The Murder of Breonna Taylor

Someone, a non-lawyer, put it succinctly. How do police break into a person’s home and kill a sleeping woman and it’s not murder? As lawyers and judges, we know the answer to the legally ill-framed question. We can explain how warrants work, knock or no-knock, when needlessly executed late at night when people are asleep and processing the sounds to understand what’s happening is extremely problematic.

We can explain the Castle Doctrine that makes it lawful for a resident to defend his home when someone breaks in at night. We can explain that the police are given special latitude in order to do their job, including the authority to return fire after they’ve done a substantively inadequate job of alerting the residents of their identity, if they did at all, to avoid the resident from believing they’re burglars (or ex-boyfriends) and pulling out a lawful gun to protect lives.

We can explain why, as the cops are legally justified in returning fire, the bullets that ended in the body of a sleeping woman are, literally, collateral damage. We somehow manage to accept, as a mantra, that tragedies will happen sometimes. It can’t be helped, we tell ourselves so we don’t have to come to grips with the dead woman who should be alive.

David French does a decent, if unsatisfying, review of the Supreme Court rulings that enable the law we lawyers explain. The points he makes aren’t wrong as much as inadequate, as they are presented for advocacy. French tells us about how they go wrong, can be abused, but omits the times when police take down bad dudes. When an innocent sleeping woman is killed in her bed, we don’t think about how the same laws allow cops to go after vicious killers as well.

But Breonna Taylor was no vicious killer. And her boyfriend, Kenneth Walker, was no criminal at all, but a guy defending his home, and his girlfriend. Had it not been cops, he would be a hero instead of the guy whose shot justified a barrage of police bullets in return. And cost Taylor her life.

A Daily News editorial summed it up:.

It is easy to say Taylor’s death was caused by error upon error upon error, but it was actually the system functioning as intended, with wanton disregard for a stolen life. Few are guilty, but all are responsible.

There were plenty of “errors” preceding the 1 am raid, from potentially false information in the warrant application to authorizing a no-knock entry based on the most generic allegation, inadequate under law. Kentucky law doesn’t limit the execution of a warrant to daytime absent authorization for a night time raid, which is inherently rife with the potential for violence.

But while these errors, or abuses, or the largely unnoticed failure of the issuing magistrate to have bothered with doing the job of vetting the warrant before signing it, this was not the system “functioning as intended.” The system presumes that each of the players in the drama that follows did their jobs properly, fully and in good faith.

The system favors warrants over warrantless action by giving cops significantly broader latitude as an incentive to comply with the Fourth Amendment rather than circumvent it. A warrant is like a legal suit of armor protecting cops from whatever they do in the course of its execution, provided you don’t recklessly shoot into the wrong apartment.

The system tries to thread the needle by giving cops the room to do their job in difficult circumstances, when the people in the apartment are bad dudes, are violent, are inclined to kill cops and might well have ended very differently but for the fact that neither Walker nor Taylor were the sort of people who posed any threat to police of their own volition.

But the system does have “wanton disregard” for the innocent. It can’t accommodate every scenario and relies on the police and the magistrate signing off on the warrant to distinguish between what happened here and what happens when the target is the bad dudes courts think about when they frame these rules that empower the police to never have to worry too much about who gets killed, as long as it’s not them.

People will battle over the details of what happened here, based not on knowledge since they weren’t there, but on what they’ve read or heard, internalized as if it’s gospel. To a large extent, the differences aren’t necessarily salient. If Walker didn’t know they were cops, whether because they didn’t knock loud enough, say “police” in a stentorian voice, or because he was fast asleep and only heard some random incomprehensible noise coming from the door, it doesn’t matter really. If he knowingly fired at police, it would be different, but as reflected in his 911 call, he had no clue that the people breaking into the apartment were cops, and there was no reason a good guy like Walker would knowingly shoot a cop anyway.

And isn’t it Walker’s right to defend himself and Breonna Taylor?

As lawyers and judges, we know that the law precluded the two cop shooters from being charged with murder. We know the rationale behind the law at each step in the process. We may even know other cases where the law was used properly and served socially beneficial purposes. But the woman who knew nothing of the law asked the right question: How do police break into a person’s home and kill a sleeping woman and it’s not murder?

