Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-knock Raids by Police
| Publication year | 2010 |
Georgia State University Law Review
Article 5
3-21-2012
Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police
Dimitri Epstein
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Recommended Citation
Epstein, Dimitri (2009) "Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police," Georgia State University Law Review: Vol. 26: Iss. 2, Article 5. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss2/5
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COPS OR ROBBERS? HOW GEORGIA'S DEFENSE OF HABITATION STATUTE APPLIES TO NO-KNOCK RAIDS BY POLICE
Dimitri Epstein*
Introduction
Late in the fall of 2006, the city of Atlanta exploded in outrage when Kathryn Johnston, a ninety-two-year old woman, died in a shoot-out with a police narcotics team.1 The police used a "no-knock" search warrant to break into Johnston's home unannounced. Unfortunately for everyone involved, Ms. Johnston kept an old revolver for self defense—not a bad strategy in a neighborhood with a thriving drug trade and where another elderly woman was recently raped.3 Probably thinking she was being robbed, Johnston managed to fire once before the police overwhelmed her with a "volley of thirty-nine" shots, five or six of which proved fatal.4 The raid and its aftermath appalled the nation, especially when a federal investigation exposed the lies and corruption leading to the incident.5 But buried beneath all the blatant misconduct lies an interesting legal question. Assuming that the no-knock warrant was valid, did Ms. Johnston
* J.D. Candidate, 2010, Georgia State University College of Law. Thanks to Professor Russell Covey, Mr. Doug Ramseur, and the Law Review editors for their valuable suggestions and insight. Any deficiencies are the author's own.
1. Steve Visser, Court Focuses on Botched Raid, Death, atlanta J.-const., May 5, 2008, at Bl, available at 2008 WLNR 8347479; see also Patrik Jonsson, After Atlanta Raid Tragedy, New Scrutiny of Police Tactics: Police Are Reviewing Their Use of "No-Knock" Warrants After an Octogenarian Was Killed After Officers Burst into Her Home, christian SCI. monitor, Nov. 29, 2006, at 3, available at 2006 WLNR 20583600.
2. Jonsson, supra note 1. A no-knock warrant allows the police to enter a suspect's home without knocking or otherwise announcing themselves. See discussion infra Part I.A.
3. Brenda Goodman, Police Kill Woman, 92, in Shootout at Her Home, N.Y. times, Nov. 23, 2006, available at http://www.nytimes.eom/2006/l l/23/us/23atlanta.html.
4. Walter Putnam, Newsmaker—Prison Time for Botched Raid, memphis com. appeal (Tenn.), May 23,2008, at A2, available at 2008 WLNR 9804037.
5. Bill Rankin, Plea in Botched Raid Ends Feds' Case, atlanta J.-const., Oct. 31, 2008, at CI, available at 2008 WLNR 20770526. The police lied to the judge to obtain a no-knock warrant and then planted drugs in Johnston's house to justify the raid. Visser, supra note 1; see also Bill Torpy, Senseless Killing Still Casts Shadow on Police, atlanta J.-const., Nov. 9, 2008, at D3, available at 2008 WLNR 21418601.
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have a right to shoot at the police officers who broke through her door looking for drugs? Would she have been guilty of murder and possibly sentenced to death if her shot had actually hit and killed a police officer?
Although the law is far from clear, in reality "when it's a cop who gets shot, the private citizen nearly always winds up in jail."6 Take the story of Cory Maye, for example. Late one night in 2001, Maye "awoke to a furious pounding on his front door." Afraid for his and his daughter's safety, Maye rushed to the bedroom where his daughter slept, retrieved a gun he kept for self-defense, and lay down on the floor hoping the intruders would go away.8 When a figure burst through the bedroom door, Maye fired three times out of fright.9 Unfortunately for Maye, the intruders turned out to be police executing a no-knock warrant, and one of Maye's bullets hit an officer in the stomach, killing him.10 Maye was convicted of capital murder, sentenced to death, and put on death row in a Mississippi prison.11
In another case, an Arkansas SWAT team stormed the house of Tracy Ingle, who, thinking that robbers were invading his home, waved a non-functioning pistol at the officers. The police responded with an overwhelming hail of gunfire. Ingle was shot five times, with one bullet destroying his femur and leaving his leg "dangling from his body, connected only by a bloody mess of meat, skin[,] and
6. Statement by Radley Balko quoted by David Koon, Shot in the Dark, ARK. Times, Apr. 24, 2008, at 10, available at 2008 WLNR 9499620.
7. Radley Balko, Railroaded onto Death Row?, FoxNEWS.com, Feb. 15, 2006, para. 4, http://www.foxnews.com/story/0^933,184992,00.html.
