Death penalty for self defense?

In a discussion of a murder conviction of a man who defended himself against the police and is now on Death Row, Glenn Reynolds touches on one of the worst fears of many a law-abiding gun owner: distinguishing between police and criminals.

In a way, this is the flipside of the Miami airport shooting. And I regard the shooting of a cop in this situation similarly: It's a tragedy, but the risk is, and should be, borne by the person who's acting unreasonably. Here, it's the cop's. When you break down people's doors and charge in unannounced, you do so at your own risk, cop or not.
According to Radley Balko, Cory Maye, a man with no criminal record, defended himself against a SWAT Team member who, at the wrong residence, broke down his door without knocking:
As the raid on Smith commenced, some officers - including Jones -- went around to what they thought was a side door to Smith's residence, looking for a larger stash of drugs. The door was actually a door to Maye's home. Maye was home alone with his young daughter, and asleep, when one member of the SWAT team broke down the outside door. Jones, who wasn't armed, charged in, and made his way to Maye's bedroom. Because police believed Maye's side of the duplex was still part of Smith's residence, they never announced themselves (Note added on 12/0/05: Police said at trial that they did announce themselves before entering Maye's apartment -- Maye and his attorney say otherwise. I'm inclined to believe Maye, for reasons outlined in this post. However, even if they did, announcing seconds before bursting in just before midnight, isn't much better than not announcing at all. An innocent person on the other end of the raid, particularly if still asleep, has every reason to fear for his life.). Maye, fearing for his life and the safety of his daughter, fired at Jones, hitting him in the abdomen, just below his bulletproof vest. Jones died a short time later.

Here's the Mississippi murder statute under which Maye was convicted (also via Radley Balko):

(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman..."
While it appears that Maye didn't know Jones was a police officer, I'm not sure that should be the sole consideration. Was breaking down the door to the wrong residence "an act performed in [Jones'] official capacity"? Does it depend on police good faith? What is that? Suppose the police obtain a "no-knock" warrant, but that because of a computer error, it has the wrong address. Is that different than if the warrant was correct but they mistakenly showed up at the wrong house? I'd argue that breaking down a door without a warrant -- or breaking down the wrong door -- is, simply, an illegal act -- and that (at least for purposes of raising the self defense issue), Jones was not acting within his official capacity. But I'm not sure about the relevant law regarding "official capacity" in the context of self defense against illegal police conduct.

Certainly, if Maye had not shot Jones, he could have sued him for violations of Civil Rights (under 42 U.S.C. §1983):

A police officer acts "under color of law," even if he violates state or local law, provided he acted within the apparent scope of his authority and office.

Monroe v. Pape, 365 U.S. 167 (1961).

It may be that my argument fails, and that there is no right to self defense against illegal police conduct, but that the victim of it must wait and sue.

Self defense against police misconduct was a successful defense in a highly politicized New York case, but I think the standard may be murky, and a New York case would not be applicable in Mississippi.

But suppose Officer Jones, seeing that Maye was armed, had fired first and killed him. This has happened before, and the Cato Institute argues that it's an expected consequence of the drug laws.

The decision to take an illegal shortcut around the warrant application process was bad enough, but the police proceeded to execute a reckless raid. Barging into someone's home in the middle of the night is an extraordinary police action that can be justified only under extraordinary circumstances. The startling and frightening sounds of a forced entry during the night would lead most Americans to believe they were in imminent danger from a predator. If a person in such circumstances has a gun, who in the world can blame him for using it to protect himself?
Concludes writer Tim Lynch:
The endless escalations of the "drug war" have led to the militarization of police tactics and the dilution of constitutional safeguards. For the sake of Oregon and all of the other innocent casualties of this war, it's time to reassess the awful toll it is taking on our society. Dangerous as drugs may be to those who use them, that danger pales in comparison with the dangers of a police state. Yet little by little, that is what the War on Drugs is giving us.
I agree.

The use of SWAT teams to conduct ordinary drug law enforcement results in serious problems even if police have the right address. Here's an account of an Oregon marijuana raid:

Neighbors looked out their windows Oct. 17 to see an armored truck rolling down the street. They saw at least 45 officers armed with shotguns and assault rifles entering a trio of houses, standing guard at alleyways and blocking traffic lanes.

Officers wouldn't explain to startled residents what was going on.

Police pulled four people - including a nude woman and another woman wearing only underpants and a T-shirt - from their beds and kept them in handcuffs in a room of one of the houses for several hours. One woman reported that an officer covered her head with a black fabric bag and removed it only when she agreed to cooperate.

This house at 909 W. Fifth Ave. was one of several raided by police Oct. 17 in a search for illegal drugs.

Neighbors later learned that officers had served a search warrant at three adjacent houses near West Fifth Avenue and Adams Street, where police suspected people were growing marijuana.

The raid sparked immediate outrage among more than a dozen neighbors and friends of the property owners and in recent weeks has become a rallying point for community organizers. The fact that police found no marijuana plants or weapons has only angered neighbors further.

Well, at least they had the right address!

