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Supreme Court Precedent Killed Breonna Taylor
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Supreme Court Precedent Killed Breonna Taylor

And it will kill again.

If you’ve followed the eruption of Black Lives Matters protests across the country, you’ve heard three names time and time again—George Floyd, Ahmaud Arbery, and Breonna Taylor. Floyd died under officer Derick Chauvin’s knee, and Chauvin and his fellow officers will stand trial for Floyd’s death. A man named Travis McMichael shot Arbery after he and his ex-cop father chased him through a Georgia neighborhood. The McMichaels and one other man will stand trial for Arbery’s death. 

Breonna Taylor died in a hail of bullets while Louisville police served a no-knock warrant on her home. There were no drugs in her house. She was not even the target of the police investigation. No one has been arrested, and the fact that no officers are (yet) standing trial has been the source of ongoing public outrage. “Say her name” is the battle cry for those who seek justice for an innocent young woman, gunned down in her own house by the very police who swear to “protect and serve.” 

For the past several days I’ve been doing a deep dive into the facts and law of the case, and I’ve come to a singular and depressing conclusion: Supreme Court precedents killed Breonna Taylor. These court precedents have killed before. And while there is an outside chance that an individual officer may be held legally responsible for her death, the prime movers here are the forces the court has set into motion, and unless there are substantial legal reforms, those precedents will kill again.

Before we dive into the cases, let’s first look at the facts of this incident. In early afternoon on March 12, the Louisville Metro Police Department obtained a no-knock search warrant for Taylor’s home. The purpose of the warrant was to search for and seize drugs, drug paraphernalia, and any other objects (weapons, financial records) related to drug trafficking. 

But if you read the warrant carefully, you note something rather interesting. The vast majority of the evidence—involving drug trafficking by two individuals, Adrian Walker and Jamarcus Glover—doesn’t apply to Taylor or her apartment at all. 

The warrant describes in detail the reasons for raiding a different property, a residence described as a “trap house” (that’s slang for something like a “crack house,” a place where traffickers deal drugs). So why raid Taylor’s apartment? Here the warrant says that Glover and Walker had been seen at Taylor’s house and that Glover had been seen taking a package from Walker’s apartment to the alleged trap house. The warrant alleges that Glover had received mail at Walker’s apartment, and it is “not uncommon for drug traffickers to receive mail packages at different locations.” 

To justify the request for a no-knock warrant, the police made this general claim:

Affiant is requesting a No-Knock entry to the premises due to the nature of how these drug traffickers operate. These drug traffickers have a history of attempting to destroy evidence, have cameras on the location that compromise Detectives once an approach to the dwelling is made, and a have history of fleeing from law enforcement.

There is zero specific information alleging misconduct by Taylor, and it was her apartment that was the target of the raid. 

At approximately 12:40 a.m. on March 13, the police executed the search warrant. The police claim that they knocked and announced their presence before forcing entry into the apartment. Taylor was in bed with her boyfriend, Kenneth Walker. In interviews after the incident, Walker claims there was banging at the door, but he did not hear anyone say “police.” He grabbed a licensed firearm and walked toward the door with Taylor.

When police made their forceful entry, Walker fired his weapon, striking an officer in the leg. The police responded with a hail of gunfire, hitting Taylor at least eight times. After the firing stopped, yet before Walker surrendered to the police, he made a frantic 911 call that started, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.” 

Shortly after the call, Walker surrendered to officers. Taylor died at the scene. 

You can already tell why this case is far more complex than the killings of Floyd and Arbery. Police were serving a seemingly lawfully obtained search warrant late at night, were allegedly fired upon first, and they returned fire. Taylor’s death in the crossfire was tragic, but absent evidence of truly reckless and grotesquely indiscriminate return fire from police, where’s their crime? 

In fact, officers initially charged Walker with a crime, for firing on police. Those charges have since been dropped. 

But let’s tape a step back and look at the law. For decades, the Supreme Court has handed down a series of cases that have spawned a series of inevitable and tragic clashes between police and lawfully armed homeowners, and unless the law changes, these clashes will not stop

First, let’s talk about no-knock raids. I’d urge everyone to read Radley Balko’s outstanding extended analysis of the no-knock warrant in Taylor’s case (and of the law surrounding no-knock warrants more broadly), but the short version of the problem revolves around three key Supreme Court cases. The first, Wilson v. Arkansas (1995) articulated a default rule that police must peacefully knock and announce their presence before serving warrants on a person’s home. The case, however, created a broad exception that has since been subject to widespread abuse. 

“Knock and announce,” did not apply, the court held, in circumstances where police feared violence, a suspect had escaped from custody and was seeking refuge in his home, and when police feared the destruction of evidence.

The potential for abuse was obvious. And sure enough, Balko notes, officers began to allege that “all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.” So in 1997 the court attempted to narrow the loophole. In Richards v. Wisconsin, SCOTUS held that generalized fears of violence, flight, or lost evidence weren’t enough to justify no-knock raids. Concerns had to be specific:

Thus, the fact that felony drug investigations may frequently present circumstances warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Instead, in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement.

