But appeal challenges constitutionality of cops’ fear of AK-47
A Texas citizen is asking a state appeals court to decide whether police are justified in launching a no-knock raid on a home they want to search simply because they believe there is a gun inside.
“Whatever the issue might be, whether it’s mass surveillance, no-knock raids, or the right to freely express one’s views about the government, we’ve moved into a new age in which the rights of the citizenry are being treated as a secondary concern by the White House, Congress, the courts and their vast holding of employees, including law enforcement officials,” said John W. Whitehead, president of the Rutherford Institute, which is defending John Gerard Quinn.
The controversy arose after police officers in Texas executed a no-knock raid on Quinn’s home, based on their belief there was an AK-47 rifle inside.
In its appeal to the Texas Court of Criminal Appeals, the Rutherford Institute pointed out that the U.S. Supreme Court has ruled that a no-knock entry is justified only with a specific warrant or if officers believe someone might be hurt or evidence might be lost.
“Here, the police based their no-knock entry solely upon their suspicion that the occupants of the residence may have been in possession of a rifle,” the appeal explains. “That the suspected possession of weapons was the only ‘justification’ for use of a no-knock entry in this case is undisputed.”
The petition asks that the court establish that an individual’s exercise of his Second Amendment right to possess a firearm in his residence does not deprive him of his Fourth Amendment protection against “no-knock” searches.
Quinn’s home had been “stormed by a SWAT team that failed to knock and announce its entry in keeping with police protocol for non-violent situations,” Rutherford said.
“Although the SWAT team had been granted a search warrant on the basis of leads provided by informants that Quinn’s son may have been involved in drug activity, the warrant did not authorize police to enter the residence without knocking and announcing their entry.”
The SWAT team forcibly broke into Quinn’s home after he had gone to bed and proceeded to carry out a search of the premises. The raid resulted in police finding less than one gram of cocaine, which Quinn was charged with possessing.
The appeal also raises other constitutional issues, including a defective answer from a judge to the jury deliberating the case and the inappropriate use of evidence that should have been suppressed.
But on the issue of the gun in the home, the brief argues that the Supreme Court never has held that suspected possession of firearms is sufficient cause, without more, to justify a no-knock entry.
The brief also criticizes earlier court comments about the AK-47.
“The [court] seems to think than an ‘AK-47′ rifle is some sort of ‘exceptionally’ dangerous weapon. Actually, despite the faux mystique surrounding that particular type of rifle fostered by popular media, the AK-47 is not uniquely dangerous,” a footnote in the brief explains. “It is the most-used rifle in the world because there are 100 million of them, it is cheap to make and easy to repair, and because it can be chambered for a wide variety of calibers.
“When chambered for .223 caliber … it is no more dangerous than any other .223 caliber rifle such as the AR-15 – the most widely used hunting rifle in the U.S. today,” the footnote says.
“As a gun collector who prudently kept his legally owned collection safely secured in gun vaults, it was altogether possible that Mr. Quinn could have had a large number of guns in his home and no ammunition. The point here is not to argue that ‘possession’ of guns does not roughly or usually equate to possession of ‘working’ guns. The point is: an AK-47 is no more powerful – and is indeed less powerful – than many common hunting rifles.
“The police, being weapons experts, obviously knew this – but testified about the ‘dangerous’ nature of this particular gun because they knew the jury would have heard of it in the media and would know about its mystique as the weapon of choice for terrorists around the world. Clever, but misleading.”