Following the British victory at El Alamein, Winston Churchill told the House of Commons: “Now, this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”
As former prosecutors who are now colleagues and law professors, we penned an editorial last week expressing our view that the Louisville grand jury reached the right outcome when it declined to indict anyone for the tragic shooting death of Breanna Taylor. This was not, however, the end of the search to give meaning to her tragic loss of life. It is, instead, “the end of the beginning” of the important quest for justice.
Breonna Taylor was, by all accounts, the innocent victim of a chaotic and violent situation that began when police executed a warrant focused on her ex-boyfriend. According to the public statement by Attorney General Daniel Cameron, because Taylor’s boyfriend shot the first officer to enter the apartment while executing that warrant, the grand jury found the two officers in the apartment were legally justified when they returned fire. And, because no expert was able to provide evidence to prove the deadly shot came from officer Brett Hankinson’s reckless spray of bullets, Taylor’s death could not be legally attributed to him.
But the insufficiency of evidence to meet the legal standard to justify a criminal homicide indictment against any of the officers does not mean that we shouldn’t be asking other critically important questions — questions that may very well reveal an urgent need to reconsider established legal principles.
The first of these is, why is it so easy for police to obtain authorization for no-knock warrant execution? In 1996, the Supreme Court rejected a blanket authorization for such warrants for all drug offenses. But the court also held that the standard to justify such authorization was reasonable suspicion. This is an extremely low standard that, in practice, requires little “more than a feeling” that knocking and announcing will create an imminent danger or result in destruction of evidence.
Taylor’s death, which resulted from a surprised boyfriend acting in what he reasonably believed was self-defense, reveals why this standard is insufficiently lenient. No-knock warrants can have tragic consequences for civilians and officers. Indeed, in Texas, police officers have been shot and killed as they have entered homes to execute no-knock warrants. In one case, the homeowner faces a capital murder charge even though he asserts that he acted in self-defense. In the other case, a grand jury refused to indict after deciding his reaction was justified.
The mortal risks of no-knock warrants are too high to allow authorization based on such a low standard. What is needed from Congress and state legislatures are laws that increase that burden — requiring that police establish the necessity for no-knock execution by a much higher standard, perhaps clear and convincing information.
A closely related question is the time that police must wait between the “knock and announce” and forced entry. In another Supreme Court decision in 2003, the court held that 20 to 30 seconds was a reasonable interval. While the court indicated that each situation must be assessed on its own merits, the message seemed clear: Only a very brief interval is necessary.
It is deeply troubling that such a short interval is normally considered sufficient. Indeed, the officers who entered Breonna Taylor’s apartment apparently did knock and announce. But how likely is it that a loud knock on one’s front door in the middle of the night will lead the homeowner to sprint to the door to respond? Not very. Most people would be frightened and take several minutes to gather themselves and approach the door with great caution.
Like the standard for dispensing with the knock-and-announce requirement, lawmakers should take a hard look at the illogic of this rule and impose a more effective process of providing homeowners notice that gives a truly reasonable opportunity to respond to the police. Doing so could mitigate the risk of the type of violent confrontation that led to Taylor’s death.
There are other questions as well, including the quality of the tactical training provided to police to prepare them for such incidents, and whether and how drug laws have set the conditions for aggressive warrant execution. But what is essential is that we use this tragedy to lift the rock on the many legal and societal issues that converged on that night and resulted in the senseless death of a young woman. No, this is not the end; not by any means.
Geoffrey S. Corn is The Presidential Research Professor of Law at South Texas College of Law-Houston in Texas and a former military prosecutor and defense counsel. Follow him on Twitter @Cornjag1.
Njeri Rutledge is a former prosecutor and works as a law professor at South Texas College of Law Houston. Follow her on Twitter @NjeriRutledge.