Why are Breonna Taylor's killers free?

July 3, 2020 8:23 AM

I had it generally described to me that essentially they were operating in the scope of their duties as police officers. But I'm looking for a comprehensive evaluation of the issue, or someone who feels knowledgeable about the situation.

Even when the one officer was fired, that was some kind of weird process with the press conference being something akin to 30 seconds long, and cryptic. The prosecutor in the area has been heavily criticized for not only not having charged them with crimes, but also seemingly being carefree in the midst of it. Has anyone seen any articles that explain the legal issues behind everything, or the prosecutor's actions, or what angle they're going for? Her boyfriend is a living witness, so it would seem like he could testify that they announced themselves or didn't, and the apparent way they filed their paperwork afterward seems to leave an opening for at least some kind of charges to be filed. I don't get it.

posted by cashman to Law & Government (8 answers total)

"Federal officials are working “urgently and expeditiously” to investigate possible civil rights violations by the Louisville officers who fatally shot Breonna Taylor, Kentucky's top FBI agent said Wednesday. [...] The FBI is coordinating with state Attorney General Daniel Cameron’s office, but both are conducting independent probes, he said." (Associated Press, July 1, 2020)
posted by katra at 8:50 AM on July 3, 2020

Qualified immunity is a term you’ll run into. I don’t pretend to know a lot about it, but as a search term it’ll be helpful. Also, sadly, prosecutorial discretion.
posted by kevinbelt at 8:54 AM on July 3, 2020 [1 favorite]

Best answer: At a very high level, there is no obvious crime in a police officer barging into the wrong house on a no-knock warrant and then responding in self-defense to gunfire. From a strictly legal perspective, there are at least three police officer actions that occurred on March 12/March 13 that may or may not result in prosecution:

1. A (highly questionable) no-knock warrant for Breonna Taylor's residence was issued.
2. Breonna Taylor's house was entered on that no-knock warrant.
3. In response to gun-fire from Kenneth Walker, three officers respond blindly with 25+ bullets, killing Breonna Taylor.

Discussing each of these individually:

1. The warrant was not issued by any of the police officers at Taylor/Walker's residence - it was issued by Detective Joshua Jaynes. Among other details, this warrant claimed consultation with the USPS postmaster (who denied being consulted) and gave no justification for a no-knock entry beyond the notion that drugs were involved and a claim that all drug dealers are dangerous (this broad characterization of drug dealing to justify no-knock warrants has been rejected by the Supreme Court). It was a poorly written warrant. However, it was not something that was caused by the killers. Further, (unfortunately) these sort of no-knock warrants are issued regularly, so despite being legally incorrect, it is by far not unprecedented.
2. The police officers likely lied about the execution of the warrant and then poorly document the circumstances of the execution of the warrant. However, they were executing a then-valid no-knock warrant, so at most this particular action can be legally construed as is falsifying reports. Although falsifying these reports is likely actionable as a police administrative issue, normally this would not result in a rapid arrest or even any arrest.
3. After discussing 1) and 2), the actual killing comes down to self-defense. Again, from a strictly legal perspective, the officers were faced with danger (one unidentified having unquestionably been shot in the leg) and responded in self-defense. At least one of these officers - Brett Hankison - did so in a (brutal) way that violated Louisville city police officer standards, so was fired as a result. However, the actual act of self-defense is protected by law, so it would be very difficult to say this is arrest-worthy right now.

Breonna Taylor's killing is evidence of systematic racism in policing. It's evidence of the level of protection police have due to police contracts - a common standard (even outside Louisville) is "indisputable evidence of wrongdoing" to suspend a police officer without an investigation completing. The individual actions in her killing were not themselves obviously criminal. I suspect some will be ruled so later due to the investigations alluded to by katra, but our legal system provides vast protections for those (police or not) who are not yet charged with a crime. It's clear that "something is wrong" in our legal system for all of this to occur without an obvious crime. I encourage you to continue to criticize our police system for police brutality. At the end, though, in our current legal system, it's hard for our system to call the police officers criminals worthy of arrest prior to a criminal trial.
posted by saeculorum at 9:00 AM on July 3, 2020 [57 favorites]

What saeculorum said.

(Note that qualified immunity applies to civil cases only; it will undoubtedly be invoked in any civil cases brought by the family.)
posted by praemunire at 9:02 AM on July 3, 2020 [1 favorite]

Best answer: This does not explain the weeks that went by immediately after the officers killed her, during which her boyfriend was charged (which we can chalk up to racism, corruption, lying officers, thin blue line, difficulty of prosecuting a tricky case, etc).

But since then, there has been some behind-the-scenes fight going on between the police force (LMPD) and the state AG’s office related to closing out the investigation before it could proceed to the AG team for evaluation of whether to bring charges. The two groups were sniping at each other in the press about whether LMPD has finished its investigation or not. (An example of how the LMPD, the state AG, and government officials like the Mayor may be at cross-purposes here, all with different motives.) In a way, one answer to your question is the national spotlight, which, while effectively pushing for action, is also leading to the kind of turf fighting we often see in high-profile matters in law enforcement and politics.

The LMPD “not finished yet” issue may also be related to an ongoing lawsuit from the Louisville Courier-Journal under state public disclosure laws requiring the LMPD to turn over its records if requested after an investigation is closed. Although this is confusing because it conflicts with the statements they were making vis a vis the state AG’s office fight.

However, I do find something encouraging in the LMPD’s firing of Officer Brett Hankison, as part of which the LMPD said: “your actions displayed an extreme indifference to the value of human life when you wantonly and blindly fired ten rounds into the apartment of Breonna Taylor.” Under Kentucky law, “A person is guilty of murder when: ... Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”
posted by sallybrown at 9:10 AM on July 3, 2020 [5 favorites]

Some of the broader legal issues are discussed here: Hold Police Accountable by Changing Public Tort Law, Not Just Qualified Immunity (Paul Stern, Lawfare, Jun. 24, 2020), and kliuless posted a lot of links about qualified immunity here.
posted by katra at 9:18 AM on July 3, 2020 [1 favorite]

Also, the issue you mention about the prosecutor being carefree...saeculorum’s post explains the hurdles a prosecutor faces here. But I differ a little in thinking there are a lot of reasons why a theoretical prosecutor would think this is a case worth making, even with the challenges. Not even just for pure motives like justice, but for reasons of ambition or the intellectual challenge of it. While I don’t think it’s really fair to criticize the prosecutor for having a life outside work (but then I mean, life wasn’t really fair for Breonna Taylor?), some of the issue of him seeming less than burdened by the case is it makes people suspect he’s not feeling driven or compelled, maybe a sign that this challenge doesn’t interest him and he would rather do the simpler thing.

(And to echo praemunire, the doctrine of qualified immunity is not related to the criminal charges OP is asking about.)
posted by sallybrown at 9:38 AM on July 3, 2020 [1 favorite]

The laws and legal procedures were created under, and help perpetuate, oppressive systems, cultures and institutions that makes police violence difficult or in some cases impossible to charge criminally, even if it's wrong.

However my understanding as a layperson is that qualified immunity is not applicable to this question. It is a term revering to the dismissal of cases seeking monetary penalties from individuals working for the government, including police, who are accused of violating civil rights.
posted by gryftir at 8:32 PM on July 3, 2020