Police, The Fourth Amendment, Qualified Immunity

Bad failure to announce case

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Case: Kane v. Lewis, Court of Appeals, 4th Circuit 2015 (unpublished)

What happened: A jury found that police failed to knock and announce before breaking into an apartment to perform a search pursuant to a warrants. After the police were inside the apartment, they tried to break into one of the occupant’s bedrooms, but were unsuccessful. After this, the occupant allegedly came charging out of the bedroom, allegedly with a sheathed knife. After the occupant burst out of his bedroom, police in the apartment allegedly shouted that they were police, and allegedly shouted that they were police (police alleged that they also announced that they shouted that they were police before breaking in, but this was contradicted by neighbors in another unit of the apartment). After the occupant allegedly failed to drop the knife, police shot him twice in the head, killing him. Jury awarded $250,000 to the occupant’s friend based on the failure to knock and announce creating a dangerous situation where it was likely that the occupant would be killed.

Decision: Court decided that the occupant knew that it was police he was charging at because: (i) police allegedly announced their identity after plaintiff started to charge; and (ii) police were wearing shirts that said police. Appellate court reduced the $250,000 award down to an award of nominal damages.

Criticism: The occupant had to make a split second decision under rapidly evolving circumstances. He shouldn’t be expected to realize that it was actually policemen in his apartment in mid-charge at an intruder. In my opinion, the appellate court is engaging in some highly unfair “Monday morning quarterbacking” here.

Criticism: Court shouldn’t be crediting the interested testimony of how the police acted after they were in the apartment. Who knows whether police really did announce themselves after they burst in? Who knows whether the occupant heard them, but failed to believe they were police, alleged shouts of “police” and screen printed shirts bearing the word “police” notwithstanding? Who knows whether the slaughtered occupant really even charged with the sheathed knife? Dead men tell no tales. This is exactly the situation the knock and announce requirement was fashioned to protect against. The appellate court’s evidentiary credulity is especially egregious in this case because police were contradicted by neighbors, whom the jury apparently believed, about whether they announced before breaking in. The “sheathed knife” bit also seems pretty suspicious.


Dissent: Circuit Judge Pamela Harris wrote a good dissent pointing out that there are reasons to believe that the deceased occupant may well not have known that it was police in his apartment, and explaining the proper burdens of proof and persuasion which should have been legally applied in this case. From the dissent:

Those are precisely the circumstances — “tense, uncertain, and rapidly evolving” — under which we give police officers the benefit of the doubt when it comes to their perceptions. In evaluating the use of force by officers, we make allowances for the fact that such situations can be exceptionally confusing and fast-moving, with officers required to make split-second judgments under suboptimal conditions. In the context of a rapid-deployment and high-pressure nighttime raid, police officers cannot be held to “the 20/20 vision of hindsight,” and must instead be judged under a more forgiving standard.

Indeed, the Officers here argued as much to the jury, in defending against Kane’s claim for excessive force. According to the Officers, for instance, events in the apartment were so fast-moving and conditions for observation so poor that they could not discern — nor be expected to discern — that what Cornish [the deceased occupant] held in his hand was a knife in a sheath and not, as they thought at the time, an unsheathed knife, or perhaps a machete or a pipe. The jury apparently credited that account, and decided the excessive force claim against Kane. There is no reason I can think of that the same jury could not apply the same standard to Cornish — who, unlike the Officers, had the benefit of neither training nor advance warning when he found himself caught up in the tumult of a military-style nighttime raid — and assume that Cornish, too, would be unable to exercise the powers of careful discernment that could be expected under less fraught circumstances.

(citations omitted)

Written by Burgers Allday

March 23, 2015 at 5:53 am

Posted in Uncategorized

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