The Travesty of “No-Knock” Warrants and Qualified Immunity

We have a rare opportunity to roll back some of the most egregious abuses by the justice system.

Why can the police break into your home before announcing themselves, kill you, and only expect desk duty or administrative leave if the press reports the killing? Think about Breonna Taylor, who was killed in the middle of the night when police, under a no-knock warrant, entered her home after the suspect they were searching for had already been arrested. Think about the 20,000 no-knock warrants executed each year by police nationwide, and the unacceptably high-risk innocent people will die because police did not care enough to get it right.

As we have come to expect, no charges have been filed against the police for Breonna Taylor’s death. Unfortunately, even if they are filed, the police frequently hide behind “qualified immunity,” which bars virtually all lawsuits against police for misconduct.

What is a no-knock warrant and how does it work?

A no-knock warrant allows police to enter property without announcing themselves to search, seize, and arrest. They are given significant latitude in choosing their method of entering the property, including violent entry.

To obtain a warrant, the police must go to a magistrate, present information that allegedly supports probable cause for the warrant, and the magistrate either approves or denies the request. This process is fundamentally flawed.

To start, magistrates frequently are not lawyers. In fact, they might not even have a law degree. In my home state of North Carolina, per N.C. Gen. Stat. 7A-171.2, you can be a magistrate with varying combinations of work experience and a high school diploma, an associate’s degree, or a bachelor’s degree. This means that we have magistrates nationwide who do not have any legal training, yet are responsible for discerning whether information (sometimes based on lies by police) supports a potentially fatal no-knock warrant.

Unsurprisingly, these warrants are hardly ever denied.

Once police secure the no-knock warrant, they are able to enter a home (Sometimes. Not. Even. The. Correct. Home.), and are allowed to kill the inhabitants that respond to their entry.

Further, if you try to defend yourself from police executing a no-knock warrant, you can be charged for murder. Taylor’s boyfriend, who responded to the dead-of-night entry into his home with self-defense gunfire, was charged with the attempted murder of a police officer. Those charges were eventually dropped, no doubt in part because the officer’s account of the entry is highly disputed (i.e. the police say they announced themselves even though they went to a magistrate to get a no-knock warrant to not announce themselves, and the content of the 911 call from that night).

This should terrify all of us because this could happen to any of us.

No-knock warrants are legal because the Supreme Court explicitly blessed them in Richards v. Wisconsin, 520 U.S. 385, 394 (1997), under the justification that announcements are not necessary when evidence can be destroyed or violence can ensue. The federal government and the states took the Court’s approval and ran with it. However, states can still ban the use of no-knock warrants by state police. Unfortunately, only two states have banned no-knock warrants: Florida and Oregon.

The Courts are unwilling (or unable) to fight Qualified Immunity

Without hyperbole or exaggeration, qualified immunity is a free pass for police officer misconduct. The test established by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1984) and its progeny requires a violation of constitutional rights (such as your Fourth Amendment right against unlawful searches, your Fifth Amendment due process rights, and your Fourteenth Amendment equal protection rights), and that this unconstitutional conduct violated a “clearly established” right. According to the Supreme Court, a right is “clearly established” if a hypothetical “reasonable officer” could have believed that their actions did not violate your constitutional rights. Courts have taken this standard to mean that if there is no caselaw exactly on point on the exact same facts, then police have qualified immunity. This amorphous standard means that there is an almost insurmountable bar to address any violation of your constitutional rights by the police.

The Supreme Court and the Circuit courts are in no rush to limit qualified immunity.

The Sixth Circuit Court of Appeals held that police have qualified immunity even if they assault you outside your home, arrest you for standing outside your home, and never identify themselves as police. Why? Because there was no exact case on point, so it was not “clearly established” that the police could not do that. The Sixth Circuit went even further to emphasize that the police did not do anything wrong.

On the other hand, the Fourth Circuit Court of Appeals recently held the police who shot Wayne Jones, a black man who police had already restrained, twenty-two times in the back while he was motionless did not have qualified immunity (at the summary judgment stage). The reasoning for this is that the police reasonably could have known that this was a violation of the man’s constitutional rights.

We cannot count on the Supreme Court to fix this either. The Court shielded qualified immunity on June 16, by refusing to take up any cases about police misconduct this term. The only dissenters from the Court’s decision were Justices Sotomayor and Thomas.

With ironclad legal protection, and without fear of legal repercussions or job termination, police can just break into your house and kill you.

Who can stop no-knock warrants?

State governments and local governments are the only entities that can definitely end no-knock warrants. Congress can stop federal law enforcement from using the warrants. However, there is a question of whether legislation affecting state police could survive a challenge in federal court.

State governments are fundamentally more effective at addressing the issue and have the clear ability to do so under the state police powers under the Tenth Amendment. For example, Louisville passed “Breonna’s Law” which bans issuance of no-knock warrants. This is great progress, but it only applies in the city of Louisville, KY. On the other hand, Florida and Oregon banned no-knock warrants. This means there was no need to convince dozens of jurisdictions to agree to a single reform. States have to take the lead to avoid piecemeal protections for people in their homes.

What can we do about it?

We cannot rely on the courts to save us because they gave police a “get out of jail free” card. Police are unlikely to reform themselves nationwide and are willing to use their political muscle to fight reform in cities. In addition to this, the federal government will not end the use of no-knock warrants without pressure from the President. So, what can we do? I propose three things:

1. Call your state representatives and protest at state capitols. We have to protest to make our voices heard. States, like Florida and Oregon, can directly address the rampant violence from police, so we must make our representative hear us. A new law in a city is a hollow victory when the same travesty is perpetrated in the next town over. We should demand an end to no-knock warrants in every state.

2. Call your Congressman and your Senators to demand they support legislation ending qualified immunity for police officers. Protest outside their offices. When police are unaccountable, we are all subject to the abuses that befall black bodies every day.

3. Vote in the general election for candidates who commit to ending no-knock warrants and qualified immunity.

We have a chance to change things for the benefit of everyone. We cannot let this opportunity slip past us. Too many innocent people have already died, and too many more will die if we don’t make the change now.