Opportunity knocks for police reform

Speaker of the House Nancy Pelosi and her fellow Democrats included in their police reform bill a partial rollback of no-knock warrants at the federal level by eliminating them in federal drug cases and offering incentives for states and localities to reduce them as well. On the other side of the aisle, Sen. Rand Paul, a libertarian-leaning Kentucky Republican, introduced a bill that would effectively eliminate the practice.

Police execute at least 20,000 no-knock warrants each year. Unfortunately, unannounced raids can result in chaos, confusion, injury, and death. When homeowners don’t know that it is law enforcement (essentially) breaking into their homes, they sometimes, understandably, assume a burglar or criminal is seeking to rob them or hurt their family. In too many sad instances, no-knock raids turn into firefights between law enforcement and confused American gun owners.

We don’t have figures showing exactly how many of these raids go wrong. Data in general on this practice is quite sparse, as police departments have taken great pains to shield relevant information from public scrutiny. But the figures we do have paint a bleak picture.

It doesn’t appear that these warrants are very difficult for police to get. In 2000, the Denver Post analyzed a sample of no-knock warrant requests and found that out of 163 requests, judges refused only five. According to Vox, “10 percent of the time, a judge would approve a no-knock raid even when police had simply asked for a standard warrant.”

Meanwhile, the left-leaning American Civil Liberties Union conducted an analysis that looked at 818 no-knock raids and found seven deaths (including two suicides to escape arrest) and 46 civilian injuries. And there are more than 20 times that number of annual raids.

The human cost of this policing practice manifests itself through stories such as the tragic death of Breonna Taylor.

On March 13, Taylor and her boyfriend Kenneth Walker were awoken by the sound of someone breaking into their Louisville, Kentucky, apartment. In reality, it was the police executing a no-knock warrant as part of a drug crime investigation into a third individual — who didn’t live at the apartment and was already in custody. Not knowing they were police, Walker grabbed his lawfully owned firearm and shot at the unknown intruders. In the firefight that followed, one officer was injured and Taylor was killed, with Walker ending up in handcuffs and arrested for the attempted murder of a police officer. (Charges were later dropped.)

The police later claimed they had announced themselves as law enforcement, but few believe their claims. Multiple neighbors said they heard no such announcement, and the police were there to execute a no-knock warrant, which specifically permits them not to announce themselves or provide notice that it’s the police at the door. Further, seeing as Walker had no criminal background and no drugs were found in the apartment, it’s impossible to imagine why he would have fired his weapon if he knew the people breaking into his home were police officers.

So, in the minds of no-knock critics, the sad story of Breonna Taylor’s unnecessary demise gives life to abstract statistics and shows just how real the human costs of this policing tactic can be. Yet, while the experts I spoke to all condemned Taylor’s death as tragic and unfair, they nonetheless remain deeply divided on the larger policy question of abolishing no-knock warrants.

The Heritage Foundation’s John Malcolm, director of the Meese Center for Legal and Judicial Studies and a senior legal fellow, supports preserving the practice of no-knock warrants but does have some concerns.

“Police do make mistakes, but I would be very reluctant to end no-knock warrants,” he said. “No-knock warrants exist for a reason. … If the police believe they are going into a dangerous situation and that by giving a warning, they are going to give the people on the other side of the door time to grab a weapon and fire at [them] … that is imperiling everybody’s lives.”

“There is also a concern in some cases,” Malcolm warned, “if there are drugs involved, that [knocking and announcing] is going to give somebody time to destroy evidence … flush the drugs down the toilet.”

He acknowledged the tragedy of Taylor’s death and backed Republican efforts to increase data reporting on the use of no-knock warrants for further examination of this issue. But ultimately, Malcolm says, “the odds of the police making a tragic mistake are a lot lower than the odds of giving a warning and all of a sudden confronting an armed group of people on the other side of the door shooting at them.”

CNN law enforcement analyst James Gagliano agreed emphatically.

In our conversation, the 25-year FBI veteran and board member of the Law Enforcement Legal Defense Fund called the move to abolish no-knocks a “complete reflexive, knee-jerk, inappropriate overcorrection.” He speaks from personal experience, having worked in hostage rescue situations and executed warrants on very dangerous criminals, and rejects the characterization of no-knocks as easy to get or regularly abused.

