November 25, 2006
RADLEY BALKO HAS MORE on the Atlanta no-knock raid that resulted in the death of a 92-year-old woman. Plus this useful observation:
If the police storm in and you -- not being a drug dealer and consequently having no reason to think the police might break into your home -- mistake them for criminal intruders and meet them with a gun, you are at fault. I guess your crime is living in an area where drug dealers could use your porch while you aren't home, or being a too trusting, frail, old woman. Sorry about your luck.
On the other hand, if the police break into your home and they mistake the blue cup, TV remote, the t-shirt you're holding to cover your genitals because they broke in while you were sleeping naked, or the glint off your wristwatch for a gun -- and subsequently shoot you (all of these scenarios have actually happened), well, then no one is to blame. Because, you see, SWAT raids are inherently dangerous and volatile, and it's perfectly understandable how police might mistake an innocent person holding a t-shirt for a violent drug dealer with gun.
Do you see the double standard, here? If the warrant is legit, they are allowed to make mistakes. You aren't.
This discrepancy grows all the more absurd when you consider that they have extensive training, you don't. They have also spent hours preparing for the raid. You were startled from your sleep, and have just seconds to make a life-or-death decision. To top it all off, many times they've just deployed a flashbang grenade that is designed to confuse and disorient you.
What's the solution? It isn't to encourage people to start shooting raiding cops to kill. That kind of talk is foolish, and needs to stop. But it isn't to encourage to people to refrain from defending their homes, either. Both of those suggestions will lead to more people dying -- both police and citizens.
The solution is actually pretty simple: Stop invading people's homes for nonviolent offenses.
Yes. Also, the police should be held strictly liable for mistakes, without benefit of official immunity. And they should be required to record video of the entire proceedings, in a tamper-resistant format.
UPDATE: Over at The Volokh Conspiracy, an interesting comment from Tom Holsinger:
I have about 700-800 hours of experience litigating police brutality and excessive force cases as plaintiff's counsel in private practice, and evaluating them as a trial court research attorney, mostly the former. My county, Stanislaus in California, had a tragedy occur during a no-knock raid when a police officer accidently killed a young boy in bed with the accidental discharge of a shotgun.
IMO the standard which should be used for wrongful death and injury actions by persons other than those identified in the warrant in no-knock raids should be strict liability. Ditto for even the person identified in the warrant if the items searched for are not found.
No-knock searches create an inherent major risk of harm to innocent persons such that compensation for injury should be mandated. I.e., immunity would be irrelevant. Pay immediately. Plus a reasonable attorney's fee.
I think he's exactly right, of course.