Sean Lowe wants to ban no-knock warrants

But no one else seems interested.

Words had to change their ordinary meaning and to take that which was now given them. Reckless audacity came to be considered the courage of a loyal supporter; prudent hesitation, specious cowardice; moderation was held to be a cloak for unmanliness; ability to see all sides of a question incapacity to act on any.

- Thucydides 3.82 [4]

Sean Lowe, chair of the Equity and Inclusion commission and newly-elected Alder of District 5, wants to ban no-knock warrants partly so that people will read about, and be encouraged by, the “progressive things Wauwatosa has done to really have a 21st Century policing model and make the city feel safer for minorities.”

But I think it would be better for Wauwatosa to do effective things that actually make people safer. It doesn’t seem like a ban on no-knock warrants will accomplish this, and I think his insistence on trying to do it anyway illustrates the ways in which viewing local problems through the lens of national political discourse can make local policy making less effective.

I.

During his March 29th presentation to the Government Affairs Committee on the last year's activities of the Equity and Inclusion Commission, Sean Lowe voiced his frustration that the council had been unwilling to take action on their recommendation to ban no-knock warrants. He expressed a similar frustration at greater length when the issue was discussed, and ultimately shelved, at a prior Government Affairs meeting in November, 2021:

…The Equity and Inclusion Commission put this forward June 26, 2020. Again, I'm going to repeat that. Not June of 2021. June of 2020. So, we've waited a year and a half for this moment. I could care less about us being an hour and forty-seven minutes into a meeting, when I've waited a year and a half for Wauwatosa to fall in line with civil rights and racial justice, and you guys have not done this …

So why haven’t they done anything?

No knock warrants are search warrants where the police are not required to announce their presence before entering the property. They became increasingly popular in the 1980s and 90s during the War on Drugs and during the 2000s as many police departments acquired readily-available surplus military equipment to create their own SWAT teams. However, numerous examples of cops entering the wrong house, injuring children, or shooting the wrong person have resulted in significant negative press and numerous states banning the practice. Even the National Tactical Officers Association, in an article for the New York Times, has called for such techniques to be used sparingly: “If we are going to risk our lives, we risk them for a hostage, for a citizen, for a fellow officer. You definitely don’t go in and risk your life for drugs.”

Sean Lowe advocated for a similar ban on no-knock warrants in Wauwatosa and would often cite high-profile accidents related to their use in other cities including the killing of Breonna Taylor in Kentucky and Amir Locke in Minnesota. He also argued that without a ban residents would continue to feel unsafe and that minorities would be reluctant to move to Wauwatosa.

However, during Government Affairs and Equity and Inclusion commission meetings in early-June, 2021, representatives from the Wauwatosa Police Department (WPD) and the City Attorney’s office gave short presentations on how no-knock warrants actually work in the city of Wauwatosa and nationwide. Lt. Wruke, the commander of WPD’s Special Response Team (SRT), noted that:

• The WPD executes search warrants relatively infrequently—perhaps a half-dozen each year¹—and ‘high-risk’ (a category that includes no-knock warrants) served by the SRT occur even less often than that: only two had been executed between 2016 and 2020. And even those were knock-and-announce warrants.

• In contrast to some of the more high-profile incidents that have been covered in newspapers over the last several years where no-knock warrants are often executed during suspected drug crimes to prevent the destruction of evidence, the WPD’s policies allow for such warrants only in instances where a no-knock entry is considered safer for suspects, neighbors, and officers. They are not allowed merely to prevent the destruction of evidence.

• While Wauwatosa could ban no-knock warrants for its own officers, it could not prevent other police jurisdictions from executing no-knock warrants within the city including other police departments in Milwaukee County and federal law enforcement.

City Assistant Attorney Hanna Kolberg also added that:

• Only one state, Virginia, actually has an outright ban on no-knock warrants,

• Many states that “ban” no-knock warrants do not actually ban them, because they still allow them in exceptional circumstances where a knock-and-announce warrant would be considered unsafe for officers, suspects, and the surrounding community.

• The WPD policy already limits no-knock warrants to these type of situations.

