He writes:
Jonah,
The problem with yesterday’s ruling is that it provides no sanction for police who violate the law requiring them to announce themselves — something I would hope would be of concern to conservatives. Scalia basically said, “knock-and-announce is still law, but we’re not going to enforce it.” The majority tried to say civilians on the other end of an illegal no-knock could always sue, but even the state of Michigan acknowledged in its brief that it couldn’t find a single time when any such suit has been successful.
With no real sanction, then, every raid potentially becomes a no-knock raid. Given that these raids are often conducted based on little more than tips from shady confidential informants, the potential for mistakes is considerable. That’s frightening, given that the stakes associated with breaking down someone’s door in the middle of the night couldn’t be higher (see the Cory Maye case, for one example. Or the case of Cheryl Lynn Noel for another). If police mistakenly break down the wrong door, and a homeowner shoots and kills a cop after mistaking him for a criminal intruder, who’s at fault?
What’s worse, according to my research, prosecutors tend to give police who mistakenly shoot someone in a “wrong door” raid extraordinary leeway. The theory is that the conditions are perilous, the stakes are high, and it’s entirely reasonable for a cop to mistake a remote control, a blue cup, or the glint off a wristwatch for a gun (there are cases of police shooting suspects after making all three mistakes). Fair enough. But prosecutors aren’t nearly as lenient when the *victims* of mistaken raids shoot cops they have understandably mistaken for criminal intruders. From my research, raidees in such cases have about a 1 in 2 chance of doing jail time. The disparity grows more absurd when you consider that (1) police have training, suspects don’t, (2) police have the advantage of knowing what’s about to take place, suspects don’t, (3) these raids are generally conducted late at night or very early in the morning, for the express purpose of catching a suspect off-guard — but which also means they’re catching him at a time when he’s least cogent and aware of what’s going on around him, and (4) police also sometimes deploy flash grenades, devices that *by design* are meant to confuse and bewilder everyone inside.