Self defense against the police is a very, very scary thing to contemplate. But as an armed homeowner, how am I supposed to know whether a group of men breaking down my door in the dark are police with a bad warrant, or a criminal gang?

Situations like this beg the question of what is a criminal gang, and who is in it. I once had a close call with police who suspected me of being with a group of Symbionese Liberation Army bank robbers. I suppose I could have been killed by either side for being in the heat of battle -- in a "war" I didn't know was going on.

At least it wasn't a SWAT team.

Too often, SWAT teams are deployed on the flimsiest of pretexts. A neighbor complaining about a domestic dispute can lead to coding the call as a "hostage situation" which can then trigger a call for a SWAT team. Bureaucrats are just as capable of being wrong as anyone else.

Mistakes made in the heat of battle can be very unforgiving.

So can self defense.

UPDATE (12/10/05): Via InstaPundit, Talk Left shares a Hattisburg American report from Maye's original trial:

The man accused of killing Prentiss police officer Ron Jones in December 2001 testified Thursday that he didn't know Jones was a law enforcement officer when he shot him.

Cory Maye, 23, said he was asleep on a chair in the living room of his Prentiss apartment as his 14-month-old daughter slept in the bedroom when he heard a loud crash at his front door. "I immediately ran to my daughter's room, got a pistol, put in a magazine and chambered a round," said Maye, who is on trial for capital murder in Marion County. "As I laid on the floor by the bed, I heard kicks at the back door. I was frightened, I thought someone was trying to break in on me and my daughter."

Maye testified that it was dark in his apartment when he heard someone breaking into the back door, which was located in the bedroom. "That's when I fired the shots," Maye said. "After I fired the shots, I heard them yell 'police! police!' Once I heard them, I put the weapon down and slid it away. I did not know they were police officers."

How was he supposed to have known that it was the police who made the loud crash, and who were kicking in the door? Clearly, there was reasonable doubt at the very least.

I'm wondering about the quality of Mr. Maye's defense.

Unless we are prepared to establish a new duty to ask home invaders whether they are police (I can only imagine how a criminal would answer that), I don't see how this man could have been convicted consistent with our legal system.

The problem, of course, is that the whole idea of "no-knock" warrants is inconsistent with our legal system. We might as well abolish the "man's home is his castle" doctrine, as well as self defense.

Cowardly new world, I'd say....

MORE: Via Glenn Reynolds, I see that Silent Running has written an open letter to Mississippi Governor Haley Barbour. In his post, he calls this a case of "there but for the grace of God go I":

....the death penalty isn’t the issue. The main issue is that Cory Maye ended up in jail at all. There is an expression “there but for the grace of god go I” - and it is really hard to read the particulars of this case without having that thought, or one which expresses the same sentiment, cross your mind.
It's a disgraceful miscarriage of justice with unmistakable overtones of racial bias and highly emotional favoritism mixed with grief. (The officer was the son of the local police chief, and at the very least, venue should have been moved to another area.)

This makes Mississippi look bad, and I think it makes the country look bad. Haley Barbour is an honorable man. Here's hoping he does the honorable thing.

MORE: A comment by a police officer left at Silent Running reminds me that this whole affair also makes good police officers look bad:

I was a cop for 29 years. Some of it in Homicide, some of it in the narcs and some as a senior police commander. You are right…..If the facts are as presented, this is a miscarriage. I don’t like no-knocks and this is exactly why. I recognize that they are sometimes necessary for the safety of the officers involved and to insure that you get the evidence that you are looking for but you absolutely have to do your homework.

I have been involved in a lot of search warrant services and a few have gone sideways….almost always because we missed something in the prep. If you are doing a no-knock, you have absolutely got to know everythng you possibly can about your target and you have to practice and practice and practice until you can do it in the dark.

I hope this can be resolved….no police officer worthy of the name wants to see an innocent man in prison let alone on death row.

MORE: There's more at Radley Balko's blog, and it's beginning to appear possible that account he was earlier given by the court clerk might turn out to be inaccurate.

Here are some excerpts from prosecutor Buddy McDonald's reply to Balko:

....There were 2 separate search warrants issued for 2 separate apartments in a wood frame duplex which were located side by side one of which was the apartment Maye was in. The warrant was not for the wrong apartment. The warrants were issued by a lawyer/city judge not a lay judge. The warrants were served at the same time by two teams. The testimony was that there were several announcements that they were the police and that they had a search warrant.

....

If the officer had not had a valid warrant and right to be there the trial judge would not have allowed the case to go forward.

....

The case was not tried in the county of the killing but venue was changed to another county. From the State and the jury’s point of view it was not a no knock or no announce case. I can really say no more than this now but the transcript will give you the full story.

Radley Balko is now attempting to get the actual warrant from the clerk to resolve the discrepancy, but there remain unanswered questions. Why did the clerk told him that Maye's name was not on the warrant? And what about the burden of proof to show Maye knew there was a police officer?

More here.

And questions for the DA here.

We'll just have to stay tuned.

