breonna taylor

The Legal Response to Breonna Taylor's Death Shows How Drug Prohibition Transforms Murder Into Self-Defense

The hail of bullets that killed her can be justified only in a country that uses violence to enforce politicians' pharmacological prejudices.

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Three Louisville, Kentucky, police officers executed the fruitless drug raid that killed Breonna Taylor, an unarmed 26-year-old EMT, in the middle of the night on March 13. But just one faces criminal charges, and those charges have nothing to do with Taylor's death.

State prosecutors concluded that the two other officers were justified in returning fire after Taylor's boyfriend, Kenneth Walker, shot one of them in the leg. Yet local prosecutors decided not to pursue an attempted murder charge against Walker.

Those seemingly contradictory decisions reflect Kentucky's standards for self-defense, which make it possible that Walker and the cops were both legally justified in using deadly force. But that puzzling situation also has to be understood in the context of the war on drugs, which frequently involves armed home invasions that invite potentially deadly confusion. That unjustified violence is the root of the problem highlighted by Taylor's senseless death and the unsatisfying legal response to it.

Yesterday a grand jury charged Detective Brett Hankison with three counts of wanton endangerment in the first degree for blindly firing 10 rounds from outside Taylor's apartment. At a post-indictment press conference yesterday, Kentucky Attorney General Daniel Cameron noted that Hankison fired through a sliding glass patio door and a bedroom window, both of which were covered by blinds or curtains. Some of those bullets entered the unit behind Taylor's, which was occupied by a man, a pregnant woman, and a child. Hence the three counts of wanton endangerment.

When acting Police Chief Robert Schroeder fired Hankison in June, he said the detective "displayed an extreme indifference to the value of human life" by "wantonly and blindly fir[ing] 10 rounds" into Taylor's apartment. Schroeder's language tracks Kentucky's definition of first-degree wanton endangerment, which happens when someone "wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person" in "circumstances manifesting extreme indifference to the value of human life." That's a Class D felony, punishable by up to five years in prison for each count.

Cameron said "there's no conclusive evidence" that any of the rounds fired by Hankison struck Taylor, who was hit six times. According to "medical evidence," the attorney general said, just one of those bullets was fatal, and it would have killed Taylor within two minutes. While a state ballistic analysis could not determine who fired the fatal shot, the FBI's lab concluded that it came from Detective Myles Cosgrove's gun. Cosgrove fired 16 rounds at Walker and Taylor, and Sgt. Jonathan Mattingly, the officer who was hit in the leg, fired six. So in response to a single bullet fired by Walker, the three officers fired a total of 32 rounds.

Although prosecutors concluded that Hankison's behavior was criminally reckless, they determined that Mattingly and Cosgrove acted legally in self-defense. "Our investigation found that Mattingly and Cosgrove were justified in their use of force after having been fired upon by Kenneth Walker," Cameron said. "According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves. This justification bars us from pursuing criminal charges in Miss Breonna Taylor's death."

How did Cameron reach that conclusion? He did not examine the genesis of the dubious search warrant that the three officers were serving, an issue the FBI is still investigating. He began with the premise that Mattingly, Cosgrove, and Hankison were acting in good faith based on information provided by others and executing a warrant they believed was lawful. He also accepted their account that they knocked on the door and announced themselves, notwithstanding a warrant that authorized them to dispense with that step.

Although there is no video of the raid, Cameron said, "evidence shows that officers both knocked and announced their presence at the apartment. The officers' statements about their announcement are corroborated by an independent witness who was…in proximity to [Taylor's apartment]. In other words, the warrant was not served as a no-knock warrant."

After knocking and receiving no response, Cameron said, the officers used a battering ram to break in the door. Mattingly, "the first and only officer to enter the residence," saw a man and woman standing next to each other "at the end of the hall." The man "was holding a gun, arms extended, in a shooting stance." Mattingly "saw the man's gun fire, heard a boom, and immediately knew he was shot as a result of feeling heat in his upper thigh." Mattingly "returned fire down the hallway," while Cosgrove, who "was also in the doorway," opened fire "almost simultaneously." All of this "took place in a matter of seconds."

On these facts, the legal analysis is straightforward. Kentucky allows someone to use deadly force when he "believes that such force is necessary to protect himself against death [or] serious physical injury." It was reasonable for Mattingly and Cosgrove to believe that in the circumstances described by Cameron.

Now let's look at the situation from Walker's perspective. He and Taylor were asleep when the cops, who were wearing plain clothes rather than uniforms, approached the apartment around 12:40 a.m. Walker said he heard someone banging on the door for 30 seconds or so but did not hear any indication of who was there. The New York Times interviewed "nearly a dozen" neighbors, and only one "reported hearing the officers shout 'police' before entering." That neighbor might be the "independent witness" mentioned by Cameron.

Even if the cops did shout "police," that announcement could easily have been missed by someone who had just been rudely awakened in the middle of the night. Walker said he grabbed his gun because he believed criminals were breaking into the apartment. That is consistent with the alarmed telephone calls he made that night, including a 911 call in which a distraught Walker said, "I don't know what's happening. Somebody kicked in the door and shot my girlfriend."

You can begin to see why local prosecutors, who initially charged Walker with attempted murder of a police officer, dropped that charge in May. Under Kentucky law, a person who uses deadly force in defense of a dwelling is "presumed to have held a reasonable fear" of "death or great bodily harm" when he "had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred."

There is an exception to that presumption when force is used against a police officer who enters a residence "in the performance of his or her official duties" if "the
officer identified himself or herself in accordance with any applicable law or
the person using force knew or reasonably should have known that the person
entering or attempting to enter was a peace officer." In this case, there is a dispute about whether the cops identified themselves, and it is pretty clear that Walker did not know they were police officers. Nor is it reasonable, given the circumstances, to think he "should have known" that. And even without the presumption of "reasonable fear" for people attacked at home, Walker could have made a compelling case that he acted in defense of himself and his girlfriend if prosecutors had decided to try him for attempted murder.

Legalities aside, it is clear that Mattingly, Cosgrove, and Hankison were the aggressors in this situation. The warrant that authorized their home invasion was based purely on guilt by association: Taylor's continued contact with an ex-boyfriend who was arrested for drug dealing that same night. The warrant was served in a reckless manner, using tactics that have led to fatal misunderstandings in cities across the country over and over again. And it was based on the immoral assumption that violence is an appropriate response to peaceful activities that violate no one's rights.

Earlier I said Walker "believed criminals were breaking into the apartment." It would be more accurate to say that criminals were breaking into the apartment—a reality that everyone would recognize but for the war on drugs. Taylor's death has been widely cited as an example of police abuse—actions that exceed the bounds of the law. But the real horror is what the law allows in the name of stopping Americans from consuming arbitrarily proscribed intoxicants.