I think what I found interesting about their presentation was that Sean Lowe, while thanking the police department and the city attorney for providing this information, mostly continued on as if he hadn’t really heard any of it at all:

Phenomenal presentation by the police department. I really, truly do appreciate the data. Also phenomenal presentation from Attorney Kolberg. I really do appreciate the amount of research that you put in for—all the statistics that you put in for all the states and cities that have bans in place…

And then, he immediately shifts back to why we need no-knock warrants citing similar action by other cities and municipalities:

I also wanted to mention though that Pittsburgh had it on the ballot for the city to vote on [in May] regarding what citizens think about approving a no-knock warrant ban, and 81% of the voters support the measure. So I wanted to add that in there as well. I strongly believe that we should place a ban on no-knock warrants. I think it’s vital in terms of an equitable and diverse and inclusive city. This is something we should do. This is something that—especially people of color—are googling and looking at in terms of moving to a city for employment and to raise their families wanting to know Is this a city where such laws are in place?

Because too often we see disparities in no-knock warrants being executed. And I’m not specifically referring to the city of Wauwatosa, but it has happened in other cities. This is not something that is going to cost our Police Department any money to put in force. It’s not going to cost our city to put an ordinance in force. In fact, if one no-knock warrant went awry, we would be looking at potentially millions of dollars of cost…in terms of paying […] the victim, and dealing with civil unrest.

And he returns a few months later in November to chastise the Common Council for not taking his recommendations:

I'm a little bit disturbed that a vote was note even scheduled for tonight and only a discussion for the Chief. To me, that's leaning the vote already in one direction, that we're just going to hear from the Chief's comments and not even vote on it.

But as Ald. Tilleson explains, that’s not really how government works:

To individuals that are asking us to move quickly on this, the first step would be to find a member of the common council that's going to propose an ordinance. That's not going to happen tomorrow. I mean, you can find someone, they can draft an ordinance and agendize it...but absent that I don't think the committee should be talking about this [...] At what point do we just keep bringing these updates without anyone actually proposing legislation for us to take a position on?

And Ald. Stippich, after pointing out that a ‘ban’ on no-knock warrants that still allows them under certain circumstances is functionally the same as the current policy of permitting them but requiring a high threshold for their use, ultimately concludes:

I think that based upon what it is that we’ve heard—at the earlier meeting as well—from what I’ve heard, from the standpoint of our practice and what’s been reiterated tonight from the Chief, that wouldn’t be a motion that I would be bringing.

IIa.

So, the Police Department performs no-knock warrants very rarely, internal policy prevents them from doing them in many of the situations that have led to the highly-publicized mistakes which have motivated calls for banning them in other places, a ban won’t stop other law enforcement agencies from executing no-knock warrants in Wauwatosa, and the bans from other states and municipalities that are pointed to as justification for doing the same are often not actually complete bans and are in fact functionally similar to policies that the police department already follows.

At the same time, the examples of no-knock warrants that have gone awry really are terrible. The same New York Times article mentioned earlier describes an incident where a SWAT team in Georgia threw a flashbang grenade into a baby’s crib as they attempted to catch a low-level meth dealer who wasn’t even at home. This is outrageous, and the world would be better if those types of things didn’t happen.

But America is also a country of 330 million people, it’s easy to find egregious examples of almost anything, and I think it’s important to try to anticipate what the likely effect would be for Wauwatosa in particular. And the Wauwatosa Police Department’s SRT not only operates with a number of restrictions² in place to prevent exactly those egregious things from occurring, but they don’t seem to operate that often at all. They served two warrants in five years.

So how frequently should we expect a no-knock warrant in Wauwatosa to go wrong?

The New York Times article mentions that good national data on the number of no-knock warrants served each year is hard to come by, because most police departments don’t require that it be collected. However, for a period of time the state of Maryland did.³

From 2010 through 2014, SWAT teams in Maryland deployed 8,249 times. Of those 8,249 deployments, civilians were killed in 9 of them and injured in 95. That comes to 0.001 civilian deaths and 0.012 civilian injures per SWAT deployment. If the Wauwatosa SRT (similar to SWAT) serves an average of 2 high-risk search warrants every 5 years, and they have a similar rate of injury and death as SWAT teams in Maryland, one should expect, on average in Wauwatosa, a civilian death every 2,300 years and an injury every 200 years.⁴ And these are any deaths or injuries—not just the mistaken ones. Considering how rare it is, I just wonder if there aren’t more effective ways to make residents safe and secure than by preventing one person from being killed by a police officer every couple millennia.

