A Tragic Killing and the Laws That Made It Possible

On Amir Locke, no-knock raids, and the legalized gun battles between citizen and state

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One of the most interesting and important questions of American law and culture is the clash between individual responsibility and systemic injustice. When do we chalk up negative outcomes to human agency, and when are negative outcomes baked into the cake by history, sociology, policy, or law?

At the risk of overgeneralizing, different answers to this question have traditionally represented a key dividing line between conservatives and progressives, with conservatives tending to err on the side of emphasizing individual choice and progressives emphasizing systemic effects.

Every now and then, however, the answer to the question of whether systems are to blame can become painfully clear, and in the instance of a specific, controversial police tactic, the evidence demands a verdict—while human agency is still relevant, American law has created a system that renders deadly gun battles between innocent American citizens and police officers exercising their lawful duties a near certainty.

I’m talking about no-knock raids. I’m raising the issue (again) because of the tragic police killing of Amir Locke. I highly recommend this summary of Locke’s case from Reason’s Billy Binion, but the facts are simple: On February 2, a Minneapolis SWAT team executed a no-knock warrant on a downtown apartment.

The no-knock raid was one of three launched as part of a homicide investigation. The police were looking for a suspected shooter. Locke was not the target of the raid. After the police used a key to open the door, they started shouting loudly that they were law enforcement, and an officer kicked a couch.

Locke was apparently sleeping on the couch, and he was obviously startled. Video of the shooting clearly shows that he was holding a gun. A police officer opened fire immediately upon sight of the gun, killing Locke, a lawful gun owner who reportedly possessed a concealed-carry permit.

If you’re looking at the human choices that contributed to Locke’s death, you question the decision to obtain a no-knock warrant, Locke’s decision to sleep with a gun, and the officer’s decision to open fire. At any point, individuals could have made a different choice, and Locke would likely be alive.

But when you zoom out just a bit, you’ll see a series of court cases that in the aggregate have placed two separate forces—armed police and armed citizens—on a collision course, and that collision course has resulted and will result in unnecessary and tragic deaths, of both civilians and police.

Let’s start with two key provisions of the Bill of Rights. The Fourth Amendment provides, in relevant part, that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The Second Amendment states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The salience of both amendments will become very clear, very soon. Let’s walk through the law, step-by-step.

First, while it is generally “unreasonable” for law enforcement to barrel into your home without first knocking and announcing their presence, there are key exceptions to this default rule. In a case called Richards v. Wisconsin, the Supreme Court said that police can obtain and execute no-knock warrants when they possess “reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”

Eagle-eyed legal readers should know two things about this standard: “Reasonable suspicion” is a low bar to clear, and granting no-knock warrants to prevent “destruction of evidence” presents a huge exception to the general knock-and-announce rule. Thus, under this standard (which, believe it or not, actually narrowed the previous rule) big-city police departments sometimes obtain hundreds of no-knock warrants per year.

Second, in a case called Hudson v. Michigan, the Supreme Court held that evidence seized in violation of knock-and-announce rules isn’t subject to the exclusionary rule. Thus, even when police no-knock when they should have knocked, they can still use the evidence they seized against defendants in court. This decision removed a key element of accountability for violations of the Fourth Amendment.

Third, Supreme Court precedent grants officers broad legal protection for the use of deadly force against armed civilians even when the police are in the process of violating civilians’ constitutional rights. In County of Los Angeles v. Mendez, the Court reversed the Ninth Circuit’s “provocation rule,” which permitted plaintiffs to file excessive-force claims under the Fourth Amendment when “an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.”

In plain English, this meant that officers couldn’t be held liable for excessive force if they opened fire because they reasonably feared for their lives, even if their own violations of the Constitution had created the confrontation—such as, in the Mendez case, barging into a man’s dwelling without a warrant and gravely wounding him at the sight of him holding a BB gun.

Put all those cases together, and you have a system that grants police broad leeway to enter homes without knocking, leeway to make mistakes, and leeway to use deadly force when making those mistakes. And all of it is lawful, blessed by the Supreme Court.

Now, let’s get back to the Second Amendment. The one thing that is currently clear about the constitutional law of gun ownership is that the Second Amendment guarantees the right to keep a firearm in the home for self-defense. State statutes and other lower-court rulings may expand that right to include, for example, the right to carry weapons outside the home, but in every state in the union, the government must, at least, protect the right to defend your home with a gun.

It does not take a rocket scientist, a policy wonk, or a legal scholar to see the inevitable collisions that result when the courts empower the state to enter your home without warning while also protecting your right to protect your home with deadly force. One result is legal gun battles between police and citizens.

Yes, legal.

The horrific killing of Breonna Taylor presents one such example. Police barged into her home (they had a no-knock warrant but testified that they knocked before they battered their way through the door). Taylor’s boyfriend, Kenneth Walker, hears the pounding, says he doesn’t hear anyone identify themselves as police, and grabs a gun that he lawfully owns and has a legal right to use to defend himself in Taylor’s home.

When police broke down the door, Walker had no duty (or means) to retreat, and so he fired a single shot at the people he saw entering the apartment. Since he could not in the moment reasonably identify the individuals as officers, Walker’s shot was legal.

The instant officers took fire, they had a right to respond. They have a right to defend themselves against deadly force. Their aimed shots back at Walker were legal also. I use the term aimed shots because a different officer was in fact charged for firing indiscriminately into the apartment from outside.

The legality of (most of) the gun battle is why the charges initially filed against Walker were dropped and the officers who fired aimed shots at Walker (which missed and killed Taylor) were not charged at all.

Amir Locke didn’t shoot at officers in Minneapolis, but he did nothing legally wrong by grabbing a gun he lawfully owned when the door swung open and police kicked the couch he was sleeping on. At the same time, it’s hard to say that the police officer who fired the fateful shots broke the law when he so clearly saw a gun in Locke’s hands.

Something has to give, and it should not be the right of a citizen to defend his home. The text of both the Second and the Fourth Amendments protects the citizen. It does not empower the state. The citizen exercises the right to keep and bear arms. The citizen enjoys the right to be free from unreasonable searches and seizures.

I don’t believe no-knock raids should be entirely abolished. There are circumstances where surprise entry is necessary to respond to an imminent threat to human life. But the system must change. Its dynamics provide state officials with too much autonomy and too little accountability, and place both officers and civilians under too much pressure while holding deadly weapons in their hands.

Amir Locke should still be alive. Breonna Taylor should still be alive. Alteria Woods should still be alive. The list goes on. For example, a New York Times investigation found that 81 civilians and 13 police officers died during no-knock raids from 2010 to 2016. It’s past time to scrutinize not just the practice, but also the precedents that make it possible. American laws are creating conflicts between citizens and cops, and both sides are paying a dreadful price.