Chinks in the Armor of Justice

Chinks in the Armor of Justice; Lessons Learned from Breonna Taylor

Bad facts make bad law.  We don’t have many facts in this case, and that’s a big part of the problem.  Breonna’s death is a huge tragedy.  The question is, was it preventable?  For both the benefit of the police and of potential victims, are there legislative or procedural changes that can make situations like this preventable in the future?  There a lot of factors that weigh in on this question.  And it’s hard to make valid judgments without all of the facts.  Based on what we do know, here are the biggest factors that matter; here are the chinks of the armor of justice:

The WARRANT:

Transparency: Any served warrant should be part of the public record, available for anyone to view.  In this case, it’s possible that the warrant was deemed part of all the other evidence in this investigation, and therefore not released to public until all investigations in this matter are over.  This is standard police/court procedure.  The question is this lack of transparency ethical?  Maybe.

Validity: Who wrote and then signed the affidavit based on possibly questionable evidence?  How valid was their evidence that drugs, cash, or weapons would be in that home?  Was the warrant even really a no-knock warrant?  If so, what was the evidence that strong enough to necessitate the expediency of an all-hours no-knock warrant?  Should all-hours, no-knock warrants be legal in these situations? Should either the police officer who wrote the affidavit, or the judge who signed it, be held partially culpable for Breonna’s death?  This is partially what the federal investigation will be determining.

Followed in Good Faith:  Once a warrant is signed and issued, police officers are bound to follow it.  They are assuming in good faith that it is a legal, valid warrant.  So was the warrant followed exactly by the police officers this time? This is a big deal because this is where qualified immunity comes in.  Their actions in following the warrant in good faith are deemed legal based on the 4th Amendment.  However, if they didn’t obey all details of the warrant correctly, then the officers could be held liable.

Warrant details: Again, this is why transparency is so important.  A warrant will tell them specifically WHEN they can search (anytime, or specific time range), WHERE on the property, WHAT they’re allowed to search, and HOW they can search (no-knock or announce?)  This is how we (and the grand jury) can tell if the Police’s actions (based on the validity of their incident report) match up with what the warrant said they were legally allowed to do.

MORE POSSIBLE CHINKS:

In Uniform or Not: Were the police officers in uniform or plain clothes?  Even though this seems to be a big deal, it doesn’t make a difference legally. The question is, should it?

Knock vs. No-Knock: Did the police officers knock and announce, and just weren’t heard?  Or did they force entry without knocking?  This only makes a difference legally if their actions don’t match the specifications of the warrant.  And even if it wasn’t a “no-knock” warrant, there are still some exceptions that legally allow them to force entry (like danger to the area).

The Boyfriend: Breonna’s boyfriend was licensed to carry, and shot at who he believed were dangerous intruders.  Does he have that right?  Were his actions legal, even though he shot an officer in the leg?  Yes.  However, the boyfriend was still initially charged for his actions.  They were dropped, but only after huge public outcry.

Self Defense vs. Excessive Force: The police then started shooting back to defend themselves.  Do they have the legal right to defend themselves on someone else’s property which they forced themselves onto?  Yes.  Does it take 32 bullets (amongst 3 officers) to defend yourself?  Not sure.  We don’t know how many shots the boyfriend fired in proportion.  How many bullets does it take to be considered excessive, into the realm of attack instead of defense?  Each State and police department have their own policies and procedure delineating self-defense vs. excessive force.  Kentucky Statute 503.090 suggests that they are most likely justified in their actions in this case, especially because an officer was shot.

Duty to Render Aid: After the gun firing stopped, and Breonna was shot, no life saving aid was given.  Are there legal protocols in Kentucky for offering life-saving aid in shooting incidents like this?  If there is a duty to render aid, it would only be a local police policy, and the lack of aid would not be a criminal statute.  Is the lack of aid ethical, does this need to be legislated?  Maybe.

