‘Breonna’s Law’ wouldn’t do enough to stop future tragedies

The “Justice for Breonna Taylor Act” was introduced on March 11 by Sen. Rand Paul (R-Ky.) and Sen. Cory Booker (D-N.J.), joined by Rep. Morgan McGarvey (D-Ky.). The legislation — named in honor of Breonna Taylor, the 26-year-old Black woman who was shot and killed by police in Louisville, Kentucky executing a search warrant on her apartment in March 2020 — would prohibit any federal law enforcement agent from executing a warrant “until after the officer provides notice of his or her authority and purpose.” The legislation also prohibits any state or local law enforcement agency that receives funds from the Department of Justice from executing “a warrant that does not require the … officer serving the warrant to provide notice of his or her authority and purpose before forcibly entering a premise.”

Knocking and announcing is something police are already required to do under the Fourth Amendment, although they need not do so if they have a reasonable suspicion that knocking and announcing would be dangerous or futile. In Taylor’s case, police requested a “no-knock” warrant, which authorizes police to enter a residence without knocking and announcing prior to entry. The judicial officer who issued the search warrant appears to have approved that request, but, at the last minute, the officers executing the warrant were told by a supervisor to knock and announce prior to entering the apartment.

The officers assert that they knocked and shouted “police” several times prior to entering Taylor’s apartment. Kenneth Walker, Taylor’s boyfriend who was with her that night, acknowledged that he and Taylor were awoken by loud banging on the door but said that when he called out, “Who’s there?”, he did not hear a response. Not realizing that the individuals banging on the door were police officers, Walker, a licensed gun owner, grabbed his gun and aimed it at the front door. When two plainclothes officers broke down the front door, Walker fired one shot, which hit one of those officers in the leg. The officers returned fire. In the hail of bullets, Breonna Taylor was shot multiple times and killed.

“Justice for Breonna” has become a rallying cry for those seeking racial justice and police reform. In response, many states and municipalities have passed laws either partially or completely banning no-knock warrants. A ban on no-knock entries, however, may not accomplish this goal of preventing future deaths for two reasons.

First, there may not be that much difference between a no-knock entry and an entry where police do knock and announce. Even when police knock and announce their identity to execute a search warrant, the amount of time between the knock-and-announce and the entry may be brief and nonetheless satisfy the knock-notice requirement. In 2003, the Supreme Court unanimously held that waiting 15 to 20 seconds after knocking and announcing prior to entry satisfied the knock-notice rule, because prudent drug dealers will often keep their stash of drugs near a toilet so they can dispose of evidence quickly.

Second, many homeowners today own firearms. Even if police do knock and announce prior to entry, the homeowner may not hear the announcement — as may have occurred in the Taylor case — or the homeowner may think the people at the door are would-be robbers pretending to be police officers. If that homeowner comes to the door with a gun, the officers will think he or she poses an imminent deadly threat. And if, as occurred in the Taylor case, the homeowner shoots at the officers, those officers will likely shoot back to protect themselves.

Of course, police need to be as certain as possible that they are targeting individuals involved in criminal activity, not innocent civilians, before they break down the door to a home to execute a warrant and they should be in uniform, not plainclothes, as were the officers executing the search warrant on Taylor’s apartment. Nighttime raids should be done only when there are compelling reasons to believe a daytime entry would not enable the police to accomplish their objective, whether that is to arrest a person suspected of serious criminal activity or to secure evidence of a crime.

This legislation, however, does not require officers to be in uniform when they execute a warrant on a home, not does it limit nighttime raids. It merely requires officers to provide notice of their purpose and authority prior to executing a warrant.

The “Justice for Breonna Taylor Act” makes an important bipartisan statement that we need to do more to reduce the loss of human life when police execute warrants. It does not resolve the problem of the homeowner who grabs a firearm when police are banging on their front door. Given that the Supreme Court has ruled that individuals have a Second Amendment right to keep and bear arms in the home for self-protection, perhaps no legislation can resolve that problem.

Cynthia Lee is the Edward F. Howrey Professor of Law at the George Washington University Law School. She is the author of the forthcoming article, “Firearms and the Homeowner: Defending the Castle, the Curtilage, and Beyond,” which will be published in the Minnesota Law Review.