Introduction

In March, the Fifth Circuit Court of Appeals issued its decision in Bishop v. Arcuri,¹ a case brought pursuant to 28 U.S.C. § 1983 against the City of San Antonio and certain of its police officers.  What happened to the plaintiffs in Bishop is altogether familiar.  One night in April 2009, the plaintiffs—two women living outside San Antonio proper—were in their home, getting ready for bed.  Suddenly, without warning, a team of San Antonio police officers used a battering ram to break down the women’s front door.  One of the women was in a state of undress; the other was in the backyard.  Earlier that day, the officers had purportedly received a tip that methamphetamine was being sold from the prem­ises.  Following a search of the home, including a search by a drug-sniffing dog, the police determined that there were no drugs in the home, or indeed any other evidence of criminality.  The police made no arrests.²

The women brought claims against the officers alleging violations of the U.S. Constitution including, inter alia, violation of the Fourth Amendment, by virtue of the officers’ failure to knock and announce their presence before entering the premises.³  The two women also brought claims against the City of San Antonio, alleging that the no-knock search of their home resulted from the uncon­stitutional custom and practice of no-knock entries in connection with the execution of drug warrants.⁴  As alleged, the City had an unconstitutional practice of effecting forced entries without reasonable suspicion of exigent circum­stances, which is necessary for such entries under the law.⁵  Predictably, the defendants argued that the allegedly heightened risk of evidence destruction justified their no-knock entry of the women’s home.  The defendants claimed that the officers suspected small (that is, easily destroyable) amounts of drugs were being distributed from the premises and that a heightened risk of violence existed based on the purportedly unknown character of the occupants and the layout of the house.⁶  While the Magistrate Judge recommended denial of summary judgment for the officers and the City, the District Court granted the defendants’ motions on all counts and dismissed the case.⁷

I represented the plaintiffs as pro bono counsel on appeal, and argued the matter before the Fifth Circuit.⁸  At oral argument, a discussion was had whether any circumstances in fact existed that night suggesting a heightened risk of injury to the officers if they had knocked and announced their presence.⁹  Judge Stephen A. Higginson stumped me when he asked whether any dogs were present in the home at the time.  As Judge Higginson explained, the presence of a dog could, in theory, create the reasonable suspicion of a heightened risk of violence needed to justify a no-knock entry.  Admittedly, it had never occurred to me that this was even potentially an issue; neither party raised the issue of pets in briefing and the opinions below did not discuss it.  I told Judge Higginson that I did not know whether a dog was in the house.  Judge Higginson himself noted that he was “stretching the facts” with the question; he admitted that he was trying to suss out any possible basis for the presence of exigent circumstances.  On rebuttal, after my co-counsel helpfully pointed me to the right place in the record, I noted to Judge Higginson that there were indeed dogs of unknown breed in the women’s home.  Satisfied, the judges and I quickly moved on.¹⁰

After the argument and a well-deserved ribbing from my colleagues, the issue stuck in my mind.  Could the presence of a dog—a perfectly legal thing to keep in one’s home—really form the basis of the heightened risk of violence needed to justify a no-knock entry?  If so, wouldn’t almost any circumstance that presents some scintilla of risk to an officer’s physical safety justify a no-knock entry?  Perfectly legal kitchen cutlery, firecrackers, or pet snakes come to mind.  And if that really is the case, hasn’t knock-and-announce jurisprudence become a mockery?

These are interesting—and only partially flip—questions.  But there is a more serious issue lurking.  The suspected presence of a firearm in a subject premises often forms the basis for upholding no-knock entries.¹¹  In such circumstances, officers apply ex ante for a no-knock warrant or decide at the scene to effect a no-knock entry.  Later invalidation of the forced entry (either via suppression of evidence or in a later civil suit under § 1983 or Bivens¹²) is rare when officers can point to the reasonable suspicion of the presence of firearm(s) in the subject premises.  Often, those firearms are known to be illegally possessed by the individual(s) believed to be in the home.  Often, the officers have no idea how whether they are legally possessed.

