LEXINGTON, Ky. (Nov. 30, 2021) – A Fayette County judge has dismissed a lawsuit filed by a local police union attempting to block a ban on no-nock warrants passed by the Lexington Fayette Urban County Council earlier this year.

The city ordinance bans the use of “no-knock” warrants and creates a set of standards police must follow when exercising search/arrest warrants. Law enforcement officers serving warrants in the city are now required to knock on the door and clearly and loudly announce their presence – waiting at least 15 seconds before entering premises. They must also wear body cameras during the execution of the warrant.

The Lexington Fayette Urban County Council passed the ordinance by a 10-5 vote last June.

Fraternal Order of Police Bluegrass Lodge #4 filed suit in an attempt to strike down the ordinance. The lawsuit alleges the ordinance violates the city’s collective bargaining agreement with police officers. According to the suit, officers have a right to bargain when it comes to changes in police department policy. The suit also claimed the ban on no-knock warrants could jeopardize the health and safety of officers and that a state law passed this year that limits but doesn’t ban no-knock warrants supersedes the county ordinance. The union’s attorneys argued it is mandatory to collectively bargain any issues relating to officer health and safety.

On Nov. 19, Fayette Circuit Judge Kimberly Bunnell held that elected officials have the power to enact public policy without an agreement with the police union.

“Whether or not I agree with the entirety of the ordinance doesn’t matter, but in terms of what comes under the collective bargaining agreement … I think that our elected officials have acted within their authority and I don’t think they’re required to do anything else,” she said during the hearing.

The FOP lodge president said the union may appeal the decision. Jeremy Russell told the Herald-Leader the union “respectfully disagrees with Judge Bunnell’s analysis and opinion.” “Our lodge strongly believes that the no-knock ban, regardless of the known danger, creates an unnecessary risk of serious bodily harm or death to our members and members of this community,” he said. “It remains our position that this is a mandatory subject for collective bargaining.”

Police unions and lobbyists almost always appeal to “officer safety” when battling policies that restrict their power and violate the rights of individuals in the community.

No-Knock Warrants

Police claim they need “no-knock” warrants to pursue murderers and violent criminals. But, this rarely seems to be the case. In reality, no-knock warrants are a tool that law enforcement used to beef up the war on drugs in the 1980s, and cops have continued to use them mainly for that purpose ever since.

Local ordinances like the one passed in Lexington take a big step toward effectively nullifying and making irrelevant several Supreme Court opinions that give police across the U.S. legal cover for conducting no-knock raids.

In the 1995 case Wilson v. Arkansas, the Supreme Court established that police must peacefully knock, announce their presence, and allow time for the occupants to open the door before entering a home to serve a warrant. But the Court allowed for “exigent circumstance” exceptions if police fear violence, if the suspect is a flight risk, or if officers fear the suspect will destroy evidence.

As journalist Radley Balko notes, police utilized this exception to the fullest extent, “simply declaring in search warrant affidavits that all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.”

The SCOTUS eliminated this blanket exception in Richards v. Wisconsin  (1997) requiring police to show why a specific individual is a threat to dispose of evidence, commit an act of violence or flee from police. But even with the opinion, the bar for obtaining a no-knock warrant remains low.

“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” [Emphasis added]

Reasonable suspicion is an extremely low legal bar to meet. Through this exception, police can justify no-knock entry on any warrant application. In effect, the parameters in the SCOTUS ruling make no-knock the norm instead of the exception.

A third Supreme Court ruling effectively eliminated the consequences for violating the “knock and announce” requirement even without a no-knock warrant. In Hudson v. Michigan (2006), the High Court held that evidence seized in violation of knock and announce was not subject to the exclusionary rule. In other words, police could still use the evidence in court even though they technically gathered it illegally.

Significantly, were it not for the dubious “incorporation doctrine” made up by the Supreme Court based on the 14th Amendment that purportedly empowers the federal government to apply the Bill of Rights to the states, these cases would have never gone to federal court and we wouldn’t have these blanket rules.

Without specific restrictions from the state, police officers generally operate within the parameters set by the High Court. By passing restrictions on no-knock warrants, states set standards that go beyond the Supreme Court limits and in effect, nullify the SCOTUS opinion.

Mike Maharrey

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