Breonna Taylor was shot to death by police serving a warrant at her Louisville, Kentucky, home in March of this year. Calls for reforms of that killing have spread far beyond the Bluegrass State since then. One such effort is underway in Harrisburg now, as Democratic State Senator Tim Kearney of Delaware County has proposed a Pennsylvania version of “Breonna’s Law,” which would ban no-knock warrants in the Commonwealth.
There is a lot to be said for the idea. Liberal or conservative, if you care about civil liberties at all, you probably find it alarming that the state would send armed men to force their way into your house uninvited and unannounced. It is a violation of the ancient sanctity of the home and a situation that places both the police and the accused in grave danger.
The facts of Taylor’s case don’t exactly match the thrust of Kearney’s Senate Bill 1271, and Pennsylvania caselaw already requires much of what reformers want in warrant cases. Even so, Kearney is doing what a legislator should: recognizing a violation of the people’s liberties and writing a law that could fix it. In an age where legislators would often rather pontificate (and then, hopefully, go viral) than legislate, this is a good thing.
As is often the case in a tragedy, wild rumors and disinformation circulated after Taylor was killed. People claimed the police went to the wrong apartment. That turned out to be false — the police had identified Ms. Taylor’s apartment as part of an active drug ring which they planned to raid in conjunction with several other homes. The raid was also called a “no-knock” warrant, but that too is disputed. The warrant originally issued for the March 13 incident was for a “no-knock” warrant — that is, one in which the police burst through the door without announcing themselves first. But, as The New York Times and others have reported, the orders were changed before the raid to “knock and announce,” which meant the police had to identify themselves first.
Liberal or conservative, if you care about civil liberties at all, you probably find it alarming that the state would send armed men to force their way into your house uninvited and unannounced.
Taylor’s boyfriend, Kenneth Walker, says the police did not, in fact, announce themselves, while the Louisville PD, and later the Kentucky Attorney General, maintains that they did.
But given that the warrant was not actually a no-knock warrant, banning no-knock warrants would not have changed the situation. Other factors, though, make the situation nearly as dangerous and as much an infringement upon the liberty of these citizens. What’s the difference between a no-knock raid and one that involves an announcement, waiting ten or fifteen seconds, and then coming in anyway? And is it more or less likely to result in violence when the police crash down the door at half past midnight, as they did in the Taylor case? A suspect determined to shoot at the police will do so whether they announce or not. Others who would possibly submit to the authorities might shoot at an unknown home invader. And if the police know that the suspect is going to shoot whoever comes through the door, announcing their presence is a moot point.
Kearney’s bill requires an announcement and a fifteen-second wait before forcing entry into a dwelling. It would also eliminate some of the conflicting claims that swirl around the Louisville incident by requiring the officers executing the warrant to wear body cameras. This is one of many cases where body cameras would help police officers who follow the rules, creating evidence of their correct actions so that defendants cannot sow doubt in a jury’s mind.
It is somewhat comforting that Pennsylvania already seriously limits the occasions on which a no-knock warrant may be used. The rule in the Keystone State, laid down in Commonwealth v. Stanley and subsequent cases, is that the only exceptions are when (1) the police are “virtually certain” that the occupants already know their purpose; (2) the police have reason to believe that announcing first would endanger them; or (3) the police have reason to believe that the occupants are about to destroy evidence. The third justification is by far the most common: police fear that evidence—narcotics, typically—will be destroyed, so they bend the ancient rule of the sanctity of the home to get to that evidence first.
The second exception is a real concern, but could just as easily justify announcing first. No-knock warrants create a dangerous situation — one that is compounded when the warrants are served in the middle of the night. It is perfectly natural that someone, seeing his home invaded in the dark of night, might believe he is under attack by criminals. That misunderstanding is likely to turn deadly; the situation in the Taylor case could have easily been different, had Kenneth Walker struck one or more officers when he fired on the police entering his apartment.
A suspect determined to shoot at the police will do so whether they announce or not. Others who would possibly submit to the authorities might shoot at an unknown home invader.
Kearney’s bill would narrow even these rare exceptions. The new law would hold that a “law enforcement officer shall physically knock and announce himself or herself before forcibly entering a home and shall wait a minimum of 15 seconds to allow the occupants of the home to respond and open the door.” No exceptions.
This also highlights a longstanding problem with a government increasingly disinclined to protect natural rights. In its zeal to prosecute an endless “War on Drugs,” the state has chipped away at the freedoms protected in the Bill of Rights. Ilya Shapiro of the Cato Institute explained the point in a recent article in National Affairs: “In Criminal Procedure — a leading law-school casebook by Joseph Cook, Paul Marcus, and Melanie Wilson — 12 of 18 cases on probable cause, and 20 of 27 on warrantless searches and seizures, involve drugs. In most of these cases, the Court has whittled away or otherwise made exceptions to the Fourth Amendment.” Drugs are indeed a scourge and are damaging to individuals, families, and communities. But shredding the Constitution to eradicate them has barely stopped anyone from using any drug he wants, while at the same time reducing the freedoms of all Americans.
If our freedoms mean anything, they must still exist for people who are suspected of drug crimes. Warrants should be served on suspected criminals and that, at times, will require breaking down doors and entering homes by force. But changes like those Kearney proposes would make this process less dangerous. Other changes, like showing up in the daytime when possible, could further lower the temperature of a potentially volatile situation.
All of these things can be done while still allowing the police to investigate crimes and apprehend criminals. For all of the talk about law and order these days, we must remind ourselves that “order” applies to both the citizenry and the state. Making a more orderly process to serve warrants will make everyone safer, while reminding us of the government’s primary purpose: protecting the people’s rights.
Kyle Sammin is a senior contributor to The Federalist, co-host of the Conservative Minds podcast, and resident of Montgomery County. He writes regularly for Broad + Liberty. @KyleSammin