Last week, Jacob Sullum and I were in Atlanta for an ACLU conference on the use of drug informants. The same day of the conference, a committee in the Georgia state senate unanimously passed a bill that its sponsors claim will rein in the abuse of no-knock warrants in the state (I cautiously welcomed the bill here ).
The night the bill was passed, I spoke with its sponsor, Sen. Vincent Fort. The good news is, Sen. Fort is genuinely committed to wiping out the use of no-knock raids, save for cases where the suspect poses an imminent threat to the community (think fugitives, hostage takings, etc.). In fact (self promotion alert) he plans to order a copy of my Overkill paper for every member of the Georgia legislature before the bill comes to a vote.
The bad news is, the bill was amended and watered down to the point that in its current form it won't do much at all to end the excesses associated with forced entry raids. In fact, had the bill been in place last year, it's unlikely that it would have prevented the Kathryn Johnston raid, which is the reason it was introduced and passed in the first place.
There are several problems with the bill, including:
· The bill only covers no-knock warrants. The problem is, the differences between a no-knock and a knock-and-announce warrant are virtually nil. In fact, the very night I talked with Sen. Fort, I also spoke to a former police officer, prosecutor, and now defense attorney in Texas. Like every police officer with whom I've spoken candidly about this issue, he confirmed the fact that the required "announcement" the police typically give in these raids is merely a ritual. Sometimes it's made as the door is coming down. It's often made while the suspect is sleeping. From the perspective of the people inside the home—people like Kathryn Johnston, for whom it would have made a huge difference to know if the people outside were cops or criminals—there's no difference at all between "no-knock" and "knock-and-announce." Remember, the police claim they did knock and announce before entering Johnston's house (though just about everything these particular cops say at this point is suspect).
A better bill would cover all forced-entry, paramilitary-style raids, not just no-knocks.
· Even with respect to no-knocks, the bill is far too vague. While it does require that police show "probable cause" of a suspect's threat to public safety in order to secure a no-knock, that really only brings Georgia in line with the rest of the country, where there are still routine abuses. Fort's original bill demanded the more stringent "clear and convincing evidence" standard. Fort tells me his lawyers tell him that a police officer need only show evidence that a suspect might have a gun in the home to get a no-knock under the new bill. That almost certainly means the officers in the Johnston case would have gotten their warrant under the new law, where they alleged both guns and a video surveillance system.
· The new law also grants an exception in cases where police can show probable cause that a suspect might dispose of drug evidence if police were to knock and announce themselves. Between this and the public safety component, this bill is really no more stringent than the vast majority of no-knock requirements in the rest of the country. Ironically, this exception makes it easier to obtain no-knock warrants against small-time drug offenders (those with a stash small enough to be flushed in a matter of seconds) than big-time dealers (whose stash is too large to be easily disposed of). A more sensible law would acknowledge that if a suspect has a small enough supply of dope to be flushed in the seconds between announcement and entry, you probably aren't dealing with the kind of dangerous criminal worthy of a violent forced-entry raid in the first place.
Bottom line? This bill is a tough-sounding piece of legislation that will really make no difference whatsoever in how Georgia police obtain warrants for and execute paramilitary-style raids. It almost certainly wouldn't have prevented the Johnston raid. There's no language in it to reform the deeply flawed drug informant system that allowed the Johnston raid to happen; to provide for oversight of the cops, judges, and prosecutors that have been lax in applying for and approving these warrants all over Atlanta; or to restrict invasive police raids to situations where they're ameliorating violence instead of creating it.
Give points to Sen. Fort for his effort, and for his success in bringing Georgia Republicans on board at least in talking about the right to be secure in one's home. But this bill is lots of bark, and very little bite.
If Georgia lawmakers are going to pass legislation in response to the Johnston raid, they should at least pass reforms that would have prevented the woman's death in the first place.