The Role of No-Knock Warrants in Killing Breonna Taylor

blm-300x200   The grand jury’s decision yesterday in the murder of 26 year old Breonna Taylor exposes some of the many problems with our criminal justice system, particularly the use of no-knock warrants.   There is so much wrong with this outcome like the fact that Louisville Police executed a no-knock warrant on her home, that no drugs were found in her home, that she was not even the target of any police investigation, and that no one has yet, or will, stand trial for this outcome.   This piece however, just focuses on the type of search warrant used.

Yesterday’s announcement is unsurprising in that criminal charges seldom follow the most notorious incidents where the police kill Black Americans.  Even when the cases of police killings of Black Americans make the national news, they do not normally result in criminal indictments and almost never in criminal convictions.  Names such as Eric Garner, Botham Jean, Stephon Clark, Philando Castile, Walter Scott, Tamir Rice, Michael Brown, or Freddie Gray briefly gained national prominence in the news media but did not except in one case, result in a criminal conviction.

No-knock warrants played a central role in the death of Breonna Taylor.  When a no-knock warrant was used against former Trump associate, Paul Manafort, the well-known television legal pundit, Jeffrey Toobin reassured Americans that magistrates put a great deal of care into issuing no-knock warrants.  In reality though, the probable cause needed to be shown to get a search warrant is not a high standard to meet and warrants, statistically speaking are more often given than not.

Studies have shown that no-knock warrants are routinely issued in under three minutes, sometimes in less than 90 seconds, begging the question of who, whether a judge or not, can actually read that fast.[1]   No-knock warrants are legal in most every state and readily issued.[2]  With experience seeing warrants, the language used to express “exigent circumstances,” like the presence of guns, a camera, and drugs, acquire a familiarity that almost seems like the warrants are sharing some boilerplate.

The magistrate in the Breonna Taylor case, Mary Shaw,  authorized all five 5 warrants that were asked of her and it is unclear how much time she spent going through them-perhaps she spent a great deal of time.  But if she did, did she ask herself if there was an alternate reasonable explanation for the facts alleged?   The target of the  search warrant at issue was not Breonna Taylor and no evidence of drugs was recovered from the search.  Most of the evidence sought in the warrant had nothing to do with Breonna Taylor and concerned two individuals Adrian Walker and Jamarcus Clover, one who was in custody at the time of the raid.  Another interesting development about the warrant that suggests it was obtained by lying is that it references three packages addressed to Jamarcus Clover that were allegedly delivered to Breonna Taylor’s residence.  However, the Louisville Postal Inspector denies his office had any role in the investigation of these packages.

Another issue with no-knock warrants is that they appear to be disproportionately used against communities of color.[3]  Traditional search warrants require police to knock-and-announce their identity and presence to execute a search warrant.  No-knock warrants originated in the War on Drugs and their use may reflect the impact of the drug war on minority communities but their disproportionate use among poorer communities is plain.[4]  They are also based on the assumption, whether based on empirical evidence or not, that drug use is correlated with violence.  Still, it is difficult to recall the use of flash-bang grenades in wealthier communities.

No-knock warrants ignore the presumption of innocence, a hallmark of our justice system and the sanctity of a person’s home as this idea is reflected in the Fourth Amendment to the Constitution.  The Fourth Amendment to the United States Constitution guarantees the right of people to be “secure in their persons against unreasonable seizures.”  Unfortunately, the courts have made a thousand cuts into the Fourth Amendment and continue to do so.  The Courts have set the stage for the abuse of and un-accountability in the use of no-knock warrants.

Rather than respecting the presumption of innocence, no-knock warrants are based on the presumption of guilt and the abandonment of the Fourth Amendment.  The rationale for a no-knock warrant is that a person will refuse to comply with the search warrant, attempt to escape, to forcibly resist the officer’s entry, or destroy evidence.  They also assume that the person has incriminating evidence and will commit the further crime of destroying that evidence.

The exclusionary rule dictates that evidence seized illegally by a government agent is inadmissible at trial.   However, the Supreme Court has held that the exclusionary rule does not apply to violations of the knock and announce requirement.[5]  What this means is that even if a court finds that the police should have knocked and announced its presence, any evidence they seized during an otherwise legal search can still be used against a defendant.