For all our legal brilliance and our deep thoughts about rationales as we piece together this Rube Goldberg machine of the law, we forget that it’s ultimately about saving people from harm and not inflicting it on the innocent as collateral damage in the process. The zeal with which police go after crime, particularly in the War on Drugs and particularly when the job becomes untethered from why the job exists in the first place, led to the death of Breonna Taylor.

When the price of law enforcement is the needless killing of innocent people, all our legal excuses fail. The two cops aren’t guilty, and we are responsible.

42 thoughts on “The Murder of Breonna Taylor

    1. Guitardave

      Thursday twofer…

      It’s easy to forget
      Not everything is up for grabs
      Easy to acquit
      When institutions don’t regret

  1. delurking

    One officer was indicted for “wanton endangerment” for blindly firing rounds that entered another apartment. So, is it OK to blindly fire rounds into the apartment they just entered? After all, they didn’t shoot the guy with the gun, they shot Breonna Taylor in her bed. It appears that the de facto state of the law today (at least in Louisville) is that if a police officer gets shot at, police can shoot anyone they can see and it isn’t a crime. It is only if the bullet goes through a wall that it is a crime. This is nonsensical. The individual officers are certainly morally responsible for Breonna Taylor’s death. As you say, are the rest of us are too, but to a much lesser degree. The officers are murderers, we are not.

    1. SHG Post author

      This was a perspective for lawyers, who have the advantage and disadvantage of not suffering from abject ignorance. For anyone else inclined to spew idiocy into this thread, take it elsewhere. I’ve had enough ignorance for a while.

      1. Keith

        Ignorance (or lack thereof) isn’t required to understand why a illogical syllogism fails.
        Some of us like reading and comprehending without the baggage a JD brings.

        Sadly, the nature of the Rube Goldberg machine means that the parts we see don’t show the entire picture, making it virtually impossible for those unwilling to take a deep dive to possibly understand what it will take to provide actionable responses to our “leaders”.

        1. SHG Post author

          Explaining the myriad nuanced details that immediately run through a lawyer’s head in analyzing a fact pattern isn’t the sort of thing that comes easily to a non-lawyer. Sometimes, the non-lawyer can see something that the lawyer doesn’t, because they aren’t bogged down by the nuances. Sometimes, the non-lawyer sees nothing of worth. Often, it can be the same non-lawyer.

      2. Sgt. Schultz

        Why didn’t you trash this comment? Was it worth it to cut Delurking a break and introduce this nonsense into the comments?

  2. B. McLeod

    Most of the media have given up on the version where Breonna Taylor was killed in her sleep. As far as the rules covering collateral damage, there are still good reasons for the rules. We accept the collateral damage because we don’t have workable rules that could guarantee its non-occurrence. Officers need to be able to return fire when fired upon. Sometimes that goes badly. Charging the officers with murder would not fix anything.

    1. delurking

      It is irrelevant if Breonna Taylor was asleep or not. She was unarmed. We could have workable rules that dramatically decrease the likelihood of this type of tragedy. That would mean that some guilty people don’t get arrested, because police don’t do the things they did that night. A simple rule would be that if you kill an unarmed, non-threatening person, it is a crime. Yes, would mean that you can’t unleash a barrage of bullets in the general direction of someone with a gun, when there are other people around. Police would change their practices if that were the rule.

      We tolerate that guilty people go free when evidence is collected in violation of a suspect’s fourth amendment rights, because the value of those fourth amendment rights outweighs the crime we suffer as a result of maintaining them. We can choose to restrict the authority of police further, and accept the trade-offs. Charging these particular officers with murder may or may not be feasible, given the current state of the law. Changing the law is feasible, and reasonable.

    2. SHG Post author

      Of course cops need to be able to return fire. They do not, however, need to put themselves into situations where returning fire (which will be an increasingly normal thing give the Castle Doctrine and the ubiquity of lawfully possessed guns) is necessary under circumstances where there is no extremely strong societal and law enforcement reason to give rise to the risk of violence.

        1. SHG Post author

          The cops weren’t thrust into a situation prone to violence. They chose it. They can chose differently, like coming at dinner time, and only after a serious effort to announce, heard by everyone within ten blocks, enter by force if entry by force is justified at all.

      1. Vincent Morrone

        I recall someone on twitter, and it may have been you Scott, remarking once about a case where a cop shot a young woman through a windshield of a car because she was driving away while he was on the hood. It’s very possible, in that moment, he had no choice but to fire to protect his life. But he also could have made the decision not to do a TJ Hooker and jump on the hood.

