s perspective who is faced with a split second decision. if that homeowner even raises their gun toward an officer, we all know what is going to happen and have seen that tragic scenario played out.
LI: If these forcible entry cases are occurring during the dark of night where an individual is being awoken from sleep, and maybe awakens after the police announcement and suddenly hears a bunch of screaming, is it at all to be expected that the resident is not going to be able to clearly identify large figures in the dark as police officers? At what point, out of concern for the officer’s lives if nothing else, do we try and limit these dangerous circumstances?
If I had it my way, if I could rewrite everything, I would prohibit forcible entry into homes, with certain exceptions.
CG: If I had it my way, if I could rewrite everything, I would prohibit forcible entry into homes, with certain exceptions. Obviously, hostage situations and active gunmen type of situations would warrant forcible entry. But to serve a search or arrest warrant it would absolutely be a surround and call out—the safest mechanism. Now, others might argue that that gives the suspect the opportunity to barricade themselves. I think that is a rare occurrence.
The SWAT mentality is “speed, surprise, and violence of action.” The idea is that if you get in fast and surprise them with overwhelming force it will startle them and disturb their “OODA loop” (observe, orient, decide, act). This is a process loop that the human brain goes through where someone analyzes their observations in order to decide on actions. From a SWAT standpoint, our tactics are to disturb this process in that individual. But, it is also very dangerous.
The concern about an individual fortifying themselves in their house is actually a rare case. The majority of cases end with the suspect coming out peacefully and being taken into custody in a peaceful manner. Sure, officers will eventually need to go into the house but they don’t need to go in a dynamic format. There are two types of searches: dynamic and static. Dynamic is the forcible entry case—a big show of force and really scary. In a static search, like when we don’t believe someone is in the house, or when someone is hiding, you go through very deliberately and slowly—it can take two hours just to clear a three bedroom house when you are observing every minute detail. That is the best way to do it.
LI: So in your view, forcible entry is not the most efficient option, and law enforcement agencies have traded efficiency for a perception about safety?
LI: Since our country’s founding, we have relied upon judges to review warrant requests and provide oversight to ensure that legalized force is not being unnecessarily or improperly used. Do you think that system is working? Are judges giving the attention and oversight to each warrant request that they ought to?
CG: I can’t speak generally for all cases. It comes down to a case by case evaluation. I can say from my experience that I have seen judges sufficiently criticize warrants and I have also seen judges approve warrants by merely reviewing it for technical completeness and then signing it—not going through in detail or interrogating me. The officers typically write the warrant and the state’s justification for the warrant but are not always interrogated by the judge’s inquiry. Such warrants are done in judge’s chambers for secrecy because you don’t want them in a public forum. Maybe there should be a general advocate for the subjects of warrants like a defense attorney that is not tied to that specific case who can scrutinize the warrant and advocate for the interests of a suspect. Obviously this is the sort of thing the judge is supposed to be doing but it doesn’t always work out that way. In the adversarial criminal justice system we have defense attorneys to advocate for the interests of the accused in other stages of the process, but not for a warrant.
Maybe there should be a general advocate for the subjects of warrants like a defense attorney that is not tied to that specific case who can scrutinize the warrant and advocate for the interests of a suspect.
For example, I once had an investigating officer who got a warrant bring it to our SWAT team to serve it. I looked at and said we couldn’t serve it—the warrant was invalid because it gave us permission to search the entire house. It was very clear that the upstairs portion of the dwelling was completely separate from the downstairs portion with different families living in each part. At that point we can’t search the entire house and the judge needs to know that so they can authorize the warrant or not authorize the warrant, and in this case the judge didn’t know that. I’m not sure if it was a mistake on the judge’s part or someone else but we brought that information back to the judge and clarified what our entry was to be and how far we could go.
LI: What concerns do you have, if any, regarding electronic warrants? Utah is moving to an entirely electronic system where there is potentially no direct interaction with the judge. If one goal of judicial oversight is to facilitate an inquiry of the investigators by the judge, what concerns might you have for these new e-warrant systems?
CG: I absolutely love the e-warrant system because it makes it fast for the officer. You can sometimes get a warrant approved within ten minutes. Another reason I like them, and feel the public should embrace them, is it creates a record of the inquiry and comments between the judge, prosecutor, and officer. Currently, with the paper system, those conversations and questions are not documented. That e-record can document where a breakdown might have occurred and can be reviewed after the fact, including helping a civil suit later if necessary. So, I would think that the public and citizen advocates should favor the e-warrant system.
You have to ask yourself: “Who is advocating for that person that is the subject of that warrant?”
Ideally a judge should review warrants, but in our criminal justice system we have defense attorneys to ensure the rights of the accused are preserved. Without such an advocate during issuance of a warrant you might as well argue: “why not eliminate defense attorneys altogether and just let the judge decide?” There is a reason we have an adversarial justice system and having an advocate there during the warrant approval to scrutinize the warrant would give the judge an opportunity to evaluate both arguments and make a ruling just like they do in court.
You have to ask yourself: “Who is advocating for that person that is the subject of that warrant?”
LI: If you could speak to the entire Utah legislature for two minutes, what message would you share?
CG: I would encourage legislators to seek understanding and education on issues from multiple sources and not just from the echo chamber that they hear from law enforcement and government lobbies. They are elected officials and they represent us—they don’t manage government, they represent us. We have other people that manage government. For example, whomever is in charge of UDOT—they are managing government and they are not an elected official. The legislators are there to represent us.
So, reach out to all groups involved, don’t just listen to the major group whether that is law enforcement, or fire service, or finance. You’re not going to listen to just the Government Accounting Office (GAO) and take their word on it, you want to hear what other groups that may be the watchdogs of such government agencies are saying too. The same is true for police power: don’t just listen to the law enforcement officials—ask others. There are those out there with opinions and experience that may differ; embrace all relevant information and then make an informed decision and create informed legislation, not just biased legislation.