No knock warrants were supposed to have been saved for all but the most dangerous of case, but they have been used in cases of home foreclosures, credit card fraud and where homeowners are listed as registered gun owners.[6]

There are other common issues with no knock warrants like the fact that they can and have gotten the address wrong, or they mistake the identity of the subject of the warrant.  This happens a lot.  They can startle a person into thinking that the violent intruder is breaking in and create an atmosphere where pets and people are killed, and children are traumatized or harmed.  Civilians acting in self-defense and fear of their lives, not apprehending that they are faced with law enforcement can and have been killed.  These warrants also invite and conflict with stand your ground statutes.

And assuming a no-knock warrant goes wrong, the chances of securing a civil remedy are slim.  Part of the reason that so many civil claims against the police for the use of excessive force fail is the doctrine of qualified immunity.  The Supreme Court has held that a Fourth Amendment excessive force claim must be analyzed under the standard of “whether the officers’ actions [were] ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”[7]    In other words, is it possible that the average person may have made the same mistake under the same set of circumstances.  If the answer is yes, then qualified immunity warrants exoneration-this is a bit of simplification but accurate.

In the case of District Court of Columbia v. Heller, the Supreme Court ruled that a person has a constitutional right to own a handgun for self-defense in their home.  In addition, many states, such as Kentucky have statutes that hold that a person does not have to retreat when they have reason to believe someone is unlawfully and forcibly entering their home, unless they knew or reasonably should have known that the person forcibly entering was a police officer.  This was not possible to know in the dark when armed intruders are running into your home.

In the case of Breonna Taylor, her boyfriend, Kenneth Walker, a lawfully registered gun owner, shot at what he thought were intruders (un-announced forcible entry pursuant to a no-knock warrant) and as result, the police opened fired inside the apartment.[8] One of the three officers on the scene shot 10 rounds blindly into the apartment while the other two also blindly shot into the apartment and adjacent apartments, including one with a 5 year old child.[9]

The prosecutor in this case now claims that the warrant used was not a no-knock warrant and that the Louisville Policemen identified themselves.  This seems like a dubious claim as according to Kenneth Walker’s lawyer, Kenneth Walker had called 911, which he would not have done if he had known it was the police and not an unlawful intruder.  A record of this tape and the evidence from neighbors who, claim not to have heard any announcement by the police, along with evidence given to the grand jury would go a long way towards giving the public some answers.

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R Tamara de Silva

Chicago, Illinois

September 24, 2020

 

[1] Richard Van Duizend, L. Paul Sutton, Charlotte A. Carter, National Center for State Courts, The Search Warrant Process: Preconceptions, Perceptions, Practices 26-27 (1984) (“The average length of the magisterial review in the proceedings we observed was two minutes and forty-eight seconds. The median time was two minutes and twelve seconds[,]” and ten percent were approved in less than a minute. In addition, of the proceedings observed, only eight percent of warrant applications were denied.

[2] Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America 51 (2006)

[3] Balko, Little Rock’s Drug War, supra note 23 (“Nearly all the people raided that I spoke to were lower-income, and all but one were black. Of the 105 warrants I reviewed, 84 were for black suspects, 16 were for white and five were for Latinos. Little Rock as a whole is 46 percent white and 42 percent black. Hispanics and Latinos of any race make up just under 7 percent of the population.”); ACLU, War Comes Home,(“According to the records that did contain race information, SWAT team deployment primarily impacted people of color.”)

[4] https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police

[5] Hudson v. Michigan, 547 U.S. 586, 594-99 (2006).

[6] https://www.vox.com/2014/10/29/7083371/swat-no-knock-raids-police-killed-civilians-dangerous-work-drugs  See also Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America 1 (Cato Inst. 2006). President Reagan’s administration persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the Pentagon to give military weapons, equipment, intelligence, and access to research and military bases to these agencies to help investigate drug crimes. See id. at 7-8. The Military Cooperation with Law Enforcement Act created an exception to the Posse Comitatus Act, which prohibits the use of the military for civilian policing.

[7] Graham v. Connor, 490 U.S. 386 (1865); 104 L. Ed. 2d 443 (1989)

[8] https://www.nytimes.com/2020/05/14/us/breonna-taylor-louisville-shooting.html

[9] https://abcnews.go.com/US/timeline-inside-investigation-breonna-taylors-killing-aftermath/story?id=71217247

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