How to Slash Needless No-Knock Shootings; Simple Steps to Reduce Risks From Dueling Legal Privileges
The Tragic Death Of Breonna Taylor
WASHINGTON, D.C. (September 25, 2020) - The tragic death of Breonna Taylor, and the near-fatal shooting of Sgt. Jonathan Mattingly, in the execution a no-knock (or perhaps brief-knock) warrant - in a situation in which many impartial legal experts agree that neither shooter would be criminally liable - are just the most recent examples of how the sometimes-conflicting legal policies of self defense and the castle doctrine can cause tragic results for which criminal law provides no remedy, says public interest law professor John Banzhaf.
Many unbiased law professors agree with Kentucky Attorney General Daniel Cameron that Officers Mattingly and Cosgrove are protected from criminal liability - even if their actions in returning gun fire resulted in the death of an innocent person - by the privilege of self defense, which permits them to use deadly force once they were fired upon by Taylor's boyfriend, Kenneth Walker.
But Walker's actions in shooting at intruders whom he allegedly did not know were police are also protected by the castle doctrine - a legal privilege to use force, including, when apparently necessary, deadly force - against someone "forcibly entering" a dwelling, especially at night.
So here is an all-too-common situation in which two different individuals or groups - police entering a dwelling either without knocking or by bashing down a door only seconds after knocking, and individuals inside a dwelling who might not hear or believe an announcement that the intruders are police - may each have a legal privilege to use deadly force against the other, with often tragic results which are largely preventable, argues Banzhaf.
No-Knock Warrants Should Be Banned
While many activists have argued that no-knock warrants should be banned entirely, some experts suggest that they are occasionally necessary to protect police; for example, when breaking into a home reasonably believed to be occupied by a violent criminal likely to arm himself, and shoot police, if given even a few seconds of warning,
But, short of banning such warrants and entries entirely, there are several simple steps which legislators, or even police departments, can require which would likely slash the number of tragic misunderstandings of the type which occurred in the Taylor situation.
1. To limit the use of such warrants and sudden entries to the small percentage of situations in which they are actually necessary, require an additional level or two of approval - e.g., by higher level police supervisors and/or attorneys representing them - before applying for or executing such warrants.
2. To reduce the chances that an occupant will not recognize the intruders as law enforcement officers, require police executing such warrants to wear bulletproof vests marked in large letters, designed to reflect in low-light conditions, the words "POLICE".
3. And to further reduce the chances that an occupant will not recognize the intruders as law enforcement officers, require each of them to enter wearing the distinctive hats worn by police, even if they are otherwise dressed in plain clothes - a signal of identity likely to be seen and recognized even in low-light conditions
4. To help insure that occupants know that the intruders are law enforcement officers, require the announcement of their presence and identity to be made by a loud bullhorn, not just by shouting. This helps to insure that occupants will in fact hear the announcement. It also helps assure them that the announcement is genuine and truthful since it is likely to also alert neighbors; something criminals would not want to do.
5. To help deter wrongful conduct by the police at the time of the entry, and help prevent misrepresentations or other coverups afterwards, require all members of the entry team to wear body cameras which are turned on and left on until the event, including any medical interventions, is complete
6. To limit the harm caused by any shooting which might occur, require at least one person trained in emergency medicine, and carrying an emergency medical kit, to be present. This person could be a civilian EMT waiting outside, or even a police officer with the necessary training and carrying the equipment.
The Clashing Privileges Of Self Defense And The Castle Doctrine
This event was tragic and possibly avoidable, and the legal aftermath should send a strong clear message that some reforms are necessary, since the clashing privileges of self defense and the castle doctrine are likely to remain intact.
These suggestions, which should not unreasonably burden the police nor impede their operations, yet at the same time provide significant protection for both law enforcement officers and the occupants of a dwelling, are offered to help encourage such reforms, says Prof. Banzhaf.
Another approach would be to modify the law with regard to when police may shoot in self defense by incorporating the concept of officer-created danger, he suggests.
In other words, instead of simply judging the apparent danger at the moment the officer made the split-second decision to shoot, permit a jury some leeway to ask to what extent the officers created or exacerbated the threat they are now using to justify their conduct by their prior actions and tactical decisions.
For example, some might argue that the officers here could have announced their intent and identity much more loudly, and perhaps more than once, to help insure that the occupants, who could be sleeping in a distant room with a door closed, would be sure to hear it.
Or perhaps, instead of immediately returning fire, the two officers should have retreated or taken cover, and either loudly warned the occupants, used tear gas or flash-bang devices, etc. to subdue them, and by such less dangerous means effect a peaceful surrender and resolution.
An even clearer example of this principle, says Banzhaf, would be in cases like that of Tamir Rice in Cleveland. There a police car pulled up next to a 12-year old in a park who was suspected of having a gun (which turned out to be a toy). The officers shot and killed him, claiming that they reasonably believed that their lives were in danger when Rice allegedly acted suspiciously.
But some might argue that this is an example of officer-created danger since the police could have remained in or behind their car at a reasonably safe distance and demanded that the boy drop the object, put up his hands, etc. so they would not have reason to believe they were in imminent danger of being shot.
However one looks at it, the Taylor shootings cry out for reforms, argues Banzhaf.