This has become a serious and unanalyzed issue in knock-and-announce juris­pru­dence in the wake of District of Columbia v. Heller¹³ and McDonald v. City of Chicago.¹⁴  Those cases held that a person generally has a constitutional right to possess some kind of firearm in his or her home.¹⁵  Nevertheless, under current Fourth Amendment jurisprudence, the presence of a firearm can be a factor (poten­tially determinative) in permitting government officials to enter the premises without knocking and announcing their presence, as they are otherwise obligated to do under the Fourth Amendment.¹⁶  This Article considers this seeming conundrum, and offers initial suggestions about how courts should approach the issue.

I.          A Brief Knock-and-Announce Primer

The interests protected by the knock-and-announce rule “are not inconse­quential,”¹⁷ but rather “are central to the Fourth Amendment’s guarantees as explained in [U.S. Supreme Court] decisions and as understood since the beginnings of the Republic.”¹⁸  The contours of the rule are relatively simple.  “[T]he Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry.”¹⁹  Doing so provides the individuals inside the premises the “opportunity to comply with the law and to avoid the destruction of property occasioned by forcible entry” by peacea­bly opening the door and allowing the officers inside.²⁰  Officers must allow occupants a reasonable amount of time to respond to the announcement and open the door before effecting a forced entry; while this amount of time is not set as a matter of law, it is clear that it must be more than a few seconds—certainly more than five seconds, but likely less than half a minute.²¹

The rule also “protect[s] against intrusions occasioned by law enforcement officers’ mistakes” and allows residents to gather themselves before strangers come into their home.²²  Because “most search warrants are executed during the late night and early morning hours[, t]he brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed.”²³  Of course, there are exceptions to the general rule.  Even after officers knock and announce, circumstances may arise that allow forced entry before the legally mandated waiting time for a response has elapsed—for instance, noises or actions consistent with impending violence, occupant flight or evidence destruction.²⁴  Indeed, the Supreme Court has stated “[t]he knock and announce requirement could give way under circumstances presenting a threat of physical violence, or where police officers have reason to believe that evidence would likely be destroyed if advance notice were given.”²⁵

There are two basic ways officers can properly execute a no-knock entry—either by securing a no-knock warrant ex ante or by determining at the scene that exigent circumstances exist.²⁶  Either way, officers must have “a particular­ized basis for any suspicion that would justify a no-knock entry.”²⁷  While the Supreme Court described this showing as “not high,” it has emphasized that “the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.”²⁸

The kinds of circumstances that support a no-knock entry based on a heightened risk of violence vary greatly, but can include the criminal history of the individuals suspected to be present, the suspected crimes underlying the search, previous threats made to officers or witnesses, and the layout of the premises.²⁹  Often, the suspected presence of a firearm in the subject premises is the most salient circumstance suggesting a risk of violence, and thus justifying a no-knock entry.³⁰  This makes sense—the presence of a firearm could pose an immediate, lethal danger to officers upon entry.

Knock-and-announce jurisprudence does not account for the nature of a firearm that officers suspect to be in the subject premises.  Courts do not require police to inquire into the origin and legal status of a firearm, much less offer guid­ance as to what police must do with that information once they get it.  There appears to be no indication that police nationwide determine the pedigree of a sus­pected firearm when evaluating whether to effectuate a no-knock entry.

II.       Heller Changes the Landscape of Second
Amendment Rights—Sort of

Several hundred federal and state court opinions have applied or cited the Heller decision, and mountains of academic and popular literature have analyzed the various opinions of the justices.³¹  Although much of the scholarship and analysis on the case is important and worthwhile, this Article will not attempt to repeat that scholarship in the limited space available here.

