2. LEGISLATURES THAT WON’T LEGISLATE

0.    Scarlata Dep. at 1, 8, 13, 92, 141, Calvo v. Maryland, CAL09-18584, 2011 WL 2437307 (Md. Cir. Ct. Jan. 1, 2011); Doug Donovan, “Prince George’s Raid Prompts Call for Probe,” Balt. Sun, Aug. 8, 2008, articles.baltimoresun.com/2008-08-08/news/0808070248_1_berwyn-heights-mayor-cheye-calvo-prince-george.

0.    Scarlata Dep. at 14, 16–17, 88, 92, 130; Martini Dep. at 153, Calvo v. Maryland; Yarbrough Dep. at 176, Calvo v. Maryland; April Witt, “Deadly Force,” Wash. Post, Feb. 1, 2009, www.washingtonpost.com/wp-dyn/content/article/2009/01/23/AR2009012302935.html.

0.    Sagin Dep. at 79, Calvo v. Maryland; Yarbrough Dep. at 78; Scarlata Dep. at 103; Martini Dep. at 61.

0.    Martini Dep. at 78–79, 82, 87; Sagin Dep. at 82, 86–87; Scarlata Dep. at 189.

0.    Martini Dep. at 85–89, 160.

0.    Yarbourgh Dep. at 79, 83, 92, 107, 114, 173; Sagin Dep. at 119, 128–131, 143.

0.    Yarbrough Dep. at 33, 91, 179, 222; Sagin Dep. at 119, 133, 142, 147–148; Sagin Dep. at 153; Witt, “Deadly Force,” supra note 2.

0.    Yarbrough Dep. at 117, 127, 138; Sagin Dep. at 102, 133; Daniel Valentine, “Sheriff Says Deputies Were Justified in Shooting Mayor’s Dogs,” The Gazette, June 19, 2009, http://ww2.gazette.net/stories/06192009/prinnew131944_32546.shtml; Witt, “Deadly Force,” supra note 2; Donovan, “Prince George’s Raid Prompts Call for Probe,” supra note 1.

0.    Sagin Dep. at 134, 135, 179. A veterinarian’s report concluded that Chase had been shot twice, once in the chest and once in the rear legs, and that the shot to the rear legs had been fired from behind. He bled to death after the shot to the chest. Witt, “Deadly Force,” supra note 2.

0.  New Hampshire Liberty Alliance, “Cheye Calvo Speaks on the Mundane Nature of State Violence,” YouTube, July 16, 2012, at11:23–16:30, www.youtube.com/watch?v=yUTSehSF6pA (hereinafter “Calvo Liberty Alliance Speech”).

0.  Witt, “Deadly Force,” supra note 2; Sagin Dep. at 192–93.

0.  Donovan, “Prince George’s Raid Prompts Call for Probe,” supra note 1 (remaining bound for two hours); “Calvo Liberty Alliance Speech,” supra note 10, at 11:23–16:30 (tracking the dogs’ blood through the house); Witt, “Deadly Force,” supra note 2 (within sight of the dead dogs); Scarlata Dep. at 157, 170–75 (“emotionally erratic”); Martini Dep. at 169–171 (“too calm”).

0.  Witt, “Deadly Force,” supra note 2.

0.  Martini also discussed the topic with other officers at the debriefing after the raid. See Scarlata Dep. at 100–105, 161; Martini Dep. at 63–64, 65, 133.

0.  Witt, “Deadly Force,” supra note 2; Scarlata Dep. at 188.

0.  Scarlata Dep. at 68, 72–73, 75, 77, 87.

0.  Witt, “Deadly Force,” supra note 2. Undercover agents ultimately delivered the package to the Calvo-Tomsic residence. Scarlata Dep. at 68–69.

0.  Id.; Scarlata Dep. at 227–28.

0.  “Calvo Liberty Alliance Speech,” supra note 10, at 18:00–23:00; Witt, “Deadly Force,” supra note 2.

