Police dont need to knock, justices say...

[jrkarp]

New York Times
June 16, 2006
Editorial
The Don't-Bother-to-Knock Rule

You know that's an editorial, which is opinion, not fact, right?

[jrkarp]

I know this is my fourth post in a row in this thread, and I apologize, but how many here have actually read the opinion itself, and not just incomplete and biased reports about it?

[yeahright]

Not even close to that simple.

In most states, you cannot shoot someone simply because they are in your home or on your property. They have to pose a threat to your life or the life of someone else in your presence. Deadly force cannot be used to protect property alone. There must be a threat to human life. I think Texas and maybe another state or two allow more of a shoot first response. Obviously if the home intruder is armed, feel free to open fire.

It is true, though, that a person in their own dwelling or place of business usually has no duty to retreat.

Of course it's not that simple but I simplified it for folks who aren't lawyers.

What you didn't mention is that homeowners are entitled to assume that anyone breaking into their dwelling means them bodily harm and is not just there to steal the DVD player. The homeowner doesn't have to wait around to see whether the intruder into the home is there to hurt them. Under this assumption, the homeowner is entitled to use deadly force to repel the attack. Only if it's obvious that the intruder doesn't mean harm, does the scale of proportional response shift downward to prohibit deadly force.

The after action analysis will determine whether the homeowner acted reasonably (Ex. was the assailant shot in the chest or in the back?, Did it happen quickly or did the homeowner have time to sort out his/her options?, Did the intruder appear to be armed or act in any threatening way?).

1000 years of common law gives the homeowner a lot of leeway to use force against an instruder in the home. As long as the homeowner acted reasonably under the circumstances, they're not going to be charged.

[yeahright]

You know that's an editorial, which is opinion, not fact, right?

Umm, yes. Hence it being titled "editorial" and going on to give an opinion on the ruling.

[yeahright]

I know this is my fourth post in a row in this thread, and I apologize, but how many here have actually read the opinion itself, and not just incomplete and biased reports about it?

Opinion, concurrence and dissent.

[jrkarp]

Of course it's not that simple but I simplified it for folks who aren't lawyers.

What you didn't mention is that homeowners are entitled to assume that anyone breaking into their dwelling means them bodily harm and is not just there to steal the DVD player. The homeowner doesn't have to wait around to see whether the intruder into the home is there to hurt them. Under this assumption, the homeowner is entitled to use deadly force to repel the attack. Only if it's obvious that the intruder doesn't mean harm, does the scale of proportional response shift downward to prohibit deadly force.

The after action analysis will determine whether the homeowner acted reasonably (Ex. was the assailant shot in the chest or in the back?, Did it happen quickly or did the homeowner have time to sort out his/her options?, Did the intruder appear to be armed or act in any threatening way?).

1000 years of common law gives the homeowner a lot of leeway to use force against an instruder in the home. As long as the homeowner acted reasonably under the circumstances, they're not going to be charged.

The presumption that you speak of is not available in all states, and I am not sure if I have ever heard of it being available in any state that did not have the "make my day" law.

It is of course true that there are many factors, and in all honesty, prosecutions for killing in a home defense situation are few and far between. Believe me, if someone breaks into my home, they are going to be introduced to the shotgun under my bed in a hurry.

I will say that the fact that most states now have statutes dealing with this sort of issue makes the common law somewhat less relevant than it used to be.

[jrkarp]

Opinion, concurrence and dissent.

I applaud you, since most people do not read them before commenting.

[jrkarp]

The thing is, the title of this article is misleading, as are the headlines from articles about the ruling. The court doesn't say police don't have to knock, it says that in this case, it did not justify excluding the evidence.

I think it's the right ruling here - had the police knocked, and given the requried time before entry, the evidence still would have been discovered. In other words, the illegal action by the police did not produce evidence that would otherwise have not existed.

In the case of an illegal wiretap, for example, of course the evidence should be excluded, since it would not exist but for the illegal actions of the police.