One core aspect of Heller is important to consider.  The Supreme Court ruled in Heller that, in simplest measure, the Second Amendment protects an individual’s right to possess and carry operable firearms, subject to various “disqual­ifications” not immediately important here.³²  Importantly, the Court considered this right as it applies in the home:

The scholarship has recognized the centrality of the home not only to Heller’s hold­ing as it relates to the inability of the federal government and the states to bar possession of an operable firearm, but to the broader rationale underlying the consti­tu­tional right to possess a weapon—that the Constitution contemplates and affirmatively endorses an individual’s ability to possess a working firearm, spe­cifically for personal or familial protection.³⁴

Many scholars have argued that Heller and McDonald extend the right to carry a firearm outside the home.³⁵  Not all agree; in fact, many observers argue that the Court’s ruling in Heller does not, in fact, do much to change the landscape of gun restrictions in the U.S.³⁶  Whatever its short- and medium-term impact, though, it seems safe to say that Heller has the strongest impact on the law’s conception of individuals’ ability to lawfully possess a weapon within the home.

III.    The Conflict Between Heller and Knock-and-Announce Jurisprudence

The incongruity between the knock-and-announce rule and the rights recog­nized in Heller discussed in Part II is confusing.  Under current knock-and-announce jurisprudence, the suspected presence of a firearm in the targeted premises is likely to support a finding of exigent circumstances.  Thus, law enforcement officials can justify a no-knock entry in the face of articulable facts suggesting a heightened risk of violence, either by way of ex ante application for a no-knock warrant, or at the scene of the entry.  And yet, the Supreme Court in Heller held squarely that Americans have a general constitutional right to keep firearms in their homes.³⁷  It seems, then, that Heller and knock-and-announce jurispru­dence stand at odds.³⁸  On the one hand, the lawful possession of firearms in the home (for self-protection or otherwise) is an ancient practice, and now a constitutionally protected right.³⁹  On the other hand, the exercise of that right could mean that an individual has effectively forfeited his or her right to be alerted to the government’s presence before law enforcement forcibly enters the premises.⁴⁰

It is only a matter of time before a plaintiff seeking to challenge a forced entry through a civil suit (or in the rare case, a defendant seeking suppression of evi­dence) will argue that the presence of a lawfully possessed firearm in the home could not permissibly be a factor in overcoming the knock-and-announce requirement.  At the time of this writing, there appear to be no reported cases in which this argument has been made.  It will happen.  At that point, the federal courts (and potentially the Supreme Court) will need to adopt a framework for deciding whether the presence of a suspected firearm can justify a no-knock entry.

I propose that there are four basic approaches to weighing the interests protected by the Second and Fourth Amendments in this context.  Each focuses on whether the firearm is lawfully possessed under Heller.

Option One.  The “lawfully possessed/unlawfully possessed” pedigree of a sus­pected firearm is immaterial.  Because a theoretically heightened risk of danger to officers is present whenever a firearm is suspected in the subject premises, it does not matter whether an individual possesses the suspected firearm legally or not.  Therefore, Heller and the pedigree of the weapon have no place in the knock-and-announce analysis, and Heller does not change anything.

Option Two.  The pedigree of a suspected firearm is determinative.  Given the rights recognized in Heller, a suspected firearm that is known to be possessed lawfully cannot form the basis of a heightened risk of violence when determining whether a no-knock entry is appropriate, lest an individual be punished, essen­tially, for exercising their constitutional rights under the Second Amendment.

Option Three.  The pedigree of a suspected firearm is an optional consid­era­tion.  It can be taken into account when determining whether a reasonable suspi­cion of a heightened risk of violence exists, but need not be.  Officers may discount the risk posed to them by a lawfully possessed firearm, but failure to do so will not support invalidation of the no-knock entry.

Option Four.  The pedigree of a suspected firearm is a mandatory consid­eration.  It must be taken into account when determining whether a reasonable suspicion of a heightened risk of violence exists, but it does not end the exigency analysis.  Officers must discount, to some degree, the perceived heightened risk of violence if they believe a firearm to be lawfully possessed.

