Death at Your Door: Knock-and-Talk Police Tactics Rip a Hole in the Constitution

By John W. Whitehead

Commentary_JohnWhitehead_150x150“It’s 4 in the morning, there’s headlights that are shining into your house; there’s a number of different officers that are now on the premises; they’re wearing tactical gear; they have weapons; and they approach your front door. Do you think that the ordinary citizen in that situation feels that they have an obligation to comply?— Michigan Supreme Court Justice Richard Bernstein

March 30, 2017 ” –

It’s 1:30 a.m., a time when most people are asleep.

knocktalkYour neighborhood is in darkness, except for a few street lamps. Someone—he doesn’t identify himself and the voice isn’t familiar—is pounding on your front door, demanding that you open up. Your heart begins racing. Your stomach is tied in knots. The adrenaline is pumping through you. You fear that it’s an intruder or worse. You not only fear for your life, but the lives of your loved ones.

The aggressive pounding continues, becoming more jarring with every passing second. Desperate to protect yourself and your loved ones from whatever threat awaits on the other side of that door, you scramble to lay hold of something—anything—that you might use in self-defense. It might be a flashlight, a baseball bat, or that licensed and registered gun you thought you’d never need. You brace for the confrontation, a shaky grip on your weapon, and approach the door cautiously. The pounding continues.

You open the door to find a shadowy figure aiming a gun in your direction. Immediately, you back up and retreat further into your apartment. At the same time, the intruder opens fire, sending a hail of bullets in your direction. Three of the bullets make contact. You die without ever raising your weapon or firing your gun in self-defense. In your final moments, you get a good look at your assailant: it’s the police.

This is what passes for “knock-and-talk” policing in the American police state.

“Knock-and-shoot” policing might be more accurate, however.

Whatever you call it, this aggressive, excessive police tactic has become a thinly veiled, warrantless exercise by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night.

Poor Andrew Scott didn’t even get a chance to say no to such a heavy-handed request before he was gunned down by police.

It was late on a Saturday night—so late that it was technically Sunday morning—and 26-year-old Scott was at home with his girlfriend playing video games when police, in pursuit of a speeding motorcyclist, arrived at Scott’s apartment complex, because a motorcycle had been spotted at the complex and police believed it might belong to their suspect.

At 1:30 a.m., four sheriff’s deputies began knocking on doors close to where a motorcycle was parked. The deputies started their knock-and-talk with Apartment 114 because there was a light on inside. The occupants of the apartment were Andrew Scott and Amy Young, who were playing video games.

First, the police assumed tactical positions surrounding the door to Apartment 114, guns drawn and ready to shoot.

Then, without announcing that he was a police officer, deputy Richard Sylvester banged loudly and repeatedly on the door of Apartment 114. The racket caused a neighbor to open his door. When questioned by a deputy, the neighbor explained that the motorcycle’s owner did not live in Apartment 114.

This information was not relayed to the police officer stationed at the door.

Understandably alarmed by the aggressive pounding on his door at such a late hour, Andrew Scott retrieved his handgun before opening the door. Upon opening the door, Scott saw a shadowy figure holding a gun outside his door.

Still police failed to identify themselves.

Unnerved by the sight of the gunman, Scott retreated into his apartment only to have Sylvester immediately open fire. Sylvester fired six shots, three of which hit and killed Scott, who had no connection to the motorcycle or any illegal activity.

So who was at fault here?

Was it Andrew Scott, who was prepared to defend himself and his girlfriend against a possible late-night intruder?

Was it the police officers who banged on the wrong door in the middle of the night, failed to identify themselves, and then—without asking any questions or attempting to de-escalate the situation—shot and killed an innocent man?

Was it the courts, which not only ruled that the police had qualified immunity against being sued for Scott’s murder but also concluded that Andrew Scott provoked the confrontation by retrieving a lawfully-owned handgun before opening the door?

