The entire Internet, it seems, calls for the arrest of the officers who killed Breonna Taylor at her home in Louisville, Kentucky.
The viral meme goes like this: take any topic and insert a reference to Taylor. For example, on the first day of the delayed baseball season, the Tampa Bay Rays tweeted: “Today is opening day, which means it’s a great day to arrest the killers of Breonna Taylor.”
But it is not so simple, in part because of a tangible legal doctrine that applies to Kentucky and 28 other states. There is no specific law in these jurisdictions that deals with police shooting in self-defense, which means that officers have the same rights and duties as any resident. Yet police have the unique power to initiate violence – such as knocking on the door of a private home in the middle of the night – that other people do not.
Taylor, a 26-year-old ambulance room mechanic, was struck by eight police bullets in March when officials tried to serve a no-knock arrest on her home during a drug investigation. Her friend, Kenneth Walker, first fired his gun, believing burglars entered her home and punched an officer in the leg. Officers returned fire. No drugs were found in the house.
Those circumstances make this case more legally unclear than it seems at first glance, said Seth Stoughton, a professor at the University of South Carolina School of Law.
“Most states do not allow anyone to claim self-defense if they are an aggressor,” he said. “But most states also say that if police act in their official capacity, they can not be aggressors for purposes of self-defense law.”
That both Walker and the police can reasonably account for self-defense, and the law makes it virtually impossible to define an ‘aggressor’ in the situation. A kind of self-defense stalemate that leaves many questions about what charges a prosecutor could bring in Taylor’s case – and may even lead to the end of the no-knock robbery in U.S. police.
‘Castle Doctrine’
Legal experts say the officers involved in the shooting of Taylor – Sergeant Jonathan Mattingly and officers Brett Hankison and Myles Cosgrove – could be arrested. Prosecutors give much discretion in their decisions to bring prosecutors, and “probable cause,” the legal standard of proof required for an arrest is “a very low bar,” said Colin Miller, a professor at the University of South Carolina School or Law investigating the Kentucky Criminal Code on behalf of attorneys representing Taylor’s family. “If you have a shooting death, it will be quite difficult to argue that in that case you can in any case not commit any kind of crime, whether it is manslaughter or threatening to threaten.”
Taylor’s case is complicated by the so-called ‘castle doctrine’, which traces the common English law of the 17th century. It gives people in every state except Vermont and Washington DC the right to use lethal force against an intruder in their home, without the obligation to retaliate. Under Kentucky law, these protections may not harm individuals from police officers entering their home, as long as officers announce to themselves that the homeowner must reasonably know that they were police officers. This is how Walker was first arrested and accused of attempting to murder a police officer for first opening fire. Those costs were lowered in May.
The officers in turn took rifle at a place where their search gave them legal permission to enter. That would apparently give her a justification for self-defense to shoot back into Taylor’s house. Thanks to the rulings of the U.S. Supreme Court, officials can invoke self-defense, even if their behavior was objectively unsafe or likely to provoke a violent reaction.
But the gunfire involved more than just the officers and Walker. Police fired more than 20 rounds at Taylor’s home, missing Walker and instead beating Taylor as she stood in her hall. Several of the officers’ bullets also entered a neighbor’s home, according to images shared by the Taylor family’s attorney and a civil lawsuit filed by the neighbor. The suit accuses the officers of ‘spraying’ bullets into the apartment complex ‘with a total disregard for the value of human life’.
Those facts open up another facet of the laws on self-defense, Miller said, and could argue for an indictment. Kentucky law specifically states that even if a person has a valid justification for self-defense, the protection does not extend to “willful” behavior – essentially defined as knowing that something is extremely dangerous and doing so in a reckless manner.
If a jury found that the officers’ conduct and conduct was willful, which directly caused the death of an innocent person, “then that murder is under Kentucky law, and self-defense would not be a viable defense,” Miller said.
Michael Mannheimer, a law professor at Northern Kentucky University, said a more realistic charge could be abuse, rather than murder. It’s a somewhat squishy distinction in state law, but in general, desperate murder charges require a thought of “expelled indifference,” which can be a steep bar.
‘This is not very technical, but the best way to think about it is: manslaughter is when you are reckless and you kill someone. Depraved indifference is when you are really, really smokeless and you kill someone, “Mannheimer said.
As an example, he said to imagine a person running into a volume room and shooting wildly in all directions, unprovoked. That reflects a more “drowned” state of mind than wildly shooting back after you are shot.
The differences in punishment as convicted are substantial: five to ten years imprisonment for manslaughter, but 20 years to life in prison for willful murder, which is technically also punishable by death.
‘This city will burn’
So far, only one officer, Brett Hankison, has been fired. The other two officers were temporarily taken off the street. In an affidavit, Louisville police officer Robert Schroeder said Hankison wrote a departmental policy on the use of lethal force, accusing him of ‘willonly and blindly’ firing 10 shots into Taylor’s apartment without a clear line of sight.
In a subsequent appeal, Hankison’s lawyer, David Leighty, denied the allegations, calling the arson a “cowardly act”. Leighty notes that the preliminary investigation did not even conclude which bullets from officers were still going where. He declined to comment further on the Marshall Project.
Lawyers for the other two officers did not respond to messages seeking comment.
The Taylor family has called for arrests of all three officers. But not everyone who protests Taylor’s death is rooted for arrests. Because the current moment in American policing is pushing talks about defending and abolishing police and the justice system in general, some activists are seeking accountability in other ways. Chenelle Helm, a co-founder of the Louisville Black Lives Matter Chapter, said she fully understands the concept of the officers’ arrests in Taylor’s case, but she is not affiliated with them because her organization is actively working to to dismantle the prison system.
“When we ask for the officers to be arrested, that is contrary to the abolition of work,” Helm said.
Four other Louisville activists are going on a hunger strike demanding that all three officers be fired and stripped of their future pension benefits.
Vincent Gonzalez, one of the attackers, was shocked about arrests as a desirable outcome. He said he was influenced by the same abolitionist ideas as Helm, and did not see the arrest of the officers as an all-and-all, but he also said that arrests would be gratification in some way. “It would mean so much to show some courage, make a statement and say that this is unacceptable behavior, and you are not allowed to do these things in our community,” Gonzalez said.
He also said he was concerned about civil unrest if the officers were removed.
“I hope I’m wrong,” Gonzalez said, “but if they do not make an accusation, this city will burn.”
Accused if not, Miller thinks the case could signal the death knell in America for the no-knock robbery, the practice by law enforcement agencies of burglary in a home without prior warning.
‘I just do not know if there is any realistic way you can proceed with warnings without knocking in a jurisdiction that has the Castle Doctrine and Stand Your Ground. It seems incompatible, ”Miller said.
Taylor’s case is simply the latest in a long series of premeditated deaths – of officers and civilians – that have occurred when officers in no-knock raids are met by an armed homeowner acting in apparent self-defense. Civilian volunteers have struggled with these problems for decades, and momentum seems to be growing.
Louisville City Council unanimously banned such robberies last month. U.S. House Democrats have also approved a bill that would ban no-knock warrants in federal law and strip local police departments of non-compliance. Kentucky Senator Rand Paul has also proposed a House bill that would do the same.
Both Paul’s bill and Louisville’s ban on robberies with no knock have been mentioned for Breonna Taylor.
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