“I served, was a part of, or scrutinized hundreds of warrants [during my time in law enforcement],” Gagliano told me. “The amount of no-knock warrants that I participated in … I can count them on one, maybe two hands. The requirements, the scrutiny level from the judges that looked at these things,” was very high.

“Any time we went to secure a warrant, the scrutinization level from judges was off the chart,” he continued. “No judge is going to just blindly sign off on a no-knock. … No, they required layer after layer of proof of why this is necessary.”

Gagliano spoke at length about how tragic Taylor’s death was and said there was a “fair argument” to be had about Second Amendment and self-defense concerns as they relate to no-knock warrants. But as far as the notion that homeowners might mistake the police for armed home invaders, he said, “How many of those cases happen? I follow the news — law enforcement is what I do … and they are a dust speck, an infinitesimally [rare occurrence].” In the vast majority of cases, he said, “there is no confusion that the police are armed invaders.”

We spoke more broadly about the movement to abolish no-knock warrants and reform other aspects of the criminal justice system, such as the push to repeal “qualified immunity,” which shields police officers from civil lawsuits in many cases. Gagliano said “it’s making it harder to be a cop, more difficult and less safe to be a cop. If you want to improve policing … taking away the protections is going to make it harder to attract good people to the profession. That’s what we need, and I fear that is going to be a problem.”

But other experts passionately reject no-knocks and insist that they are both philosophically untenable and deeply flawed in their real-world execution.

“The problem with no-knock raids is not simply about the power police have to use them, but how, and particularly how often, they are deployed,” said Foundation for Research on Equal Opportunity criminal justice fellow Jonathan Blanks. “Police breaking into homes without first knocking on the door and announcing their presence is only reasonable in extreme situations, such as hostage standoffs or in pursuit of suspects that authorities have strong reason to believe are likely to put up armed resistance. But short of such rare circumstances, Americans should enjoy the security and sanctity of their homes.”

“No-knock raids put both residents and police officers at unnecessary risk because they can provoke armed responses from lawful gun owners who do not realize that the people breaking into their homes with guns are law enforcement personnel,” Blanks continued. “Wrong door raids happen, and thus, every citizen and every gun owner, in particular, ought to be concerned about the unnecessary use of such raids in their communities.”

Cato Institute Vice President for Criminal Justice Clark Neily thinks no-knocks are just the tip of the iceberg.

“No-knock warrants are a particularly problematic application of a problematic tactic in the first place,” he explained. “We overuse SWAT teams. And then to allow them to be used in a particularly dangerous way with no-knock warrants is a problem on top of a problem.”

Neily says the policing tactic is evidence of an alarming mindset prevalent among law enforcement.

“A no-knock is much safer for the police and much more dangerous for the occupant,” he insisted. “So, in effect, the police are choosing a tactical approach that maximizes their own safety and minimizes the citizen’s safety.”

As for the argument that no-knocks are essential for cracking down on truly dangerous individuals, Neily said that we don’t have precise data for no-knocks, but “SWAT teams, in general, are used far more often for serving drug warrants than for the tactical reasons they were supposedly created for, [such as] hostage rescue and barricades.”

When I asked Neily if it’s too easy to get a no-knock warrant or if the system is often abused, he didn’t wait a heartbeat before saying “yes.” He pointed to the fact that, as previously mentioned, some judges even issue a no-knock when just a regular warrant was requested.

“I think it would be a very close call,” Neily said. “Whether on the whole, society might be better off if we said look, even though there are some legitimate uses for no-knock raids, they have been so abused, and are so prone to abuse, that we’re going to do a comprehensive ban. I’m not saying I necessarily support this policy … but it is not a crazy policy, because this is a power that has not only been profligately abused by law enforcement, but I think it’s virtually inevitable that it will be abused.”

No-knock raids may seem like a minor aspect of reform to focus on, but it has two advantages that give it momentum. First, attempts to reform other elements, such as qualified immunity, are at an impasse, and this one has bipartisan backing. Second, the national debate shifted to one over statues and monuments rather than police reform, and this could return it to a place of common ground and modest, though thematically important, change.

Brad Polumbo is a freelance journalist and Washington Examiner contributor. He was previously a fellow on the Washington Examiner commentary desk.