0.  “Calvo Liberty Alliance Speech,” supra note 10, at 15:00–16:30, 19:00–20:10, 27:00–39:00.

0.  Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (2006), 4, 6–8, http://object.cato.org/sites/cato.org/files/pubs/pdf/balko_whitepaper_2006.pdf (origins of SWAT and rise in late 1980s); Karan R. Singh, “Treading the Thin Blue Line: Military Special-Operations Trained Police Swat Teams and the Constitution,” Wm. & Mary Bill Rts. J. 9 (2001): 676 (origins of SWAT); “Oversight of Federal Programs for Equipping State and Local Law Enforcement Agencies,” Hearing Before the S. Comm. on Homeland Security and Governmental Affairs, 113th Cong. 36 (2014) (statement of Peter B. Kraska, Ph.D., Professor, School of Justice Studies, University of Eastern Kentucky); ACLU, Excessive Militarization of American Policing (2015), 1, www.aclu.org/files/field_document/ACLU%20-%20%20Militarization%20of%20Policing.pdf; ACLU, War Comes Home: The Excessive Militarization of American Policing (2014), 19, www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf; Scarlata Dep. at 122.

0.  Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), 73–75 (describing the use of SWAT teams primarily to serve narcotics warrants); Balko, Overkill, supra note 21, at 1, 6, 25; ACLU, Excessive Militarization, supra note 21, at 1; Radley Balko, “Shedding Light on the Use of SWAT Teams,” Wash. Post, Feb. 17, 2014, www.washingtonpost.com/news/the-watch/wp/2014/02/17/shedding-light-on-the-use-of-swat-teams/; Matthew Harwood, “One Nation Under SWAT: How America’s Police Became an Occupying Force,” Salon, Aug. 14, 2014, www.salon.com/2014/08/14/one_nation_under_swat_how_americas_police_became_an_occupying_force_partner/; Maryland Statistical Analysis Center, Governor’s Office of Crime Control & Prevention, Maryland Fiscal Year 2014 SWAT Team Deployment Data Analysis (2014), 6; Scarlata Dep. at 44–47; Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (2014), 319; Witt, “Deadly Force,” supra note 2.

0.  Yarbrough Dep. at 12–13, 16, 35, 44, 46, 248–49; Sagin Dep. at 53–54; Martini Dep. at 77.

0.  Martini Dep. at 52, 86–88; Sagin Dep. at 66, 81, 119, 149–51; Yarbrough Dep. at 122, 123, 127, 144.

0.  Balko, Overkill, supra note 21, at 22 (Reverend Williams); “Botched Paramilitary Police Raids: An Epidemic of ‘Isolated Incidents,’” Cato Institute, www.cato.org/raidmap (Agee, Cohn); ACLU, War Comes Home, supra note 21, at 9, 17 (grandfather, veteran).

0.  Scarlata Dep. at 60–61, 64; Sagin Dep. at 166, 237.

0.  Balko, Overkill, supra note 21, at 4; Cato Institute, “Cheye Calvo Explores the Money Behind SWAT Raids,” YouTube, Aug. 4, 2009, at 5:35–5:40, www.youtube.com/watch?v=1OPv_1YpqWQ.

0.  Calvo Liberty Alliance Speech, supra note 10.

0.  Id.

0.  Mass. Const. pt. 1, art. XXX; S. B. Benjamin, “The Significance of the Massachusetts Constitution of 1780,” Temp. L. Rev. 70 (1997): 885; Thomas Paine, Common Sense (1776), in Rights of Man, Common Sense, and Other Political Writings, ed. Mark Philp, Oxford World’s Classics ed. (1998), 34.