[jrkarp]

For the benefit of those who will not bother to read the opinion:

Two points should be underscored with respect to today’s decision. First, the knock-and-announce requirement protects rights and expectations linked to ancient principles in our constitutional order. See Wilson v. Arkansas, 514 U. S. 927, 934 (1995). The Court’s decision should not be interpreted as suggesting that violations of the requirement are trivial or beyond the law’s concern. Second, the continued operation of the exclusionary rule,as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.

[yeahright]

I applaud you, since most people do not read them before commenting.

Most people aren't lawyers so I don't expect them to wade through this stuff. I'm not a medical doctor, so I just read abstracts of studies (am I missing important nuances, of course, but it can't really be helped unless I want to go to medical school).

I was most disappointed in the concurrance. Scalia is clearly trying to make new law. Breyer is trying to preserve existing law. Kennedy's concurrence is a weasel. He allows Scalia's vision to move forward but admonishes people not to see this ruling as a diminishment of the knock and announce rule. I call bull**** on that.

One can think this is a good thing. One can think this is a bad thing. But, one cannot treat this as an inconsequential ruling. The holding here says that even if the police admit violating the rule, the defendant's remedy is to file a civil rights claim. This in effect puts the knock and announce rule at the unfettered discretion of the police (nevermind that they ALREADY enjoyed exceptions to it if they thought they were in danger or that the evidence might be destroyed). This is a get out of jail free card for sloppy cops....and it's going to put a lot of people in danger IMO.

[jrkarp]

I see your point, but at the same time, I doubt that we are going to see a wholesale stoppage of knocking and announcing. Regardless of the laws on self/home defense, police are aware that they are generally going to have problems if they simply start knocking down doors every time they serve a search warrant. I also think that if we do start seeing every search warrant served with a battering ram and no announcement, the court will backpeddle.

People also forget (although I am sure you have not) that there are already many circumstances in which police to not have to knock and announce.

Anyway, I still think that the harmless error and inevitable discovery rules apply here. The evidence would have been discovered pursuant to the warrant regardless of the manner of entry. The Defendant was not really prejudiced, as he would have been convicted even if the entry had been legal.

[jrkarp]

Most people aren't lawyers so I don't expect them to wade through this stuff.

Agreed, btw, but I get irritated with people commenting on such things without taking the time to find out more than what CNN or FOX News tells them.

[anabolicrhino]

Most people aren't lawyers so I don't expect them to wade through this stuff. I'm not a medical doctor, so I just read abstracts of studies (am I missing important nuances, of course, but it can't really be helped unless I want to go to medical school).

I was most disappointed in the concurrance. Scalia is clearly trying to make new law. Breyer is trying to preserve existing law. Kennedy's concurrence is a weasel. He allows Scalia's vision to move forward but admonishes people not to see this ruling as a diminishment of the knock and announce rule. I call bull**** on that.

One can think this is a good thing. One can think this is a bad thing. But, one cannot treat this as an inconsequential ruling. The holding here says that even if the police admit violating the rule, the defendant's remedy is to file a civil rights claim. This in effect puts the knock and announce rule at the unfettered discretion of the police (nevermind that they ALREADY enjoyed exceptions to it if they thought they were in danger or that the evidence might be destroyed). This is a get out of jail free card for sloppy cops....and it's going to put a lot of people in danger IMO.

The ruling does allow for litigation in a civil court to preserve constitutional rights..So, if you are not a major felon hiding behind an illegal search and seizure defense, you can sue for damages(?) in a civil court. This in itself could(will) be a deterrent for overly assertive home searches. This can unbalance the enviroment of order and trust, within which the police need to operate successfully. Ofcourse it will take a few cases to go against the police in question to build enough precident to serve as a deterrent..but the legal pathway does exist.
A jury of your peers(non cops) will imagine themselves in the same position

[BioHazzard]

The ruling does allow for litigation in a civil court to preserve constitutional rights..So, if you are not a major felon hiding behind an illegal search and seizure defense, you can sue for damages(?) in a civil court. This in itself could(will) be a deterrent for overly assertive home searches. This can unbalance the enviroment of order and trust, within which the police need to operate successfully. Ofcourse it will take a few cases to go against the police in question to build enough precident to serve as a deterrent..but the legal pathway does exist.
A jury of your peers(non cops) will imagine themselves in the same position

Good post. This is exactly right.

