In the wake of the Breonna Taylor indictment decisions, I gave a friend lamenting the decisions a challenge: “Reconcile legitimate self-defense with an authorized policing tactic, which legitimizes self-defense to the self-defense.” Given that we were both in the middle of a busy workday, he certainly didn’t have enough time to try if he wanted to so he acknowledged the conundrum and asked my opinion on no-knock search warrants.
My rhetorical question – laden with its legal technicalities – both provides the legal explanation for the indictment decisions and highlights the legal fictions that will enable no-knock search warrants to endure unless a legislature abolishes them or the U.S. Supreme Court eliminates the Wilson exception. A candid dialogue, however, will be impossible as we brace for another night of woke, self-righteous, and race-baiting mobs waging war on cops and those who dare to question the Black Lives Matter movement.
Let’s talk facts and fictions though. Breonna Taylor was shot by Louisville cop as he and other officers tried to serve what they understood to be a no-knock search warrant for drugs on her boyfriend’s apartment in the middle of the night – in other words, a warrant that gives the police the right to break down your door without asking you to open it first. While some media outlets including the New York Times have reported that the department changed its orders to the officers and told them to “knock and announce,” I have yet to see public evidence of that although Louisville police claim that they announced themselves while trying to enter.
Nonetheless, Ms. Taylor and her boyfriend were awakened by the loud thuds of Louisville cops trying to batter their door down. Ms. Taylor reportedly demanded who was at the door and received no response. Her boyfriend subsequently grabbed his licensed handgun and, when the officers finally busted the door down, fired one shot at them as a warning shot. The warning shot struck one of the officers in the leg, busting an artery. The officers responded by returning fire like men who feared for their lives, allegedly blindly shooting through walls to suppress the threat that they thought Ms. Taylor’s boyfriend posed. Five of their bullets struck and killed Ms. Taylor. No drugs were found in the apartment.
Today, a grand jury indicted only one of the three officers who had fired on Ms. Taylor and her boyfriend’s apartment. He was not indicted for any form of homicide or any offense related to Ms. Taylor’s death, but rather for wanton endangerment for some of his bullets making their bullets into an adjoining apartment.
Why? Mobs will ask that question with violence tonight, and a reasoned answer won’t satisfy their lust for destruction. As I hinted above, however, the answer comes from legitimate legal principles, and no-knock search warrants will endure because of legal fictions.
Long before our nation ratified the Fourth Amendment, English common law prohibited no-knock search warrants – a prohibition that dated back to 1604 and a case known as Semayne’s Case. In 1958, the U.S. Supreme Court adopted this rule as a general proposition in Miller v. United States, and Congress codified a variation at 18 U.S.C. § 3109.
For every rule, however, there is usually an exception, and the U.S. Supreme Court unanimously created one in 1995 in a case called Wilson v. Arkansas. The Wilson exception allows police to execute a no-knock search warrant to prevent the destruction of evidence. The Wilson exception was born out of the war on drugs, and its application in Ms. Taylor’s case is harmonious with the facts of Wilson itself. Not content with its work in Wilson, the U.S. Supreme Court gutted the exclusionary rule – the rule that suppresses seized evidence when officers act unconstitutionally – in 2005 in a case called Hudson v. Michigan in the context of no-knock search warrants, holding that judges could not suppress evidence because officers failed to knock.
The English rule as established in Semayne’s Case established that a man had the right to defend his house to the death even against the king. The famous English jurist, Lord Edward Coke, commented that the case established the Castle Doctrine: “the house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.”
Applying the pure English rule to Ms. Taylor’s boyfriend, he had every right to shoot at the officers trying to enter his home via a no-knock search warrant and even kill them because he had no reason to know that they were police officers. His actions represent a classic example of self-defense.
At the same time, the officers were acting pursuant to a lawfully issued search warrant and constitutionally recognized tactics. When Ms. Taylor’s boyfriend started shooting at them, they had every right to shoot back at him and anyone else in the apartment in self-defense as well because they were acting lawfully.
If the officers’ account is to be believed, could they have made more efforts to wake him and Ms. Taylor up before breaking down his door? Probably. Should they have shot wildly into the apartment, thus resulting in the death of Ms. Taylor? I wasn’t the guy being shot at so I am not going to Monday-morning-shooter them.
That being said, what really caused Breonna Taylor’s death? Here’s an unpopular dose of reality for you. The U.S. Supreme Court’s decision in Wilson v. Arkansas and Hudson v. Michigan as well as its precedents on sovereign immunity caused Breonna Taylor’s death.
By allowing no-knock search warrants and preventing judges from suppressing evidence from unconstitutional no-knock search warrants, the U.S. Supreme Court effectively incentivized state and local law enforcement to gamble on no-knock searches with the understanding that their long term law enforcement goals – namely, prosecution – wouldn’t be hindered. Consequently, state and local reliance on the policy, especially in the war on drugs, is only logical.
Furthermore, the U.S. Supreme Court has adopted the old English principle that the sovereign can do no wrong. Modern lawyers call it sovereign immunity. Sovereign immunity allow a government to disclaim responsibility when a police officer or other government employee acts unconstitutionally. When you go to sue for money for a government violating your constitutional rights, you have to sue the individual officer or employee unless you can make out some sort of pattern claim or a failure to properly train claim – claims that are notoriously hard to sustain.
The result of this scheme is that there is no incentive for a government to fix screw-ups. Breonna Taylor is dead? Who cares? We’ll blame the cops. We only had to pay because of the public pressure. The overwhelming majority of cases don’t have woke, self-righteous, and race-baiting mobs at their backs to force such settlements, and the people whose rights have been violated almost always fail to hold the government accountable.
Without the ability to hold the government accountable, there is no ability to incentivize corrective training or other changes within policing tactics that infuriate so many people. The U.S. Supreme Court has created precisely that situation by interpreting the Eleventh Amendment to bar most, if not all, claims against state governments for federal constitutional violations.
The rage over Breonna Taylor and any other black person will die out once the mobs run out of steam. The actions that cause the rage will continue to endure. Saying what I have said here will draw the ire of almost everyone participating in the debate, but this racist is ready to have a candid conversation about the reforms that are really needed in American constitutional law rather than the empty gestures that the mobs and their exploiters have offered.
Talk to me when you’re ready.