0.  See, e.g., Declaration of Independence para. 2 (U.S. 1776) (“Governments are instituted among Men, deriving their just powers from the consent of the governed.”); John Milton, “The Tenure of Kings and Magistrates,” 1643, in The Works of John Milton, Historical, Political and Miscellaneous, ed. A. Millar (1753), Univ. of Mich. digitized ed. (2011), 345 (“[T]he power of kings and magistrates … is only … committed to them in trust from the people to the common good of them all.”).

0.  This is simply operationalizing the two core requirements of American democracy: democratic accountability and the rule of law. The basic idea of accountability is that government officials are accountable to us (the people) and we, in turn, are responsible for controlling them. See, e.g., Jeremy Waldron, “Accountability and Insolence” (using a principal-agent model to describe a system of democratic accountability), in Political Political Theory: Essays on Institutions (2016), 167. See generally Democracy, Accountability, and Representation, eds. Adam Przeworski et al. (1999) (describing various models of democratic accountability). The most famous elaboration of the rule of law (though there are many) probably comes from Lon Fuller, who “argued that the Rule of Law requires publicly promulgated rules, laid down in advance, and adherence to at least some natural-law values.” Richard H. Fallon, Jr., “‘The Rule of Law’ as a Concept in Constitutional Discourse,” Colum. L. Rev. 97 (1997): 2 (citing Lon L. Fuller, The Morality of Law, rev. ed. (1964), 42–44).

0.  28 U.S.C. §§ 531, 533(1) (2012); New York City, N.Y., Charter § 435.

0.  See Sagin Dep. at 63, 71, 81, 92, 116–18 (explaining the improvisation with pepper spray for the dogs, but offering no explanation for why he didn’t carry a baton on SWAT raids); Yarbrough Dep. at 61–65 (saying that Tasers, batons, and pepper spray were part of the “regular equipment” during the routine line of duty, but offering no explanation for why he didn’t carry such equipment on SWAT raids).

0.  See, e.g., Sagin Dep. at 63, 11, 117–18, 120–26 (revealing that there was no formal training or instruction that led Sagin to adopt a practice of disregarding the knocking requirement of a knock-and-announce warrant when being spotted by a resident); Scarlatta Dep. at 20–21; Yarbrough Dep. at 61–65, 116–17, 236–37, 242.

0.  See Daniel A. Farber and Philip P. Frickey, Law and Public Choice: A Critical Introduction (1991), 14–24; William J. Stuntz, “The Pathological Politics of Criminal Law,” Mich. L. Rev. 100 (2001): 505, 530–36, 545 (“Advancing police and prosecutors’ goals usually means advancing legislators’ goals as well.”).

0.  See William N. Eskridge, Jr., et al., Cases and Materials on Legislation, Statutes and the Creation of Public Policy, 4th ed. (2007), 49–50.

0.  Donald A. Dripps, “Criminal Procedure, Footnote Four, and the Theory of Public Choice; or, Why Don’t Legislatures Give a Damn About the Rights of the Accused?,” Syracuse L. Rev. 44 (1993): 1081, 1091–92 (1993) (stating that the strength of the law enforcement lobby, which Dripps says includes local police unions, “can be seen in its relatively even matches with the NRA—the lobby that many in Washington regard as the most efficient pressure group this side of the AARP”); Radley Balko, “Militarized Police Overreach: ‘Oh, God, I Thought They Were Going to Shoot Me Next,’” Salon, July 10, 2013, www.salon.com/2013/07/10/militarized_police_overreach_oh_god_i_thought_they_were_going_to_shoot_me_next/ (noting that a proposed Maryland law was vehemently opposed by law enforcement groups but was ultimately passed over the objection of “every police organization in the state”); Stuntz, “The Pathological Politics of Criminal Law,” supra note 36, at 539.

0.  See, e.g., Dripps, “Criminal Procedure,” supra note 38, at 1089–91 (“[E]ven when legislatures authorize broad law enforcement powers, police and prosecutors face a substantial incentive to limit the application of those powers to the least politically influential segments of society.”). For a more detailed discussion of discrimination and policing, see infra Chapter 8.