Some people are bellyaching as if the SCOTUS ruling amounts to no warrant needed. And even went as far as proclaiming that cops are no longer serving LE purpose. Good grief, the hysteria.

[yeahright]

The ruling does allow for litigation in a civil court to preserve constitutional rights..So, if you are not a major felon hiding behind an illegal search and seizure defense, you can sue for damages(?) in a civil court. This in itself could(will) be a deterrent for overly assertive home searches. This can unbalance the enviroment of order and trust, within which the police need to operate successfully. Ofcourse it will take a few cases to go against the police in question to build enough precident to serve as a deterrent..but the legal pathway does exist.
A jury of your peers(non cops) will imagine themselves in the same position

Damages in such cases are likely to be limited to actual damages (cost to repair the door) and not punitive damages. So, there's no actual restraint. Only if one could prove a pattern of civil rights violations would a police force be looking at a judgment which would have a fiscal impact. Moreover, there are all sorts of complicated issues involving sovereign immunity, venue, good faith defenses, etc. For all practical purposes, the individual citizen really has no recourse to right such a wrong through civil rights litigation.

[anabolicrhino]

Damages in such cases are likely to be limited to actual damages (cost to repair the door) and not punitive damages. So, there's no actual restraint. Only if one could prove a pattern of civil rights violations would a police force be looking at a judgment which would have a fiscal impact. Moreover, there are all sorts of complicated issues involving sovereign immunity, venue, good faith defenses, etc. For all practical purposes, the individual citizen really has no recourse to right such a wrong through civil rights litigation.

I would agree that the citizen will not be reaping a great windfall.
However, the opportunity to seek damages from a loss provided from a non-felonious, but still erronous police entry would be "caus celeb" for a defamation or harassment suit. That a news organization could pick up such a story in an election year could provide some apprehension for any general police department policy concerning "no-Knock" entries.

[CDB]

What bothers me is the progression. The police already had no knock priveleges under certain circumstances where knocking would be obvious idiocy. It's Cato, the special, particular power becomes a general power over time. This works without exception unless something obstructs the forward motion.

[yeahright]

This would be wise. In all honesty, my first thought when I heard the ruling was "****, cops and civilians are going to die because of this."

Told ya so. 92 year old woman scared out of her mind when her door gets kicked in by plainclothes cops shoots at the cops and gets gunned down. No drugs found (so she wasn't a granny drug dealer).

SEATTLE POST-INTELLIGENCER
Woman, 92, dies in shootout with police

Wednesday, November 22, 2006 · Last updated 4:25 a.m. PT

Woman, 92, dies in shootout with police

THE ASSOCIATED PRESS

ATLANTA -- A police official said narcotics officers were justified in returning fire on a 92-year-old woman they shot to death after she shot them as they tried to serve a warrant at her house.

Neighbors and relatives said it was a case of mistaken identity. But police said the woman, identified as Kathryn Johnston, was the only resident in the house at the time and had lived there for about 17 years.

Assistant Chief Alan Dreher said the officers had a legal warrant and "knocked and announced" before they forced open the door. He said they were justified in shooting once they were fired upon.

As the plainclothes Atlanta police officers approached the house about 7 p.m., a woman inside started shooting, striking each of them, said Officer Joe Cobb, a police spokesman.

One was hit in the arm, another in a thigh and the third in a shoulder. The officers were taken to a hospital for treatment, and all three were conscious and alert, police said.