Or was it the whole crooked system that’s to blame? I’m referring to the courts that continue to march in lockstep with the police state, the police unions that continue to strong-arm politicians into letting the police agencies literally get away with murder, the legislators who care more about getting re-elected than about protecting the rights of the citizenry, the police who are being trained to view their fellow citizens as enemy combatants on a battlefield, and the citizenry who fail to be alarmed and outraged every time the police state shoots another hole in the Constitution.

What happened to Andrew Scott was not an isolated incident.

As Supreme Court nominee Neil Gorsuch recognized in a dissent in U.S. v. Carloss: “The ‘knock and talk’ has won a prominent place in today’s legal lexicon… published cases approving knock and talks have grown legion.”

In fact, the Michigan Supreme Court is currently reviewing a case in which seven armed police officers, dressed in tactical gear and with their police lights on, carried out a knock-and-talk search on four of their former colleagues’ homes early in the morning, while their families (including children) were asleep. The police insist that there’s nothing coercive about such a scenario.

Whether police are knocking on your door at 2 am or 2:30 pm, as long as you’re being “asked” to talk to a police officer who is armed to the teeth and inclined to kill at the least provocation, you don’t really have much room to resist, not if you value your life.

Mind you, these knock-and-talk searches are little more than police fishing expeditions carried out without a warrant.

The goal is intimidation and coercion.

Unfortunately, with police departments increasingly shifting towards pre-crime policing and relying on dubious threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports aimed at snaring potential enemies of the state, we’re going to see more of these warrantless knock-and-talk police tactics by which police attempt to circumvent the Fourth Amendment’s warrant requirement and prohibition on unreasonable searches and seizures.

We’ve already seen a dramatic rise in the number of home invasions by battle-ready SWAT teams and police who have been transformed into extensions of the military. Indeed, with every passing week, we hear more and more horror stories in which homeowners are injured or killed simply because they mistook a SWAT team raid by police for a home invasion by criminals.

Never mind that the unsuspecting homeowner, woken from sleep by the sounds of a violent entry, has no way of distinguishing between a home invasion by a criminal as opposed to a government agent.

Too often, the destruction of life and property wrought by the police is no less horrifying than that carried out by criminal invaders.

These incidents underscore a dangerous mindset in which civilians (often unarmed and defenseless) not only have less rights than militarized police, but also one in which the safety of civilians is treated as a lower priority than the safety of their police counterparts (who are armed to the hilt with an array of lethal and nonlethal weapons).

In fact, the privacy of civilians is negligible in the face of the government’s various missions, and the homes of civilians are no longer the refuge from government intrusion that they once were.

It wasn’t always this way, however.There was a time in America when a person’s home was a sanctuary where he and his family could be safe and secure from the threat of invasion by government agents, who were held at bay by the dictates of the Fourth Amendment, which protects American citizens from unreasonable searches and seizures.

The Fourth Amendment, in turn, was added to the U.S. Constitution by colonists still smarting from the abuses they had been forced to endure while under British rule, among these home invasions by the military under the guise of writs of assistance. These writs were nothing less than open-ended royal documents which British soldiers used as a justification for barging into the homes of colonists and rifling through their belongings.

James Otis, a renowned colonial attorney, “condemned writs of assistance because they were perpetual, universal (addressed to every officer and subject in the realm), and allowed anyone to conduct a search in violation of the essential principle of English liberty that a peaceable man’s house is his castle.” As Otis noted:

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

To our detriment, we have now come full circle, returning to a time before the American Revolution when government agents—with the blessing of the courts—could force their way into a citizen’s home, with seemingly little concern for lives lost and property damaged in the process.

Actually, as I make clear in my book Battlefield America: The War on the American People, we may be worse off today than our colonial ancestors when one considers the extent to which courts have sanctioned the use of no-knock raids by police SWAT teams (occurring at a rate of 70,000 to 80,000 a year and growing); the arsenal of lethal weapons available to local police agencies; the ease with which courts now dispense search warrants based often on little more than a suspicion of wrongdoing; and the inability of police to distinguish between reasonable suspicion and the higher standard of probable cause, the latter of which is required by the Constitution before any government official can search an individual or his property.

Winston Churchill once declared that “democracy means that if the doorbell rings in the early hours, it is likely to be the milkman.”

