Many people on the run-down northwest Atlanta street where Kathryn Johnston lived fortify their windows with metal bars and arm themselves for protection. Johnston, 92, was no exception. Alone in her home, she was waiting with her gun on Tuesday night when a group of plainclothes officers with a warrant knocked down her door in a search for drugs, police said. She opened fire, wounding three officers, before being shot to death, police said.
Police say they identified themselves, and had a legitimate warrant to search her house. But then, they always say that. I don't mean to imply that these particular officers did anything wrong when I say that, nor do I mean to imply that they didn't have a right to defend themselves. Nonetheless, it's true that police departments can be somewhat less than...well, honest, when it comes to incidents like this.
This news leads TalkLeft to talk about the Supreme Court's recent decision which brought to an end to the application of the exclusionary rule when it comes to violations of knock-and-announce warrants:
Since Justice Scalia and his cohorts on the U.S. Supreme Court decided last Term in Hudson v. Michigan that the exclusionary rule no longer applies to knock-and-announce, the police no longer have any incentive to comply with the law, although the Court said that there were other purported protections of citizens besides the exclusionary rule. (Mrs. Johnston and her family would certainly differ.) And, if the police no longer have an incentive to comply with the law, it is only natural that innocent deaths will happen, both of officers and civilians. I wrote the brief in the knock-and-announce case of Wilson v. Arkansas and I wrote most of the brief in Richards v. Wisconsin. The government always talks about the need to not announce to protect officers from injury or death at the hands of criminals, but they never wrote in any brief that they were the slightest bit concerned with potential deaths of civilians or of police at the hands of innocent civilians.
Mr. Justice Scalia and those who voted with you, this death was encouraged by your holding. I'm not going to the extreme of saying that this poor woman's death is "on your hands," but her death certainly points out that you did not know what you were talking about when you wrote Hudson and uncritically took all the "empirical evidence" and government arguments at face value, ignoring reality and common sense. In my fourteen years of intimate experience with the knock-and-announce rule since the suppression hearing in Wilson, I have seen the callousness of police and courts to the "right of the people to be secure" "from unreasonable searches and seizures."
In the past, when the police broke into someone's home without announcing themselves, executing an otherwise valid arrest warrant that required they knock and announce, the evidence obtained from that raid was barred at trial by the exclusionary rule. Much ink has been spilled over the exclusionary approch; conservatives hate it because in some instances criminals can get away with a crime when valuable evidence is suppressed at trial. Liberals like it because it's the most direct punishment for police that break the law, and they consider other remedies (such as civil suits, or administrative procedures) inadequate. I tend to favor the exclusionary approach myself (big surprise, right?) I think conservatives get too worked up about criminals "getting away" with crimes as a result of it's application, because after all, those are the only cases we ever hear about (sample bias, and all that.) Even if the exclusionary rule effectively deters the police from breaking the law, we're not going to hear about the number of times police didn't just break someone's door down instead of obeying the warrant's requirements, nor will we hear about all the times someone who committed a crime sued the police because they violated a warrant, nor will we hear about all the times someone who didn't commit a crime sued the police for violating a warrant. The exclusionary rule teaches a harsh lesson to cops who violate the requirements of a warrant, which means it's likely they'll remember to abide by the rules the next time. Other remedies simply don't reach as directly to the problem.
However, as I said, conservatives don't like the rule. They don't like the idea that criminals can get away with crimes, even if the side benefit is to protect non-criminals like us from having our doors knocked down in the dark of night by police who ought to know better. Thus the result in Hudson v. Michigan. The problem with the Supreme Court's ruling is that they seem willing to ignore all the evidence that seems to indicate that some police, in love with the para-military style raid, act all out of proportion to the threat of the suspected criminal they're attempting to arrest:
On the raid video, the energy in the bunker is almost tangible despite the distant sound and shaky camera work. A diagram of the Davis house based on Chris Davis' description is drawn on the room's white wipe-off board; it will later prove to be incorrect. A list of paired names is written beside the diagram. Hill's is near the bottom, the usual place for the team medic.
Wallace is seen moving Hill to the point position. With so many rookies on this raid, he needs Hill, who has field experience, up front. According to pre-raid intelligence, Troy Davis was liable to open the door armed.
The "intelligence" was based on what Troy's cousin had seen two weeks earlier, just after Thanksgiving at his aunt Barbara's house. She'd called Chris, asking him to come console her angry, depressed son. Though a family feud over the death of Barbara's husband, Chris' uncle, had been raging for years, he agreed. Later, he would tell his father, Robert Davis, that he saw marijuana-growing equipment in Troy's closet. He said Troy offered to sell him drugs. Robert Davis sent an e-mail to the police reporting what his son had told him. The correspondence found its way to the head of the special investigations unit, Andy Wallace. They had a couple of phone conversations. He did a background check on Chris and verified with his father that he was employed. In Wallace's opinion, that made him reliable. Then, he took the evidence to municipal Judge J. Ray Oujesky, who refused to sign a warrant. In a deposition, Oujesky says he wasn't familiar with narcotics warrants and was unwilling to sign off on information given by a previously unused informant.
Oujesky said that because Davis had not given "reliable and credible information previously" he was having difficulty finding probable cause. But district Judge Sharon Wilson, whom Wallace approached next, didn't. As soon as he had her signature the morning of December 15, he called the team together.
When Hill crosses the Davis threshold, two stories begin: In one, Hill shoots an armed Troy Davis standing at the end of the hall before he has a chance to kill any police officers. Hill becomes the hero. In the other, Hill is startled by an unarmed Davis as he comes around the hallway corner into the living room and instinctually fires.
What was the raid over? Some drug paraphanelia and four ounces of marijuana. Now this was not a knock-and-announce raid; because of the intelligence claiming that Troy Davis was heavily armed, the police were permitted to knock the door in and move quickly to overwhelm the suspect. But something went wrong, and Troy Davis was dead only moments later.
This isn't what happend in Kathryn Johnston's case. Police apparently knocked and when she failed to answer, they knocked the door down and went in. But the result is the same; someone died who probably shouldn't have, and that someone in this case was an elderly woman who probably did not deal drugs. And I agree with the blogger above that it's simply unreasonable for the Supreme Court to dismiss the very real deaths of people in these types of drug raids when they're loosening the standards for how cops can be punished for breaking the rules. Surely the deaths of innocent civilians at the hands of over-zelous police is just as much a concern as criminals getting away with possessing or dealing drugs.
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