Marvin Guy is facing capital murder in Killeen, Texas for shooting and killing a SWAT officer that was executing a no-knock, pre-dawn drug raid and Mr. Guy’s home where he was in bed with his wife. No drugs were found and the raid was apparently based on a bogus tip. [http://thefreethoughtproject.com/prosecutor-seeking-death-penalty-officer-killed-knock-raid/] Under Texas law, it is not a defense to resisting arrest that the search or arrest is unlawful. With a no-knock, pre-dawn raid there is no presentation of a warrant, no time to react, no way to determine legality. That’s the point. Resistance is futile. So what should Mr. Guy have done?
No-knock raids and preventative detention were part of Nixon’s strategy from the beginning of his war against the counterculture. The U.S. Supreme Court has held that "no-knock" warrants are justified when police officers have a "reasonable suspicion" that knocking and announcing their presence before entering would "be dangerous or futile, or . . . inhibit the effective investigation of the crime." Richards v. Wisconsin (1997) 520 U.S. 385, 394 (1997). Now, there are more than 50,000 SWAT raids per year, most to search for contraband and many executed pre-dawn with no knock or announcement. Magistrates often issue a no-knock warrant upon a showing that the target is a licensed gun owner. The results are tragic. [http://www.huffingtonpost.com/2013/02/15/raid-of-the-day-anthony-d_n_2696658.html] The 2nd Amendment implications are largely unaddressed.
In Michigan, the right to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our state’s common law. In explaining the common-law right to resist an unlawful arrest, the Michigan Supreme Court has stated that “one may use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest” and that “the basis for such preventive or resistive action is the illegality of an officer’s action, to which [a] defendant immediately reacts.” People v. Moreno, [http://komornlaw.com/wp-content/uploads/2014/09/People-v-Moreno.pdf] While it may be argued that a citizen it is not justified to resist a search or arrest based upon a facially valid warrant, a no-knock entry provides no such opportunity to stand down. In Michigan, a warrant for a no-knock entry is a recipe for a legal firefight, winners and losers to be determined after the fact.
The vast majority of SWAT raids are to search for drugs, mostly marijuana. In Michigan, there is the additional fact that medical marijuana is legal. Eliminating no-knock entries to search for marijuana would be good policy and greatly reduce harm. Eliminating SWAT team enforcement of marijuana laws altogether would be the best policy. Indeed, inspections of registered patients and caregivers should not be conducted as raids at all. "A criminal raid executed under the guise of an administrative inspection is constitutionally unreasonable": [http://komornlaw.com/wp-content/uploads/2014/09/Berry-v-Leslie.pdf]
Should Mr. Guy have moved to Michigan? Probably not quite yet. Might he have a better chance with a Texas jury? In February, just a few months before the fateful raid in Killeen, all charges against another man were dropped in a nearly identical raid when a Texas grand jury refused to indict, based on its believing that he feared for his safety and that killing the officer was a reasonable act of self-defense. Unlike the defendant in that case, Mr. Guy is black. What should Mr. Guy have done? The jury’s still out.