8. Id.
9. Id.
10. Id.
11. Id; see also Radley Balko, Drug War Casualties Left Behind, ATLANTA J.-CONST., Oct. 6, 2006, available at 2006 WLNR 17303525. Cory Maye was taken off death row after being given a hearing on a post-trial motion, but was re-sentenced to life imprisonment without parole. Id.; Region Briefs: Man Re-Sentenced for Police Killing, SUN HERALD (Biloxi, Miss.), Nov. 4, 2007, at A16, available at 2007 WLNR 21819106. In November 2009, the Mississippi Court of Appeals granted Maye a new trial based on a change-of-venue error. Maye v. State, No. 2007-KA-02147-COA, 2009 WL 3823287, at *8 (Miss. Ct. App. Nov. 17, 2009); Retrial Ordered in Officer's Killing, CLARION-LEDGER (Jackson, Miss.), Nov. 18, 2009, at B1, available at 2009 WLNR 23254398.
12. See Koon, supra note 6.
13. Id.
2010] COPS OR ROBBERS? 587
tendon."14 Though Ingle did not hurt any of the officers, he was charged with, among other things, two felony counts of aggravated assault.15
The two cases outlined above are not isolated incidents.16 Radley Balko, a policy analyst for the Cato Institute, has profiled more than 130 cases of flawed (but not necessarily illegal) police raids that have resulted in serious humiliation, injury, or death to innocent bystanders, non-violent offenders, and officers. Moreover, according to criminologist Peter Kraska, the number of no-knock raids across the country jumped from 3,000 in 1981 to more than 50,000 in 2006.18 With the deterioration of the "knock-and-announce" requirement, as described below, such no-knock raids are bound to increase.19
At the same time, many states, including Georgia, have liberalized their self-defense statutes, providing private citizens with broad leeway in using deadly force to repel an attack, especially upon their homes. In 2001, Georgia amended its defense of habitation statute to allow for broader immunity for someone who uses deadly force
14. Id.
15. Id. In 2009, Ingle was convicted on all counts, including drug charges, and sentenced to eighteen years in prison. Associated Press, Jury Convicts After No-Knock Police Search, WXVT 15, Apr. 15, 2009, http://www.wxvt.com/Global/story.asp?S=10191222&nav=menul344_2. For more information and discussion on topic, see Posting of Tiffney Forrester to Arkansas Blog, NLR Cops See Vindication Update, http://vvww.arktimes.com/blogs/arkansasblog/2009/04/nlr_cops_see_vindication.aspx (Apr. 16, 2009); see also Justice for Tracy, http://www.justicefortracy.com (last visited Feb. 6,2010).
16. Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America 43 (Cato Institute 2006).
17. Id. at 43-82. Specifically, Balko profiles seventy-four cases where the police got the wrong address, id. at 43-63; fifteen cases where the police got the right address but innocent bystanders were killed or injured, id. at 63-68; nine cases of death or injury to police officers, id. at 68-71; twenty-three cases where police used their tactics "unnecessarily and recklessly" on non-violent offenders, id. at 7179; and ten cases of similar police recklessness that "defy easy categorization," id. at 79-82. For an interactive map of botched police raids, see Cato Institute, Botched Paramilitary Police Raids: An Epidemic of "Isolated Incidents," http://www.cato.org/raidmap (last visited Feb. 6,2010).
18. Jonsson, supra note 1; Harry R. Weber, 2 Officers Admit Crimes in Raid—Woman, 92, Slain in Botched 'No-Knock,' memphis COM. appeal (Tenn.), Apr. 27, 2007, at A7, available at 2007 WLNR 8005661.
19. Jonsson, supra note 1; see also discussion supra Part LA.
20. P. Luevonda Ross, The Transmogrification of Self-Defense by National Rifle Association-Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. REV. 1, 2, 18(2007).
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against a perceived intruder. According to Balko, this trend toward private self-defense is "dangerously at odds with the concept of no-knock search warrants." As Justice Brennan acknowledged in Ker v. California, police "might be mistaken for prowlers and be shot down by a fearful householder."
Though botched police raids, such as Johnston's, are certainly a problem, most officers are law-abiding professionals who would do their best to avoid hurting harmless civilians.24 Yet with the decline of the knock-and-announce rule, it is easier than ever for police to legally enter a home unannounced. This Note examines whether, under Georgia's defense of habitation statute, a home dweller can lawfully shoot at, and possibly kill, police officers executing a legal no-knock raid. Part I provides a brief overview of the decaying knock-and-announce doctrine and introduces Georgia's defense of habitation statute.26 Part II first delves into the text of the...
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