So, the balance was restored, right? Wrong. The grounds for granting no-knock warrants were still extremely lenient:

In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

For those who don’t know, “reasonable suspicion” is not a high bar to clear.

Moreover, in 2006, a sharply divided Supreme Court ruled in Hudson v. Michigan that evidence seized in violation of “knock and announce” requirements was not subject to the exclusionary rule. In plain English, that meant that officers could violate requirements to knock and announce and use the evidence they gained in court. 

While officers who violated knock-and-announce rules could still be sued, qualified immunity would block many, and perhaps most of those suits. The end result is a system of interlocking precedents that both empower no-knock warrants and limit accountability for their abuse. Even worse, the flexibility created by this precedent helped foster a number of bad police practices, including “quick-knock” raids where the announcement and the breaching of the door were simultaneous or nearly-simultaneous—which can turn knock and announce warrants into functional no-knock raids.

But that’s not all—not by a long shot. Supreme Court precedents also give police broad authority to shoot armed citizens, even when the police (not the citizen) are violating the Constitution. Let’s look at a recent (and disturbing) SCOTUS precedent that slapped down a 9th Circuit effort to increase police accountability for the use of force. 

In County of Los Angeles v. Mendez, officers who were looking for a dangerous parolee entered a man named Angel Mendez’s dwelling without a warrant. Here’s what happened next:

When Deputy Conley opened the wooden door and pulled back the blanket, Mendez thought it was [his neighbor] and rose from the bed, picking up the BB gun so he could stand up and place it on the floor. As a result, when the deputies entered, he was holding the BB gun, and it was “point[ing] somewhat south towards Deputy Conley.” Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, discharging a total of 15 rounds. Mendez and [his girlfriend] “were shot multiple times and suffered severe injuries,” and Mendez’s right leg was later amputated below the knee.

Mendez did nothing wrong. He was shot anyway. He sued, and the 9th Circuit not only held that the deputies’ warrantless entry violated clearly established law and that their use of force violated the 9th Circuit’s so-called “provocation rule,” which permitted “an excessive force claim under the Fourth Amendment ‘where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.’”

The Supreme Court reversed the 9th Circuit, holding that the provocation rule created unnecessary burdens on officers. Each individual use of force should be evaluated according to the specific facts and circumstances “when the conduct occurred.” The provocation rule, by contrast:

instructs courts to look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force. That distinct violation, rather than the forceful seizure itself, may then serve as the foundation of the plaintiff ’s excessive force claim.

The practical result is that police officers often cannot even be held civilly liable (much less prosecuted criminally) when they open fire on citizens in their own home while violating those citizens’ constitutional rights

Cases like this happen across the nation. One of the most egregious court opinions I’ve ever read involved the death of a man named Andrew Scott

Late one evening, police—who were seeking a dangerous suspect—pulled up at Scott’s door. They were at the wrong house. According to the relevant evidence, they did not turn on their police lights. They did not identify themselves as police officers. They had no search warrant. They pounded on the door of the house, Scott was nervous, so he answered the door holding his gun. It was pointing down at the ground.

Scott saw a crouching figure outside in the darkness, holding a gun. He immediately started to retreat, but the police opened fire. They gunned him down in two seconds flat. The 11th Circuit granted qualified immunity to the officer who fired the fatal shots. There was no criminal prosecution. There were no civil damages. 

Let’s throw the final ingredient into this deadly stew—the Second Amendment. According to District of Columbia v. Heller, there exists a constitutional right to possess a handgun for self-defense in your own home. According to the statutes in multiple states—including Kentucky—the “castle doctrine” holds that a person has no duty to retreat when they have “reason to believe” that a person is unlawfully and forcibly entering their dwelling. 

The Kentucky statute explicitly states that the doctrine doesn’t apply when the person entering is a peace officer who has “identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.”  

In the real world, that distinction is not easy to make. Recall Walker’s 911 call. If he was telling the truth in the moment, even immediately after the shootout, he didn’t know what was happening. Many of these dynamic entries take place late at night, triggering absolute chaos in a home when people were moments before sleeping soundly. Cops are yelling, dogs are barking, and armed men are sprinting through your home in the dark. In that moment—absent immediate clarity regarding the officers’ identity—multiple state statutes give you the right to reach for a gun the Constitution permits you to possess. 

Something (or some things) have to give, and those “things” are no-knock raids and qualified immunity. Individual liberties should not be sacrificed on the altar of police drug raids, and victims of civil rights abuses should be entitled to receive compensation for their losses, including their injuries and wounds. 

Breonna Taylor is but one casualty of a larger phenomenon that has created “a trail of blood” across the United States. Supreme Court precedent has empowered these conflicts, but legislatures can change the law. Widespread no-knock raids are incompatible with civil liberties, including one of the most basic civil liberties of all—the fundamental right of self-defense. 

One last thing … 

If you want to dive a bit deeper into no-knock raids, this brief Vice documentary—also based around Taylor’s case—is worth your time:

Photograph by Gotham/Getty Images.

David French is a columnist for the New York Times. He’s a former senior editor of The Dispatch. He’s the author most recently of Divided We Fall: America's Secession Threat and How to Restore Our Nation.