Gun owners and self-defense advocates are lauding a rare victory in which a Texas grand jury has refused to indict a homeowner for shooting and killing a police officer who entered his home unannounced in the middle of the night.
The homeowner, Henry Magee, 28, said he thought the officers who broke through his door were robbers and he acted in self-defense to protect his pregnant girlfriend and two children.
Police were acting on a tip from a criminal informant that led them to believe Magee had more than a dozen marijuana plants, all at least six feet tall, in his rural home in Burleson County. Officers included a line on the warrant that Magee also had “possible illegal guns” stolen from the local sheriff’s office. The local magistrate signed off on the warrant, with deadly consequences.
Before the sun came up on Dec. 19, nine deputies broke down the door to Magee’s mobile home and set off a flash-bang grenade. Magee confronted them, firing away as they barged through the door. One of the deputies, Adam Sowders, fell dead.
When the dust settled, they found two small marijuana plants less than six inches tall and four guns, all legally owned by Magee, three of which were locked in a safe.
What happened at the grand jury was nothing short of stunning.
“I don’t know of any other case where someone shot and killed a police officer in the course of a drug raid has been no-billed by a grand jury,” Dick DeGuerrin, the attorney representing Magee, told the Washington Post. “At least not in Texas.”
Forbes magazine reported: “That sort of outcome is rare not just in Texas but throughout the country, since people who shoot cops invading their homes usually do not get the same benefit of the doubt as cops do when the roles are reversed. (Just ask Corey Maye.) This double standard is reflected in the reaction from the local district attorney:
“Julie Renken, the district attorney for Burleson County, said in a statement Thursday she thought the sheriff’s office acted correctly during events that ‘occurred in a matter of seconds amongst chaos.’
“‘I believe the evidence also shows that an announcement was made,’ Renken said. ‘However, there is not enough evidence that Mr. Magee knew that day that Peace Officers were entering his home.'”
When presenting a search warrant to a judge in a drug case, police will often include the possibility of guns to get the judge to sign off on waiving the “knock and announce” requirement, defense lawyers say. It is also fairly common for police to ask for no-knock warrants in drug cases where the suspect could destroy evidence, although in this case Magee’s attorney told the Post it would have been impossible to flush six-foot marijuana plants down the toilet.
What is less common is that the homeowner who draws a gun and acts to defend his family is not shot to death on the spot. Even more uncommon is that he should live and not be charged with first-degree murder, said John Whitehead, a constitutional attorney with the Rutherford Institute.
“Yes, this is unusual. We had another case in Texas that the Supreme Court refused to hear, where the father was in his bed and the police entered the home because his son had a little pot and shot him because he went for his gun thinking it was a criminal intruder,” Whitehead told WND. “Americans have a right to defend themselves against intruders and especially intruders who smash through their doors unannounced with guns drawn in the middle of the night.”
The District Attorney’s office released the following statement:
“The Burleson County Sheriff’s Office would not have been there that day if Mr. Magee had not decided to live a lifestyle of doing and producing illegal drugs in his home. Therefore, we will fully prosecute the drug charges against him.”
Whitehead said police are increasingly using no-knock raids to deliver arrest warrants for nonviolent crimes such as drug possession simply because the homeowner is a licensed gun owner.
In asking the U.S. Supreme Court to hear the case of Quinn v. State of Texas, Whitehead’s legal team argued that making lawful gun ownership the sole grounds for a no-knock warrant improperly penalizes and limits the Second Amendment right to bear arms. The court refused last year to hear the case.
The number of no-knock raids conducted by police in the United States has increased exponentially since the advent of SWAT teams in 1980. Only a few hundred such raids took place in those early years, but last year more than 80,000 no-knock raids were conducted on American homes, Whitehead said. And 80 percent of SWAT raids are for mere warrant service.
What started out as a rare exception has morphed into a routine police practice, said Whitehead, author of “A Government of Wolves: The Emerging American Police State.”
“In my book I discuss the case of Jose Guerrero. The cops came through and were intruders in his home, they were in the wrong house in that case,” he said. “What else do you do? Just sit down and say ‘kill my wife and my kids?’ Under the Second Amendment, Americans have the right to own guns and to defend their homes and families.”
Also driving the increase in no-knock warrants is that many police departments receive federal money to make drug arrests.
“Police get government grants to make pot busts, and that’s not right. No policeman should be going through your door to make money,” Whitehead said. “If we don’t slow the police down on these types of raids, it will be the end of property rights. When I was a young guy, the police always knocked at your door, and that was the main purpose, to identify that they have the right person. In this type of case, I think the defendant had the right to defend himself, his family and his property.”
Whitehead sees the key constitutional principle as one of private property rights.
“With a warrant or without a warrant, if they can smash through people’s doors without announcing and identifying themselves, then you don’t own your property anymore,” he said. “A man’s home is his castle, and our Founding Fathers believed that. Private property is the key. If you don’t have that one area where it’s sacrosanct from the state, you don’t have anything. If you can’t tell that policeman, ‘Back off guy, you can’t enter my home unless you knock and identify yourself,’ then you don’t own your property anymore. It belongs to the state. But, of course, that’s what they want you to believe, that all property is really theirs.”
The psychology behind this type of police activity is meant to reverse the master-servant relationship, Whitehead said.
“That’s where the state now becomes the master and the citizen is the servant,” he said. “That goes against everything the Founding Fathers believed in with the Fourth Amendment.
“I hope this case is a good sign. Let’s hope. This was a pretty egregious case. But I’ve seen many that went the other way.
“We’re in a police state. The question is: Can something like a grand jury acting rationally reverse the trend of this type of police activity?”
In Burleson County, it could make the police and sheriff’s deputies think twice next time they decide to conduct a no-knock raid on a nonviolent suspect. But beyond that one county, the jury is still out.
“It’s going to take more than one grand jury, but this case is encouraging because it seems to be getting some press,” Whitehead said.
Burleson County District Attorney Julie Renken wouldn’t say if she’ll present the case again to a different grand jury.
Magee remains in jail on felony drug charges.
His bond has been lowered from $1 million to $50,000.