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Invading Cops Can Make Mistakes, You Can't:

This observation by Radley Balko on no-knock raids (via Instapundit) is worth repeating.

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.

UPDATE: In response to Orin's post above, let me make two points. First, I think it is a reasonable claim that, as a practical matter, the legal system is more lenient on police officers who overstep their bounds in these sorts of raids than it is on those who respond with force to no-knock raids out of a fear for their lives. Just because the law on the books is even-handed does not mean it will be applied in an even-handed fashion. If there is empirical data suggesting Radley Balko's characterization of how the law of self-defense and civil liability for police officers is applied in these sorts of circumstances, I would be quite interested in seeing it.

Second, when Balko advocates that police "stop invading people's homes for nonviolent offenses," I believe he is referring to the sort of no-knock, military-style raids about he so often writes. As I understand Balko's recommendation, these are the sorts of "invasions" to which he objects, and he is not recommending that police lose all ability to execute warrants and search peoples homes for evidence of non-violent crimes. Balko's recommendation may still, on the margin, make it more difficult for the police to collect evidence of certain crimes. The question is then whether this is worth the reduced likelihood of police and civilian casualties caused by excessive reliance on military tactics in law enforcement. From what I have read to date, I think it is, but I would certainly be interested in arguments to the contrary.

Radley Balko has more here.

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A Quick Reaction to Radley Balko's Comment: My co-blogger Jonathan posts an interesting comment from Radley Balko about liability for search warrants, with the addition that Radley's comment is "worth repeating." I have a different take: Radley's comment strikes me as problematic on a number of levels. First, it isn't an accurate expression of the law, either from the standpoint of self-defense law or the standpoint of civil actions against the police. Second, as best I can tell, we really don't know the facts of the Johnston case to which the post refers. A lot of bloggers just seem to know, but as far as I can tell we have a lot of speculation without a solid basis to know what happened.

  [See Second Update Below] Third, Radley's "pretty simple" solution seems quite troubling to me. Under his proposed solution — "stop invading people's homes for nonviolent offenses" — a person could commit any white collar fraud, embezzle money from the elderly, bribe Congressmen, or engage in a global child pornography trading ring knowng that the police won't invade their home to collect evidence against them. I assume these crimes are all nonviolent offenses, and if I understand Radley's idea, homes wouldn't be searched for evidence of such crimes being committed. That doesn't seem like a very good solution to me.

  UDPATE: A few commenters, including my co-blogger Ilya Somin, think that Radley is implicitly limiting his proposal to no-knock searches, maybe at night, and maybe "SWAT style raids" that use a "high degree of force" and "paramilitary tactics" instead of the usual "searches" that use a "normal" degree of force. I'm not sure I see this in Radley's post, but I thought I should at least flag the uncertainty.

  ANOTHER UPDATE: Radley's latest post makes clear that my earlier post badly misunderstood his position. My apologies. In its Fourth Amendment cases, the Supreme Court routinely refers to "invasion" of a home to mean any physical access, and I assumed Radley was using the word in the way the Supreme Court does, not to refer only to no-knock paramilitary raids. Radley seems to think my misunderstanding was in bad faith; it wasn't. In any event, I regret the misunderstanding.
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Radley Balko Responds to Orin Kerr:

Radley Balko responds to Orin Kerr's criticism of his position on paramilitary police raids here.

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My Apologies: Radley's latest post makes clear that my earlier post badly misunderstood his position. My apologies. In its Fourth Amendment cases, the Supreme Court routinely refers to "invasion" of a home to mean any physical access, and I assumed Radley was using the word in the way the Supreme Court does, not to refer only to no-knock paramilitary raids. Radley seems to think my misunderstanding was in bad faith; it wasn't. In any event, I regret the misunderstanding.
24 Comments