Body Cameras:  Police either weren’t wearing their body cameras (because they were in plain clothes?) or they didn’t have them turned on.  They violated their own police policy in doing so, but there are no criminal mandates as of yet, only in-house department discipline instead.

Incident Report:  The officers reported that they did not force their way into the apartment.  Witnesses and crime scene photographs show they did.  The officers listed Taylor’s injuries as “none.”  This could be classified as a Class A misdemeanor for falsely reporting an incident (519.040).  Perjury only applies if they claim these falsehoods in a sworn statement under oath.

Grand Jury:  Why a grand jury to begin with?  In Kentucky, all Felony charges go through a Grand Jury first.  Grand Jury is the charging process to determine whether there is enough evidence to justify going through the rest of the court process.  Are Grand Juries public?  No.  Will the transcripts be made public soon?  Not until the rest of the criminal court procedures are complete.  Most likely the evidence, interviews, transcripts, and warrant won’t be made public until all criminal court procedures are complete, including federal.  This is to protect potential jury members and witnesses from being biased from such public knowledge.

POSSIBLE CHARGES, Kentucky Revised Statutes:

What are the possible charges when someone’s actions result in another’s death?  And what may apply? (the definition of wanton = deliberate and unprovoked)

Murder (507.020): The requirement for this charge isn’t met because “intent to cause death” has to be proven.  The police officers weren’t going there purposefully wanting to kill anyone.  It might be said that the one officer “wantonly engages in conduct which creates a grave risk of death,” but again, since his bullets didn’t kill Breonna, this doesn’t apply either. (Class A Felony)

Attempted Murder (506.010): This applies if an officer’s bullets didn’t actually strike their target, but their actions/words show they had tried to kill.  Again, intent needs to be proven, so this charge doesn’t really apply because the officers weren’t purposefully trying to kill Breonna. (Class B Felony)

Manslaughter, 1st degree (507.030):  This is the intent to cause physical injury, resulting in death. Or the intent to cause death, but because of an extreme emotional disturbance. This again doesn’t apply because the two officers who shot Breonna didn’t have intent or extreme emotional disturbance.

Manslaughter, 2nd degree (507.040):  This is when someone wantonly causes the death of another person (i.e. reckless use of a motor vehicle, leaving a child in hot car, dispensing lethal drugs, etc.)  There could be arguments that this applies to the officer who fired the fatal shot, but would be nearly impossible to prove, especially given that he didn’t shoot first.

Reckless Homicide (507.050): This is when reckless actions causes death of another person.  Again, there could be arguments that the officer who fired the fatal shot, but only if it could be proven that he was reckless with the use of his firearm, and that doesn’t seem to apply. This can’t apply to either of the other officers because their bullets didn’t cause Breonna’s death.

Wanton Endangerment, 1st degree (508.060): This is when someone manifests extreme indifference to the value of human life, or who’s conduct creates a substantial danger of death or serious physical injury.  This carries the same penalty as reckless homicide (Class D Felony).  This is what Officer Hankison was charged with, not in behalf of Breonna, but for her three neighbors.  Why not Breonna?  Legal precedence says that he was legally justified to shoot into her apartment in self-defense.  Should law or police policies be changed to make a shooting like this not legally justified?  Maybe.

Wanton Endangerment, 2nd degree (508.070): This is when someone causes substantial danger of physical injury to another (this is only a Class A Misdemeanor).  Again, the claim of self-defense protects these officers from this charge.

Explaining the chinks in the armor of justice may help us know how to petition to our lawmakers and police departments for the specific change needed.  We’re hoping to funnel our destructive negative energy surrounding this case into a more productive energy to enact positive, and specific change.  We have one of the best justice systems in the world, but that doesn’t mean that there isn’t room for improvement.  The ultimate goal in any procedural or legislative changes would be to better protect citizens and police officers alike.  The wish is to prevent future heartache like this from happening again and providing more equitable justice for all.

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