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Cops Or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police Dimitri Epstein

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Cops Or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police Dimitri Epstein Georgia State University Law Review Volume 26 Article 5 Issue 2 Winter 2009 March 2012 Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police Dimitri Epstein Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr Part of the Law Commons Recommended Citation Dimitri Epstein, Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police, 26 Ga. St. U. L. Rev. (2012). Available at: https://readingroom.law.gsu.edu/gsulr/vol26/iss2/5 This Article is brought to you for free and open access by the Publications at Reading Room. It has been accepted for inclusion in Georgia State University Law Review by an authorized editor of Reading Room. For more information, please contact [email protected]. Epstein: Cops or Robbers? How Georgia's Defense of Habitation Statute App COPS OR ROBBERS? HOW GEORGIA'S DEFENSE OF HABITATION STATUTE APPLIES TO NO­NO- KNOCK RAIDS BY POLICE Dimitri Epstein*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.team.' 1 The police used a "no­"no- knock" search warrant to break into Johnston's home unannounced.22 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.33 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.fata1.44 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, CounCourt Focuses on Botched Raid, Death, ATLANTA J.-CONST., May 5, 2008, at Bl,BI, 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 SC.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.LA. 3. Brenda Goodman, Police Kill Woman, 92, in Shootout at Her Home, N.Y. TIMES, Nov. 23, 2006, available at http://www.nytimes.coml2006/11123/usl23atlanta.html.http://www.nytimes.com/2006/l l/23/us/23atlanta.html. 4. Walter Putnam, Newsmaker-Prison Time forfor Botched Raid, MEMPIDSMEMPHIS 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 Cl, 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 justifyjustify 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. 585 Published by Reading Room, 2010 1 HeinOnline -- 26 Ga. St. U. L. Rev. 585 2009-2010 Georgia State University Law Review, Vol. 26, Iss. 2 [2010], Art. 5 586 GEORGIAGEORGIA STATESTATE UNIVERSITYUNIVERSITY LAWLAW REVIEWREVIEW [Vol.[Vol. 26:2 havehave a right to shootshoot atat the police officers whowho brokebroke through her doordoor lookinglooking forfor drugs? WouldWould she havehave beenbeen guilty ofof murdermurder and possibly sentenced toto deathdeath if her shot had actually hit and killed a police officer?officer? AlthoughAlthough thethe lawlaw isis far from clear, inin reality "when"when it's a cop who getsgets shot,shot, thethe privateprivate citizencitizen nearly always winds up inin jail.,,6jail."6 TakeTake thethe story of Cory Maye, for example. Late one night inin 2001, Maye "awoke"awoke toto a furious pounding onon his front door.,,7door."7 Afraid forfor his and his daughter's safety, Maye rushed to the bedroom where his daughterdaughter slept, retrieved a gun he kept forfor self-defense, and laylay down on the floorfloor hoping the intrudersintruders 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 toto be police executing a no-knock warrant, and one of Maye's bullets hit an officer in the stomach, killing him.him.1O10 Maye was convicted of capital murder, sentenced to death, and put on death row in a Mississippi prison.pnson.• 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 thethe officers. 1122 The police responded 1 3 with an overwhelming hail of gunfire. I3 Ingle was shot five times,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 inin the Dark, ARK. TIMES, Apr. 24,24, 2008,2008, at 10, available at 2008 WLNR 9499620. 7.7. Radley Balko, Railroaded onto Death Row?, FoxNEWS.CoM,FOxNEWS.COM, Feb. 15,IS, 2006, para. 4, http://www.foxnews.com/story/0,2933,184992,00.html.http://www.foxnews.com/story/0.2933.184992.OO.html. 8.8. Id. 9.9. Id.Id. 10. Id. 11.II. Id;Id.; seesee alsoalso Radley Balko, Drug War Casualties LeftLeft Behind, ATLANTAATLANTAJ.-CONST., J.-CONST., Oct. 6, 2006, available at 20062006 WLNR 17303525.17303525. Cory Maye was taken off death death rowrow after being given a hearing onon aa post-trial motion, butbut was re-sentenced toto life imprisonmentimprisonment withoutwithout parole.parole. Id.;Id; RegionRegion Briefs: ManMan Re-SentencedRe-Sentencedforfor Police Killing, SUNsUN HERALD (Biloxi,(Biloxi, Miss.), Nov. 4, 2007, atat A16,AI6, available at 20072007 WLNRWLNR 21819106.21819106. InIn November 2009,2009, thethe MississippiMississippi CourtCourt ofof Appeals granted Maye aa newnew trial basedbased onon aa change-of-venuechange-of-venue error.error. MayeMaye v.v. State, No. 2007-KA-02147-COA,2007-KA-02147-COA, 2009 WLWL 3823287, atat *8*8 (Miss.(Miss. Ct.Ct. App.App. Nov. 17,17,2009); 2009); RetrialRetrial Ordered inin Officer'sOfficer's Killing, CLARION-LEDGER (Jackson,(Jackson, Miss.), Nov.Nov. 18,18, 2009,2009, atat B 1,I, availableavailable atat 20092009 WLNR 23254398.23254398. 12.12. SeeSee Koon,Koon, suprasupra notenote 6.6. 13. Id.Id. https://readingroom.law.gsu.edu/gsulr/vol26/iss2/5 2 HeinOnline -- 26 Ga. St. U. L. Rev. 586 2009-2010 Epstein: Cops or Robbers? How Georgia's Defense of Habitation Statute App 201012010) COPS OR ROBBERS? 587 tendon."tendon.,,1414 ThoughThough Ingle did not hurt any of the officers,officers, he waswas charged with, among other things,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)illegal) police raids that have resulted inin serious humiliation, injury,InJury, or death toto innocent bystanders, non-violent offenders, and officers. 1717 Moreover, according to criminologist Peter Kraska, the number of no-knock raids across the country jumpedjumped from 3,000 in 1981 to more thanthan 50,000 in 2006.182006. 18 With the deterioration of the "knock-and-"knock-and­ announce" requirement, as described below, such no-knock raids are 19 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. 2o In 2001, Georgia amended its defense of habitation statute toto 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 IS,15, Apr. 15, 2009, http://www.wxvt.com/Global/story.asp?S=10191222&nav=menu1344_2.http://www.wxvt.comlGlobal/story.asp?S= 10 191222&nav=rnenu 1344_2. For more information and discussion on topic, see Posting of Tiffney Forrester to Arkansas Blog, NLR Cops See Vindication Update, http://www.arktimes.com/blogs/arkansasblog/2009/04/nlr-cops-see-vindication.aspxhttp://www.arktimes.comlblogs/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; fifteenfifteen cases where thethe police got the right address but innocent bystanders were killed or injured, id. at 63-68; nine cases of death or injury toto police officers, id. at 68-71; twenty-three cases where police used their tactics "unnecessarily andand recklessly" on non-violent offenders, id. at 71- 79; and ten cases of similar police recklessness that "defy easy categorization," id.id at 79-82.
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