AND MORE (12/12/05): Via Glenn Reynolds.com, I see that Radley Balko is getting answers to the questions he asked the DA. Maye was apparently not named on the search warrant, and there's still been no showing (in the form of any reliable report) that he was dealing drugs which would have been suffient to justify the raid on his premises. As Radley Balko says, this would have been highly relevant to whether he might have thought it was the police who were invading his home.

As Balko points out, not knowing is an inherent problem posed by no-knock (or simultaneously announcing-while-breaking-in) raids:

If the narcotics task force that raided Maye's home really did set out to knock, announce themselves, then give Maye a reasonable time to answer the door, why would they serve the warrant at 11:30 at night?

Wouldn't it make more sense to serve the warrant at 7 or 8, when Maye would be less likely to be sleeping, and more likely to hear the police announce themselves, come to the door, and answer? Isn't a late-night raid more likely to inspire fear and apprehension?

Unfortunately, this is a pretty common practice, particularly in jurisdictions where no-knock raids have been outlawed or severely restricted. Police get around it by conducting "knock-and-announce" raids at hours when a normal person would be least likely to hear the announcement.

If I am asleep, and police say "police" outside my door, then smash it in, the only thing that's going to wake me up is the smashing. These types of raids should be abolished, as they're predicated on the assumption of certain behavior by guilty drug dealers, but when executed against innocent citizens, tragedies like this are an inevitable result. In the case of Maye, I think it's obvious that the police didn't even know who he was, but just wanted to raid his place because it was next door to a drug dealer's place.

Radley has more on the ineffective counsel issue here.

I agree with Glenn

HALEY BARBOUR CALL YOUR OFFICE

UPDATE (12/14/05): Radley Balko has been working very hard getting all the details, and he now has a comprehensive post on everything he has found to date. (Via Glenn Reynolds.)

UPDATE (12/15/05): Despite the fact that he was misinformed by the clerk, and relied (as would have any blogger) on a certain amount of speculation about what he did not know, via InstaPundit I see that Radley Balko is now being condemned for not having gotten all the detail right -- especially in his first big post on the Maye matter. Well, there but for the grace of God go I! What Radley has done is to live up to a standard to which every blogger should aspire. Say what you know, offer speculation (identified as speculation) about what you don't know, offer your opinion, and then UPDATE, UPDATE, UPDATE. He's written more posts about the Maye matter than I can count, and is living up to a very high standard of blogger accountability. Not getting it exactly right the first time is to be expected in this kind of reporting, especially with this kind of case. The important thing is to admit mistakes and keep posting as information becomes available, and that's exactly what Radley has done.

posted by Eric on 12.09.05 at 10:17 AM










Comments

I'm sure there are people who would say that SWAT teams and no-knock warrants are a good argument for gun control. . .

Eric Scheie   ·  December 9, 2005 3:29 PM

Er, just curious, but I'm wondering why your comment shows that it hasn't been made yet (it's 3:30 right now), even though I just replied to it?

:)

Eric Scheie   ·  December 9, 2005 3:31 PM

Testing.... I just reset my computer's clock to 4:32.

Eric Scheie   ·  December 9, 2005 3:33 PM

Nope. Didn't work!

Tom, how did you manage to comment from the future?

PLEASE! I HAVE TO KNOW!

Eric Scheie   ·  December 9, 2005 3:34 PM

Eric:

Only the most experienced bloggers can SO accurately forsee comments that they can respond to those comments BEFORE they are posted.

Truly, you have superior blog-fu!

Sean   ·  December 9, 2005 3:43 PM

The no-knock warrant is so dangerous it's scary. There are enough smart criminals out there that it's not hard to imagine some of them getting the idea of barging into a home yelling that they're the police. How are the police going to protect me against that?

Until they come up with a fool proof way of IDing themselves (read: never) I'll be assuming anyone busting down my door at 2am is a bad guy. It might get me killed, but at least I won't die for the sake of hesitation (I hope).

Tom   ·  December 9, 2005 3:46 PM

How was he convicted? I mean a jury must have signed off on this, right? Very strange to me that they would do that...

Harkonnendog   ·  December 9, 2005 5:13 PM

Sean, if only I could apply that to the newspaper -- and respond to certain things before they're reported, I'd be richer than Bill Gates in a week!

Theron, under the statute above the jury convicted him, and Radley Balko has most of the details. (Apparently they thought he had a bad attitude....)

Eric Scheie   ·  December 9, 2005 5:22 PM

maybe I should read the link before I ask dumb questions... sorry :)

Harkonnendog   ·  December 9, 2005 5:25 PM

Not a dumb question at all. It's hard to believe any jury would do this.

Eric Scheie   ·  December 9, 2005 9:09 PM

Certainly, if Maye had not shot Jones, he could have sued him for violations of Civil Rights (under 42 U.S.C. §1983):

Not if the intruder killed him first. A friend was assualted by a thug who literally broke down her back door. What a bizarre case, I can't believe he's on death row

beautifulatrocities   ·  December 9, 2005 9:29 PM

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