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A perpetual tragedy is continually being played out in these United States, a long-reported, deadly tragedy in the form of no-knock police raids. For anyone who might not be aware, no-knock raids are a practice of forcible entry by police, without prior notification, into a place of residence. As everyone should expect, having a bunch of armed government agents regularly bursting into residences unannounced leads to a lot of deaths. The most recent reiteration of this perpetual tragedy resulted in the death of Breonna Taylor who was shot eight times by government officers conducting a no-knock raid.
The death of Taylor has all the outrageous elements of other past tragedies: 1) Neighbors reported the officers never identified themselves before bursting in and opening fire (a claim further supported by the fact the couple inside called the police out of a belief they were victims of a home invasion; 2) the police accounts are riddled with inconsistencies, and; 3) the warrant (which was obtained by Reason), for which the no-knock raid was authorized, on its face, appears to have violated the Fourth Amendment.
What is it about the no-knock warrant that made it such a blatant violation? In justifying their request for a no-knock raid specifically, the officers only cited “the nature of how these drug traffickers operate.” The problem is, the Supreme Court has specifically rejected this type of categorical justification for a no-knock warrant. Put simply, in order for a violent, highly dangerous no-knock warrant to be done in accordance with Fourth Amendment guarantees, it must identify specific circumstances illustrating why such actions must be taken against each suspect. Yet, again, the warrant used to authorize the no-knock raid against Taylor contained no specific “exigent circumstances.” It made only broad claims about an entire category of crimes.
What makes all of this even more horrifying is that the evidence that was used by the police to establish probable cause against Taylor for any form of search was shaky, at best. In fact, I would argue that no reliable evidence even remotely indicates Taylor was involved with drugs and that all available evidence prior to the raid indicated she was a model citizen. Moreover, the fact that no evidence was ultimately found indicating Taylor was involved in drug dealing only further corroborates the opinion that a grotesque error was made by the police.
Lest anyone think this type of flagrant violation, where a violent, no-knock raid is not only requested by police but signed off on by a judge despite little to no evidence of guilt is just an isolated incident. Journalist Radley Balko revealed in his investigation of the Little Rock Police Department that the same justifications used for obtaining a no-knock warrant in the Taylor case are commonly made in no-knock raids. Per Balko:
Every no-knock affidavit I reviewed included boilerplate language about exigent circumstances. Word for word, the detectives included the same verbiage about how drug dealers typically have access to guns and are inherently dangerous, and how the surprise tactics of a no-knock, dynamic entry will make it safer for the officers serving the warrant and everyone inside. And again, in 95 of the 103 no-knock warrants granted, the boilerplate language was all that the police relied upon to request — and receive — a no-knock warrant.
Yet, even though no-knock warrants commonly include violations of the Fourth Amendment, that fact does not matter much in the end and thus does not deter the police from executing them or judges from signing off. Again, as Balko has explained:
[T]he reason narcotics officers can get away with it goes back to another Supreme Court case — 2006’s Hudson v. Michigan. In that case, the court ruled 5 to 4 that … violations of the knock-and-announce rule would not result in the suppression of any evidence seized in the ensuing raid. In the majority opinion, Justice Antonin Scalia argued that there were other remedies for violations of the rule, such as civil liability (lawsuits) or internal professional discipline. As David Moran — the attorney who argued for the losing side in Hudson — told me, Scalia’s remedies have proven insufficient to deter these violations. And, in fact, those of us who were concerned about these sorts of raids predicted at the time that the court’s ruling in Hudson would result in, well, exactly what we’re now seeing[.]
So just what exactly do we have to show for this violent abuse of and disregard for Fourth Amendment rules? Only an expensive and ineffective prison-industrial complex and a steady supply of drugs that remains undisturbed by such violent draconian practices that are regularly spilling onto the innocent. And while some might point to recent Supreme Court cases such as Carpenter, Jardines, and Jones as evidence that a robust Fourth Amendment is making some sort of a comeback. I have to regrettably point out that such cases involve limits on warrantless searches that, while welcome, do nothing to address the absurdly abused standard by which warrants are regularly signed off on.
The good news, where it exists, is that social outrage is leading to (albeit extraordinarily rare) attempts at accountability, but also (gratefully) broader reforms when it comes to no-knock raids. Moreover, as the Ahmaud Arbery case has demonstrated, social outrage can be an effective tool to at least begin the process of correcting egregious, deadly harms. Social outrage is likely why Breonna Taylor’s boyfriend, Kenneth Walker, who was initially charged with attempted murder for firing at the officers who killed Taylor, had a grand jury refuse to indict him after the case gained notoriety. So, while we cannot expect the current legal system or judicial actors to save us, we can keep a powerful light shined on such tragedies and demanding both accountability and reform.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.