Options One and Two are simple for officers and homeowners to understand and apply, although they stand in stark contrast.  Option One (the status quo) is a rights-restricting approach, cabining the impact of both Heller and the knock-and-announce rule by allowing the government to forcibly enter a home based in part or in whole on a constitutionally protected activity—lawful possession of a firearm.  Option Two is a rights-expanding approach, promoting the ability of homeowners to possess a weapon without compromising their knock-and-announce rights so long as they possess the weapon legally, thereby bolstering the integrity of both the Second and Fourth Amendments.  Of course, care would need to be taken in crafting a jurisprudence around Option Two.  For instance, could officers effect a forced entry if the occupant were standing behind the door with a legally possessed gun in his hand?  What if he was pointing it at the officers?  Courts would need to recognize, and account for, the potential for legit­imate danger to officers posed by legally possessed firearms, taking care to ensure that the very fact of the firearm’s existence does not de facto lead to a determina­tion that a forced entry is proper.

Options Three and Four promote, to different degrees, officers’ ability to make a case-by-case determination as to the dangerousness of a given situation.  Indeed, fostering such circumstance-specific determinations has been a goal of Fourth Amendment jurisprudence.⁴¹  Option Three suggests that officers (or magistrates evaluating a no-knock warrant application) may, at their discretion, evaluate the risk a lawfully possessed weapon presents and factor that risk into whether exi­gency exists.  Note, though, that Option Three may not be, practically, different from Option One (the status quo), in which officers may still consider the likelihood of violence if they believe a suspected firearm is legally possessed.  Ulti­mately, though, Option Three elides the very issue by making officers responsible for balancing the deep constitutional interests discussed here, rather than courts or the legislature.  It is also highly unlikely that officers would actually balance such constitutional interests in practice, as they have no incentive to discount the theo­retical risk of violence they face.

Option Four, which provides that the lawful pedigree of a suspected firearm must be taken into account by officers (or a reviewing court), and that the risk posed thereby is discounted (relative to an illegally possessed firearm), seems like a healthy balance.  Option Four accounts for the constitutional interests recognized in Heller while permitting officers and magistrates wide latitude to determine whether the presence of a weapon (even one lawfully possessed) truly presents a heightened risk of violence.  One preliminary, but important, issue merits note: Option Four, while sensitive to the constitutional issues raised here, relies on what is essentially an empirical assumption that lawful gun owners are less likely to use their weapons in a manner dangerous to officers upon forced entry into the home.  To my knowledge, no data exists on this question.  Courts would be wise to ques­tion whether reliable empirical data exists before considering a regime akin to Option Four.⁴²

There are other questions a court may consider when confronted with this Heller conundrum.  One is whether the type of lawfully possessed weapon that officers suspect is on the premises—for instance, whether it is a handgun, long arm, fully automatic, or semi-automatic with assault weapon features—should change the analysis.  Another question is whether the suspected presence of mul­tiple firearms on the subject premises matters.  Common sense may suggest that multiple firearms (even if legally possessed) at one location raises the theoretical risk of violence enough to justify a no-knock entry even considering Heller.⁴³

Conclusion

At first glance, the Heller conundrum seems something of a quirk—does one small piece of Fourth Amendment jurisprudence fit with a strain of law that, despite the hype, changes little about whether and how Americans may possess firearms?⁴⁴  There are important undercurrents here, though.

How courts approach this question depends on their understanding of Second and Fourth Amendment jurisprudence in the broadest sense.  How robust are the rights recognized in Heller?  How robust is the Fourth Amendment?  Should courts protect the right to be warned before officers forcibly enter one’s home from encumbrance by the exercise of other rights?  While many constitutional rights are not always easily reconciled, it is the task of conscientious federal courts to interpret such rights in a way that promotes harmony and intellectual consistency, to the extent possible.

This is a crucial issue.  Forced, raid-style entries by police are common and often occur during the execution of drug warrants, especially in socioeconomically disadvantaged communities.⁴⁵  Legal gun possession in those same communities (or any kind of community, for that matter) might be a rational choice for those concerned with individual self-defense—something the Supreme Court found was central to the right to keep and bear arms.⁴⁶  The question that courts should ask is whether individuals should have to choose between exercising their Second Amendment rights and compromising their Fourth Amendment rights.⁴⁷