SWAT team’s violation of basic elements of no-knock of 1997’s Richards get no qualified immunity in the firefight that followed their unreasonable entry. Fact questions remain for excessive force as well. Geiger v. Sloan, 2019 U.S. App. LEXIS 23849 (5th Cir. Aug 8, 2019). As to no-knock:
The plaintiffs successfully alleged a no-knock violation. The Supreme Court established the standard for no-knock entries in its 1997 decision Richards. The officers “must have a 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.” And drug investigations don’t automatically meet this requirement. Rather, the court must consider the actual circumstances of each particular case. Because controlling authority dictates that officers must have reasonable suspicion, the alleged violation is clearly established.
Moving to the supposed violation, there are three reasons why it isn’t clear that Deputy Sloan had reasonable suspicion; and thus why plaintiffs have alleged a constitutional violation.
First, the warrant doesn’t reveal a reasonable suspicion. There is only one reference in the warrant to “no knock”—a mention that the officer who prepared the affidavit “requests a no-knock search due to officer safety and the protection of further evidence.” But the warrant does not go so far as to say that it grants a no-knock entry; nor does it or the accompanying affidavit explain how the officers announcing their presence would create any danger, futility, or risk of inhibiting the investigation.
Second, the plaintiffs allege that knocking would not have been problematic for the officers. Although Sloan in his deposition said that the informant told his colleague that Keeton had guns, that issue is not properly before us. The district court found it to be undisputed that no one ever questioned the informant about weapons. And thus, under Supreme Court caselaw, we must accept that finding for this interlocutory appeal.
Even if we did have jurisdiction to review this finding, it would not matter. There does appear to be sufficient evidence to create a genuine dispute on this issue. Sloan says that the informant told one officer, who in turn told another officer, who then told Sloan that Keeton had weapons. But in his deposition, the informant said that no one ever asked him about weapons. Nor was this weapon information included in the affidavit or warrant. The plaintiffs also allege that the back-door cameras were disabled. And the plaintiffs allege that officers cut off the sewage line before conducting the raid, mitigating the possibility for evidence destruction. Besides, Sloan in his deposition explained that it was customary for his office to conduct night-time, no-knock raids for drug busts. Thus there are genuine disputes of material fact which bear on whether conducting a no-knock raid violated Keeton’s rights. This is not to say that Sloan will not prevail at trial. Instead, the plaintiffs have merely alleged a violation. They still have the burden of refuting the officers’ story. In this appeal, the genuineness of factual disputes is not within our jurisdiction.
Finally, a court that actually looks at the facts for justification of the no-knock …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)