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The Supreme Court and the murder of Breonna Taylor

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It remains unclear to me whether the severe injustice in the case of Breonna Taylor is whether prosecutors tanked potential cases against the cops who killed her or whether the state of law is so bad that it would be impossible for charges to stick even with an impartial jury. I do know there’s no reason to trust the prosecutors, who aren’t being transparent about what transpired in the grand jury and are still asserting as established fact that the cops mysteriously changed their mind an announced their presence despite having a no-knock warrant, although 11 witnesses have said they didn’t hear one and the other one only “remembered” the announcement after a third police interview:

Still, there’s no question that the bigger issue here is the a series of godawful series of Supreme Court decisions holding that no-knock warrants for drug searches are consistent with the Fourth Amendment. David French has a good summary of how we ended up here. The tl; dr is that a unanimous Supreme Court authorized no-knock warrants with huge loopholes that made them increasingly easy to obtain, and a subsequent attempt by a unanimous Court to close the loopholes has predictably failed. Remarkably, the second bite at the apple was to apply a “reasonable suspicion” standard to getting a no-knock requirement based on the potential destruction of evidence.

As some of you will have already recognized, we’ve been down this road before. The current Savvy take is to praise the pragmatism of Warren and Brennan and to dis the more consistently liberal Douglas, but the anti-canonical Terry v. Ohio shows the downside. An opinion by Warren created a “reasonable suspicion” standard for stop-and-frisk searches, hoping that it would be less than probable cause but better than nothing. Very, very predictably, as applied this quickly drifted toward “nothing.” As Douglas’s prescient solo dissent observed:

Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

The “reasonable suspicion” standard has worked exactly as well for no-knock warrants as it did for stop-and-frisk searches, and it’s depressing that the relevant opinions were written by Warren and John Paul Stevens, both of whom should have known better.

The unanimity finally broke with the particularly ridiculous Hudson v. Michigan, a 5-4 Scalia opinion made possible by the confirmation of Sam “Strip Search” Alito, which held that evidence obtained in even illegal no-knock searches was admissible in court. The decision not to apply the exclusionary rule here was perverse; on the one hand no-knock searches are incredibly dangerous for all involved, and on the other hand since they’re so common in drug cases the value to society is relatively minimal. And civil remedies have never effectively deterred police misconduct in the United States and never will.

It’s worth noting here that while the use of no-knock warrants is the worst for the people whose domiciles come under assault, they’re not good for anybody. Police officers could have been very easily killed in this case as well. And for what? To execute a search (of the apartment of a woman who was not herself a suspect) in a case involving a non-violent drug offense, based on suspicions so weak the warrant was clearly illegally granted. No-knock searches, particularly in stand-your-ground jurisdictions, create a context in which everyone is legally authorized to shoot. Outside perhaps of very narrow exceptions where police officers have concrete reasons to fear an unusually violent response, no-knock searches entail a large risk of injury and death for minimal benefit. As French concludes:

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. 

While harsher penalties for the officers would be desirable, The best way to honor the memory of Breonna Taylor would be a ban on no-knock warrants and searches (at a minimum) for non violent drug searches or based solely on the possibility that evidence will be destroyed. And it’s going to have to come from Congress and/or state and local governments, because the Trump Court ain’t going to do it.

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