Sarah Dozier, identified as a niece of the woman, told WAGA-TV that there were never any drugs at the house.

"My aunt was in good health. I'm sure she panicked when they kicked that door down," Dozier said. "There was no reason they had to go in there and shoot her down like a dog."

Rev. Markel Hutchins, a civil rights leader, said Johnston's family deserves an apology.

"Of the police brutality cases we've had, this is the most egregious because of the woman's age," Hutchins said.

Hutchins said he would try to meet with Atlanta Police Chief Richard Pennington and would also meet with lawyers.

[CDB]

What's one dead granny when compared with the glorious onward march of the War on Some Drugs and the advancement of state power in general? **** her. Maybe she didn't derserve to die. Maybe a family has been destroyed. Maybe people are srill smoking crack, weed, and snortting and injecting everything they feel like. Maybe kids are still getting killed in gang wars. But it's the law. There is no higher moral or ethical goal than to enforce the law, YR. Those officer are heros!, and Kathryn Johnston is at best a tragic but necessary loss. Quite frankly I'd say the **** probably did something in her life she deserved to die for anyway. I mean, this is America. It's not like we have the right as citizens not to have jack booted Rambo wannabes barging into our houses with automatic weapons firing if we're slightly slower in getting to the door to let them in than they figure is necessary.

And so what if you and other people who actually give a **** about freedom and quaint notions like that predicted this kind of thing happening? It's not like you've made a point or anything. Better the ***** died than we lose a couple kilos of coke or something. I mean you don't want the officers to be in danger or the case to be lost, do you? Of course if they weren't enforcing bull**** laws to begin with that wouldn't be a problem, but **** that. It's the law now and that's all that matters.

Told ya so. 92 year old woman scared out of her mind when her door gets kicked in by plainclothes cops shoots at the cops and gets gunned down. No drugs found (so she wasn't a granny drug dealer).

SEATTLE POST-INTELLIGENCER
Woman, 92, dies in shootout with police

Wednesday, November 22, 2006 · Last updated 4:25 a.m. PT

Woman, 92, dies in shootout with police

THE ASSOCIATED PRESS

ATLANTA -- A police official said narcotics officers were justified in returning fire on a 92-year-old woman they shot to death after she shot them as they tried to serve a warrant at her house.

Neighbors and relatives said it was a case of mistaken identity. But police said the woman, identified as Kathryn Johnston, was the only resident in the house at the time and had lived there for about 17 years.

Assistant Chief Alan Dreher said the officers had a legal warrant and "knocked and announced" before they forced open the door. He said they were justified in shooting once they were fired upon.

As the plainclothes Atlanta police officers approached the house about 7 p.m., a woman inside started shooting, striking each of them, said Officer Joe Cobb, a police spokesman.

One was hit in the arm, another in a thigh and the third in a shoulder. The officers were taken to a hospital for treatment, and all three were conscious and alert, police said.

Sarah Dozier, identified as a niece of the woman, told WAGA-TV that there were never any drugs at the house.

"My aunt was in good health. I'm sure she panicked when they kicked that door down," Dozier said. "There was no reason they had to go in there and shoot her down like a dog."

Rev. Markel Hutchins, a civil rights leader, said Johnston's family deserves an apology.

"Of the police brutality cases we've had, this is the most egregious because of the woman's age," Hutchins said.

Hutchins said he would try to meet with Atlanta Police Chief Richard Pennington and would also meet with lawyers.

[yeahright]

This is the trajedy of the situation. I'm sure the cops believed they were raiding a drug house.....so they play fast and loose with the knock and announce rule because the Supremes just told them they could. Granny lives alone in what is probably a bad neighborhood (hence the drug bust) so she's got a gun. Plainclothes cops bust down her door, she starts shooting, the cops defend themselves and we end up with one dead granny and three wounded cops....all of which could have been avoided if they'd done a real knock and announce...showing some uniforms and badges to establish their status.