Myles Cosgrove, a Louisville, Kentucky, detective who participated in the fruitless and legally dubious drug raid that killed Breonna Taylor last March, told investigators the incident unfolded so quickly that he was not consciously aware of using his gun. That detail, which emerged from audio recordings of grand jury proceedings that were released on Friday, is alarming in light of the fact that Cosgrove fired 16 rounds—including the fatal bullet, according to the FBI's ballistic analysis.
"I just sensed that I've fired," Cosgrove said in an interview that was played for the grand jurors. "It's like a surreal thing. If you told me I didn't do something at that time, I'd believe you. If you told me I did do something, I'd probably believe you, too."
Cosgrove was responding to a single round fired by Taylor's boyfriend, Kenneth Walker, who has consistently said he thought he was protecting Taylor and himself from dangerous criminals. That bullet struck Sgt. Jonathan Mattingly in his left thigh. But Cosgrove said he was "overwhelmed with bright flashes and darkness," which led him to believe "there's still these gunshots happening due to those bright lights."
At a press conference last month, Kentucky Attorney General Daniel Cameron said Mattingly fired six rounds after he was hit, which may account for Cosgrove's mistaken impression that someone inside the apartment was continuing to shoot at him and his colleagues. Cameron said Mattingly and Cosgrove fired "almost simultaneously" at Walker and Taylor, who was unarmed but standing next to Walker "at the end of the hall."
A third officer, Detective Brett Hankison, blindly fired 10 rounds from outside the apartment, an act of recklessness that led the grand jury to charge him with three counts of wanton endangerment. Some of Hankison's rounds entered the unit behind Taylor's, which was occupied by a man, a pregnant woman, and a child. Hankison is the only officer who faces criminal charges in connection with the raid. State prosecutors concluded that the other two officers legally used deadly force in self-defense.
Cosgrove's description of the incident does not necessarily cast doubt on that conclusion, but it does underline the dangers inherent in the armed home invasions that police routinely use to enforce drug prohibition. Those dangers include not only the well-known risk that residents will mistake cops for robbers but the possibility that police will mistake their colleagues' gunfire for an assault by their targets. In such chaotic circumstances, there is also a risk that police will be injured or killed by friendly fire.
The plainclothes officers were serving a warrant based on Taylor's continued contact with an ex-boyfriend who was arrested for drug dealing the same night. They approached her apartment around 12:40 a.m. Although the warrant authorized the cops to break in without knocking or announcing themselves, they claim they did both. According to Cosgrove, they waited about 90 seconds before using a battering ram to force entry, beginning with "gentle knocking" and escalating to "forceful pounding," eventually accompanied by cries of "Police!"
Cameron accepted this account. That was an important determination, since Kentucky's law allowing the use of deadly force in defense of a dwelling makes an exception for armed resistance to a police officer who enters a home "in the performance of his or her official duties," but only 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 an interview played for the grand jurors, Walker said he and Taylor were watching a movie in bed at the time of the raid. He said he was "scared to death" when he heard the pounding on the door, which by his reckoning lasted for 30 seconds or so. "Who is it?" he and Taylor yelled, according to his account; he said they heard no response. The New York Times reports that "11 of 12 witnesses on the scene that night said they never heard the police identify themselves," while "one of them said he heard the group say 'police' just once."
Cameron said "the officers' statements about their announcement are corroborated by an independent witness." Last week, however, the Louisville Courier-Journal reported that the "independent witness" initially said he heard no announcement. "No, nobody identify themself," he told police on March 21. When investigators talked to him again on May 15, he changed his story, saying he heard the officers announce, "This is the cops."
Whichever version you credit, it is completely plausible that Walker did not realize the armed men invading the apartment were police officers. He reported a break-in during phone calls that night, including a 911 call after the shooting in which a distraught Walker said, "I don't know what's happening. Somebody kicked in the door and shot my girlfriend." In these circumstances, it is not surprising that local prosecutors, who initially charged Walker with attempted murder of a police officer, dropped that charge in May.
In a New York magazine post, Zak Cheney-Rice says Cameron seems to have "lied multiple times" when he explained why neither Cosgrove nor Mattingly were charged in connection with Taylor's death. In addition to accepting the cops' self-serving account of what they did before using the battering ram, Cheney-Rice notes, the attorney general said "the grand jury agreed that Taylor's death was justified."
During his post-indictment press conference, Cameron said "our investigation showed, and the grand jury agreed, that Mattingly and Cosgrove were justified in their return of deadly fire after having been fired upon by Kenneth Walker" (emphasis added). But he also made it clear that his prosecutors determined that charges against Mattingly and Cosgrove were not legally viable. "According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves," he said. "This justification bars us from pursuing criminal charges in Miss Breonna Taylor's death."
Since that is the way Cameron's office framed the issue, it is hardly surprising that the grand jury did not approve charges against Mattingly or Cosgrove. But it is clearly a stretch to say "the grand jury agreed" charges were inappropriate; that is what state prosecutors, who dominated the proceedings as the only legal experts who offered an opinion on the matter, told the jurors. Accepting that guidance in the absence of an alternative legal theory is not quite the same as agreeing with it.
The distinction struck at least one of the jurors as important. Last week that unnamed juror filed a motion seeking the public release of the grand jury record so that "the truth may prevail."
That truth includes not just Hankison's recklessness, which was glaring enough to justify criminal charges, but the gratuitous risks that all of the officers took that night. The Times notes that Hankison "had not anticipated a firefight" because he "expected one unarmed woman, who had no criminal record, to be home alone." In a saner world, that expectation would have cast doubt on the tactics that police decided to use, even leaving aside the weak excuse of a search warrant that was built entirely on guilt by association.
Based on scant evidence and the immoral logic of the war on drugs, these officers created the situation in which Cosgrove found himself reflexively firing 16 rounds down a dark hallway. When a terrified man had the temerity to defend himself against a bewildering home invasion, Cosgrove and his colleagues responded with overwhelming force, firing a total of 32 bullets. The legal determination that 22 of those rounds were justified should not blind us to the fact that whole operation was a travesty from beginning to end.