The above isn’t a perfect comparison, because Maryland isn’t Wauwatosa, the data is several years old, and it aggregates SWAT deployments for search warrants with other types of police activity which may differ in their level of risk (although over 90% of SWAT deployments were for the purpose of executing search warrants so I think it is reasonable), but I think it at least gives a rough order of magnitude for how likely these problems are.

IIb.

…when I look at articles right now that are out there, right on JS Online and what not and they talk about, What has the city of Wauwatosa done in a year of unrest?

They got body cameras approved, they got updated laws on banning choke holds […]. Those are things that came directly out of the Equity and Inclusion commission, and if we have a ban on no-knock warrants that'll be added right in there in those future articles when it’s talking about What are some progressive things Wauwatosa has done to really have a 21st Century policing model and make the city feel safer for minorities?

- Sean Lowe during an Equity and Inclusion commission meeting on June 3, 2021

The claim is that banning no-knock warrants will prevent unnecessary deaths, make the community safer, and improve the public’s perception of the police department and the city, but it’s actually hard to know what the effect of banning no-knock warrants has, because there is not a lot of data or research.

However, I think proponents of body-worn cameras make similar claims, there has been a lot of research on that, and it might be useful for calibrating our expectations about banning no-knock warrants. This article from the ACLU provides a decent overview of some of the relevant research.

My sense is that a common motivation for body-cameras was the suspicion that jurors and judges were often overly deferential to police testimony and that police officers were more worried about watching out for their fellow officers than telling the truth about what happened in various interactions with civilians. But the ACLU article notes that body-camera footage is actually used more often to prosecute civilians than the police:

One 2016 study found that 92.6 percent of prosecutors’ offices in jurisdictions with body cameras have used that footage as evidence to prosecute civilians, while just 8.3 percent have used it to prosecute police officers. Similarly, an investigatory report by Fusion found that body cameras are more likely to be used to clear officers of wrongdoing and lower litigation costs rather than hold officers accountable.

One interpretation of this is that officers were actually telling the truth. Another is that, in contrast to citizen recordings, the police have control over when their cameras are turned on-and-off and what they capture so that, despite the claims that body-cameras will provide more objective evidence, it is still susceptible to manipulation that allows police officers to place themselves in a positive light even if they are actually breaking the law.

What’s more, large studies that randomly assigned body-worn cameras to some subset of officers while another random subset of police officers continue to work without them found that body-cameras:

…had no statistically significant impact on officer use of force, civilian complaints, or arrests for disorderly conduct by officers. In other words, body cameras did not reduce police misconduct. A 2020 meta-analysis similarly found substantial uncertainty about whether body cameras can reduce officer use of force. A recent 2021 study did find that on average, body cameras reduced use of force by nearly 10%, but the study’s authors noted that their results may have been inflated by site-selection bias.

Finally, Sean Lowe claims that banning no-knock warrants will improve people’s perception of the police, but the same claim is made about body-worn cameras (BWCs). In a review of the evidence and research by Lum, Stoltz, Koper, and Scherer in 2019, they find that the people who support requiring police to wear cameras were those that already had relatively higher opinions of the police to begin with. They are also those least likely to interact with them. In contrast, non-whites and younger civilians are more skeptical:

Kerrison, Cobbina, and Bender (2018) in their interviews of Black residents in Baltimore City also found those residents were skeptical of the use of BWCs and video by the police to secure police accountability, despite interviewees’ general support for more video footage.

And I would expect that requiring body-worn cameras would be more likely to improve public perceptions of the police than banning no-knock warrants given that individuals are much more likely to experience police misconduct in general than unjustified killings in particular (which bans on no-knock warrants are intended to prevent). So if it’s difficult to find an effect there, we should be more skeptical of finding an effect here as well.

And yet, I’m not sure Sean Lowe really thinks of the issue in terms of effectiveness. Reporting back to the Equity and Inclusion commission after his recommendation to ban no-knock warrants were not taken up by the Government Affairs committee, he says:

So, I’ll wait until April to bring it back up, maybe with Government Affairs depending on how Tosa elections shake out. But I don’t know if this Common Council is going to do anything further on it. It’s highly disappointing.

III.

Why?

