I’m hearing/seeing a lot of variations on this theme:

Unbelievable. Anthony Warner’s girlfriend reported he was making bombs in an RV eighteen months ago and the Nashville Police Department did nothing. If he’d been black or brown, they’d have found a reason to arrest him.

It sounds bad, doesn’t it. Really bad. I mean, Nashville police officers could have prevented the Christmas morning bombing if only they’d done what the police are supposed to do. Right?

Well, no. Here’s the problem with that. Folks are evaluating this case through a lens of known guilt. We KNOW Anthony Warner made a bomb in his RV, drove it into the city, blew it (and himself) up. We’re criticizing the police for not knowing in August of 2019 what we know right now. It’s like complaining that somebody bought the wrong Lotto ticket after seeing what the winning Lotto number is. Okay, that’s an unfortunate analogy; I’m not suggesting detonating a vehicle-borne improvised explosive device is anything like winning the Lotto. What I’m saying is the odds of knowing the winning Lotto number before the drawing is 1 in 292,201,338, but the odds of knowing the winning number after the drawing 1 in 1. We’re basing our understanding of an extremely improbable event after learning the probability was 100%.

Let’s look at what actually happened and evaluate the behavior of the police based on what they knew at the time. On August 21, 2019 MNPD received a report that Pamela Perry was suicidal and sitting on her porch with two handguns. Police arrived and found her with two unloaded pistols. She told the officers the firearms belonged to her boyfriend, Tony Warner. She didn’t want the guns in her house. She also told them Warner was making bombs in an RV parked behind his house, which was located about a mile and a half away. The officers called for an ambulance which took Ms. Perry to a mental health facility for an evaluation.

Based on what they knew at the time, the incident could have ended there. The officers could easily have dismissed Perry’s bomb-making claim as the delusions of a suicidal person. I mean, the police have a long history of ignoring the complaints of folks with mental health issues. Or they could have dismissed her allegation as baseless accusations made by an angry, unstable woman in an unhappy relationship. Again, the police have a long history of not listening to women and dismissing their concerns. I’m not saying that would have been appropriate; I’m just saying knowing only what they knew then nobody would have been surprised if, after the ambulance drove off with Perry, the officers had just continued with their routine patrol.

But they didn’t; they actually followed up on the claim. They spoke to the attorney (who was also the person who reported Perry was suicidal). He told them Warner had spoken about bomb-making and military stuff. So they went to Warner’s home and saw that there was, in fact, an RV parked in back yard behind a fence. There was no answer at the door, and they lacked any exigent circumstance to climb the fence and invade the privacy of a citizen. They didn’t even have enough information to ask a judge to issue a search warrant. All they had was the accusation of a suicidal person who was undergoing a psych evaluation at that very moment. So they informed their supervisors of the incident and sent a report to MNPD’s Hazardous Devices Unit.

The next day the Hazardous Devices Unit checked Warner’s police record — nothing but an old marijuana case (for which he’d been placed on probation). That could have been the end of the matter too. Knowing only what they knew then, nobody would have been surprised if the report was filed away and treated as a low priority. But they didn’t. They got in touch with the FBI, who had no record of Warner.

At that point, knowing only what they knew then, they let it go. All they had was 1) a claim by a possibly mentally ill person that her boyfriend, who had no serious criminal record, who had no known ties to violent groups, who was gainfully employed and owned a home in a decent suburb was making a bomb in an RV, and 2) he actually owned an RV. That’s it. That’s all they knew. There wasn’t any reasonable legal grounds to expend policing resources on any further investigation. So they let it go.

Had he been innocent, that would have been the end of it. And remember, in the US we’re all operating under the presumption of innocence. We don’t have to prove we’re innocent. Totalitarian regimes operate on an assumption of guilt.

But as we know now, Warner wasn’t innocent. He was doing exactly what his former girlfriend said he was doing.

The folks who say, “If he’d been black or brown, they’d have found a reason to investigate and/or arrest him” are correct. If he hadn’t been a suburban white guy with a job, the police might have leaned on him, pressured him, intimidated him. They might have cobbled together some excuse to barge into his home and search his property. But we’ve spent much of this year demonstrating against the casual, routine violation of the civil liberties of people of color. Are folks really suggesting the police should treat everybody as badly as they treat POC?

No, not really. What they’re saying is police should have violated Anthony Warner’s civil rights. Not everybody, just him. Why? Because we know he’s guilty. It’s easy to deny the rights of guilty people.

But here’s a horrible-wonderful thing about civil liberties: they apply to everybody, the guilty as well as the innocent. They have to apply to the guilty in order to protect the innocent, because we don’t always know who is guilty or innocent.

If we want to stop future Anthony Warners, the answer isn’t to give the police more power or to encourage them to ignore civil liberties. If we want to stop bomb-makers, we should make it more difficult to buy and sell (and re-sell) the common ingredients necessary for making bombs. It’s fairly easy to buy the ingredients to make a triacetone triperoxide explosive (I haven’t bothered to check, but I won’t be surprised to learn Warner had purchased significant amounts of hydrogen peroxide and acetone — the primary ingredients of TATP). If we can limit the monthly amount of Sudafed (“Provides Powerful Sinus or Cold Relief!”) an individual can purchase, we can do the same with bomb-making ingredients.

DISCLAIMER: I spent seven years as a criminal defense investigator. I’m not accustomed to defending the police. But I try to be consistent. The Nashville police followed the law. They didn’t let us down. We were let down by legislators and regulators who are in the pockets of pharma-chemical lobbies.