Clearly, we don’t live in a democracy.

No, in the American police state, when you find yourself woken in the early hours by someone pounding on your door, smashing through your door, terrorizing your family, killing your pets, and shooting you if you dare to resist in any way, you don’t need to worry that it might be burglars out to rob and kill you: it’s just the police.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at http://www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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Michigan Supreme Court hears oral arguments in ‘knock and talk’ marijuana butter case

LANSING, Mich. — The Michigan Supreme Court justices heard arguments Thursday as to whether the Fourth Amendment, or search and seizure, rights of two former Kent County jail deputies were violated. Investigators seized marijuana butter which led to a string of drug charges including marijuana possession, delivery, and maintaining a drug house. One sergeant charged took his life before sentencing.

Todd Van Doorne and Michael Frederick, former Kent County jail deputies of up to 23 years, listened to their attorneys fight the knock and talk procedure that seven deputies, including two of their bosses, used back in March 2014. Major underlying questions in this case remain: were their constitutional rights violated, and could they have said ‘no’ to their superiors asking them to talk on their doorsteps early that morning?

Ultimately this case has wide implications. If the Michigan Supreme Court decides to take on Van Doorne and Frederick’s cases, it could determine the future of knock and talk policing policy. It would essentially determine when police can come to your home and ask to talk without a warrant; do they have to knock only during waking hours?

March 2014 seven Kent County deputies, including two superiors, went to four former Kent County sergeant and deputies’ homes early in the morning asking to talk without a warrant. Dressed in tactical gear with police lights on, they reached Frederick’s home at 4 a.m. and Van Doorne’s at 5:30 a.m. with each family, including children, asleep.

Thursday morning Michigan Supreme Court Justice Robert Young, Jr. asked the prosecutor:

“Do you really contend that having seven armed and vested officers arrive at your home at 4a.m. is a normative thing we customarily expect, and pound on your door five minutes, is that your argument?”

To which the prosecutor corrected stating there were two then four deputies at each door respectively and “Normative for somebody to do that all the time? No.”

Justice Young interjected: “Ever! Except in an emergency. What neighborhood do you live in?”

The prosecution argued this knock and talk was valid in part because, “Law enforcement cannot be that handicapped to only be allowed to go to a door the same time a girl scout would go to the door.”

“It’s clear they were following from house to house to house, following lead to lead to lead. I don’t think it’s any different whether it be information about the drugs or robbery or whatever comes at 1 o’clock in afternoon or 1 o’clock in the morning,” the prosecutor added.

Kent County Undersheriff Michelle LaJoye-Young also told FOX 17 Thursday she stands by the actions of her team in March 2014 stating investigators must work the case when it is active. She added that Van Doorne and Frederick “were absolutely not coerced [into talking], they could have said no.”

The defense argues without a warrant police cannot come to your door to talk outside of normal waking hours citing the classic Girl Scout selling cookies example.

“This is a classic example of how not to do a knock and talk: you don’t go with seven officers, who are armed, at 4 in the morning or 5:30 in the morning,” said Bruce Block, defense attorney representing Todd Van Doorne. “Time is not irrelevant. Time matters.”

Another question repeatedly addressed Thursday: again, could Van Doorne and Frederick have said ‘no’ to their bosses, asking them for information early in the morning on their doorsteps? Is their consent that morning valid?

Michigan Supreme Court Justice Richard Bernstein asked the prosecutor the following:

“Let’s go to our scenario here which is our case: It’s 4 in the morning, there’s headlights that are shining into your house; there’s a number of different officers that are now on the premises; they’re wearing tactical gear; they have weapons; and they approach your front door. Do you think that the ordinary citizen in that situation feels that they have an obligation to comply?”

The justices could decide to take the two cases on and issue an opinion any time now through the end of this summer. Or, they could defer to the state’s Court of Appeal’s decision which upheld this knock and talk as constitutional.

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Appeals Court: Officer Who Shot and Killed Innocent Man in His Own Home Cannot Be Sued

 

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A law enforcement officer shot an innocent man to death in his own home without a warrant or any reasonable suspicion that he had committed a crime. And thanks to Thursday’s ruling, he cannot be sued.