While I didn’t think that the information provided by the police and the city attorney absolutely invalidated any possible argument for banning no-knock warrants, I did feel that it should cause him to re-evaluate his position or to consider other, potentially more effective ways of achieving his goal of making the city safer and its residents feel more secure. Or even just consider more effective ways of presenting his argument. He might have tried to address other’s counter-arguments, or offered additional evidence for why a ban might be useful despite their relative rarity in Wauwatosa and the policies in place to control them.

But he just moved on like he didn’t hear it and got upset when others did not do what he wanted. One guess for why is inexperience. The reason that for over a year and a half he never got legislation drafted and placed on the agenda for the common council to vote on is because he didn’t know that’s how it worked. But I also get the sense that he sees many people who disagree with him as members of an opposing team who will always disagree with him rather than as individuals that can be persuaded.

And maybe he’s right. I don’t know. But I guess my claim is that it is still worth trying to persuade people that this is a good idea and will have the benefits he thinks it will because, at the very least, it forces you to think more clearly about why you want to do something.

Instead his argument mostly consists of him repeating that because other problems in other cities have occurred and other cities and states are taking such actions, we should to. It’s not a crazy argument, but I think it’s also important to acknowledge that local conditions matter, to pay attention to what laws and policies in other states actually do rather than what they say they do, and that if your claim is that this policy will make people feel safe and more willing to move to Wauwatosa that you offer some proof or justification for why that is the case.

Instances of police misconduct frequently attract national attention, can cause widespread unrest, and motivate extensive but abstract debates on the role of policing in society. Policy solutions that come out of these national debates can be useful to local politicians because, in an environment where people primarily consume national news, these solutions have high salience, examples of the negative consequences that arise without them come easily to mind, and they are simple to evaluate based on partisan affiliations. If people you know and like support a policy, you may feel relatively more comfortable supporting and advocating for it yourself even if you do not understand all the details of how it might work or what effects it might have.

But I think this can also absolve local leaders of doing the hard work to understand its implementation and likely effects as well. And while it may be easy to persuade like-minded people to support it since it is easily recognizable as a policy that friends and others with similar perspectives already support, it can also create unnecessary opposition from people with opposing political views who may dislike it because its an idea proposed by people they already disagree with on almost everything else.

Robin Hanson, an economist at George Mason University, talks about pulling on policy ropes sideways. Instead of taking predictable partisan positions on policy issues, try to find something that isn’t easily translated onto a left-right axis. At a national level this can be difficult, because it can make people suspicious and it can be difficult to convince supporters. But at a local level, it should be easier. You simply need to convince a handful of non-partisan elected officials that almost no one pays close attention to.

Reckless audacity came to be considered the courage of a loyal supporter; prudent hesitation, specious cowardice; moderation was held to be a cloak for unmanliness; ability to see all sides of a question incapacity to act on any.

This line, from Thucydides’ History of the Peloponnesian War, comes at a point where he is describing the way in which the long and protracted war between Athens and Sparta has managed to engulf and polarize even seemingly neutral and uninvolved cities. The stress and salience of a larger political conflict causes the Corcyreans to begin viewing their local problems in the language and terms of this larger conflict. Citizens turn on one another, friends and families take opposing sides, and individuals attribute the most cynical and base motives even to well-meaning and earnest efforts to cooperate.

I think there is a sense in which viewing local events through a national lens can be useful, but I think it can just as easily distort the terms of debate and make goals more difficult to achieve. It can lead us to view individuals as players in a game or representatives of a team rather than as autonomous people whose objections can be taken at face-value. But I think it’s worth considering that people might disagree with your ideas not because they’re the wrong kind of people and disposed to disagree but because they have legitimate concerns that are worth listening and responding to.

1. Extrapolating based on a comment Capt. Luke Vetter during a June 3, 2021, Equity and Inclusion commission meeting where he mentioned that the WPD had served three warrants so-far this year.

2. I believe the WPD follows best practices as provided by the same National Tactical Officer’s Association cited in the New York Times article that thought no-knock warrants should only be used sparingly and to protect life, but I can’t find the moment in their presentation where they said this.

3. The state became interested after a botched raid where a Mayor’s dogs were shot—you can’t make this stuff up.

4. It’s always risky to do math in public but (8,249 deployments / 9 deaths) x (5 years / 2 deployments) = 2,291 years per death.