Frederic J. Brown/AFP/Getty Images

Andrew Scott and his girlfriend were playing video games in their Florida apartment late at night when they heard a loud banging at the front door. Scott, who was understandably disturbed, retrieved the handgun that he lawfully owned, then opened the door with the gun pointed safely down. Outside, he saw a shadowy figure holding a pistol. He began to retreat inside and close the door when the figure fired six shots without warning, three of which hit Scott, killing him. Scott hadn’t fired a single bullet or even lifted his firearm.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The figure outside was Deputy Richard Sylvester. He failed to identify himself as a law enforcement officer at any point. He had no warrant and no reason to suspect that Scott or his girlfriend had committed a crime. He did not attempt to engage with Scott at all after he opened the door; he simply shot him dead. And on Thursday, the U.S. Court of Appeals for the 11th Circuit held that Scott’s parents and girlfriend cannot sue Sylvester because the officer’s conduct was not “clearly” illegal.

The court’s reasoning? Qualified immunity, a constitutionally dubious doctrine that bars individuals from suing the government for violating their rights unless those rights were “clearly established.” And what, exactly, constitutes a “clearly established” right? It’s almost always possible to argue the point either way. Consider the events that led up to Scott’s killing. Sylvester had been pursuing a speeding motorcyclist who, he suspected, might be the same motorcyclist who’d recently committed armed assault and battery. (He had no legitimate reason to suspect this particular motorcyclist was the suspect in question.) Sylvester found a motorcycle at Scott’s apartment complex and decided it was the one he was looking for, even though a license plate search revealed no incriminating information. He and three other officers drew their guns and pounded on Scott’s door. When Scott opened it, Sylvester shot and killed him.

A district court granted Sylvester qualified immunity, holding that no “clearly established law” prohibited his actions. A panel of judges for the 11th Circuit affirmed. And on Thursday, the 11th Circuit, sitting en banc, declined to revisit the panel’s decision. In support of this refusal to rehear the case, Judge Frank M. Hull wrote that Sylvester’s behavior was a variation on “the knock and talk rule.” This rule allows officers to enter private property and knock on an individual’s door for “legitimate police purposes.” Hull reasoned that Sylvester had merely engaged in a form of “knock and talk” and that Scott could have simply declined to open his door. Shooting Scott once he did open the door, Hull wrote, did not violate any “clearly established … constitutional rights.”

In dissent, Judge Beverly Martin shattered this sophistry with painful precision. “Under no standard,” she wrote, “was it reasonable for the police to kill Mr. Scott when he answered the knock at the door to his home. He was not suspected of any crime (much less a violent crime) and he was standing inside his own house without threatening them.” The police, she explained “were not engaged in a permissible ‘knock and talk’ when they killed Mr. Scott.” In fact, “there was no talk here. This was a knock and shoot.” Sylvester had no warrant and no reasonable suspicion that Scott had committed a crime. Martin thus concluded that he clearly violated Scott’s Fourth Amendment rights by conducting a warrantless raid and using excessive force.

The most fascinating part of Martin’s analysis centered around Sylvester’s insistence that the shooting was justified because Scott opened the door while holding a firearm. This “conclusion that deadly force was reasonable here,” Martin noted, “plainly infringes on the Second Amendment right to ‘keep and bear arms.’ ” Citing the Supreme Court’s decision in D.C. v. Heller, which affirmed an individual right to handgun ownership under the Second Amendment, Martin wrote:

If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

That seems exactly right to me—and it raises an important point: The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.

Qualified immunity has clearly become a significant problem in the lower courts. Just last week, another federal appeals court ruled that a homeless man had no right to sue the police officer who allowed his dog to maul him despite knowing the mauling victim was innocent. Its rationale? Qualified immunity. The lower courts are stretching the doctrine past its breaking point. Soon, victims of police violence will almost never be able to sue the officers who violate their constitutional rights. If that’s where we’re headed, why even pretend that we hold those rights in the first place?