        Here, the entire fault of what went wrong doesn’t belong solely to the cops who fired the bullets, which is why they can’t be held at fault legally. That doesn’t make it any better, nor does it make Breanna Taylor any less dead.

  3. Erik H

    If they hadn’t served the flippin’ warrant at 1AM this wouldn’t have been an issue. And if they had focused on “trying to wake them and get them to the door” instead of “trying to get in the house as fast as possible” then this would also not be an issue.

    We need something akin to a “10 minute rule.” If the goal is not to obtain forced entry then any normal individual would pound on the door, use a bullhorn, knock on all the windows both front and back; shine lights in the house; and continue that for a solid 10 minutes before entry; and would spend another minute screaming “POLICE THIS IS A WARRANT” through a megaphone before they move past the entryway.

    Yes, we would lose some evidence. But we would shoot way fewer people so that is a good trade.

    1. SHG Post author

      Those are some tweaks that might have changed the scenario to avoid creating the gravest likelihood of violence. But losing evidence is one, but not all, of the reasons for no-knock or night time warrants. Your point, however, that the cops had alternative methods available that would both accomplish the goal of the warrant without creating a needless risk of violence and death is a good one.

    2. B. McLeod

      A great deal of speculation there. Also, there will be a great many situations in which this approach will be problematic and actually enable armed resistance. Like the knee-jerk ban on all no-knock warrants, seat-of-the pants proposals like these would likely lead to further problems via the ass-biting rule of unintended consequences.

      1. Erik H

        Is that someone else’s knee jerking? I did not, and do not, suggest eliminating no-knock warrants. They are a dangerous tool, true, and one which can be abused. But so are a lot of necessary tools. I support careful oversight rather than total denial.

        And for someone who apparently decries speculation, where the hell are you pulling “will be problematic” and “enable armed resistance” from? That requires, among other things,
        i) reason to believe there will be a material difference in armed resistance between the “normal” knock-and-announce response and an “extended” knock-and-announce response; and
        ii) the assumption that any difference will outweigh the potential reduction in improper use of police force.

        1. B. McLeod

          It was the City of Louisville’s knee. Even though it developed that this warrant wasn’t served as a no-knock, “Breonna’s Law” reportedly bans future no-knock warrants in Louisville. So, they have “fixed” that, because, reasons.

          1. SHG Post author

            Not that I’m a fan of no-knocks, but it always struck me as wiser not to knee-jerk ban things you might want to use when it’s appropriate, rather than take some time, think it through and apply rational limits if possible. But that’s just me.

  4. Drew Conlin

    At the end of your piece you brought up the war on drugs. What ending the war on drugs might look like no one knows, but it’s certainly worth a serious consideration _ future Breona Taylor incidents might be avoided.

    1. SHG Post author

      I’m deeply ambivalent about the drug war problem, but what I’m certain about is that the police see it as an independent regime, a war to be fought without regard to the bodies involved. Even if we maintain that drugs should be criminalized, we can’t forget why that’s so, and forget that it’s not about eradicating drugs at the expense of people.

      1. Vincent Morrone

        Ending the ‘war on drugs’ is a great catch phrase, but it’s never that simple. However, the issue is that it’s literally thought of as a war, where there is too much acceptable loss of life.

  5. John Barleycorn

    So, the tethering part of them unvetted warrant application-even though they are handed out like candy on Halloween- must be somewhere in them there fill in the blanks on the form then eh?

    Yeah, yeah, I know the signatures are cool too, but damn if them them crispy boiler plate warrant forms aren’t the bomb. Heck, I bet you lawyers know just what page/s to skip to for the good stuff too…

    But even so -and only asking to confirm that my weird dreams are unfounded- untethered warrants still aren’t a thing just yet, correct?


  6. JMK

    Not like my opinion is worth much, but everyone here (with the exception of the detective who thought he was in an action movie) acted reasonably given what they knew at the time—the real failure was deciding to serve a simple search warrant in the middle of the night for no good reason.

    This was a shitty situation all around and I think the charges against Mr. Lethal Weapon are appropriate, as are the lack of charges against the other two officers. Mr Walker should likewise not be charged.

    Reforming the policies that put everyone in these situations is far better than punishing the poor SOBs who have to live with them.

  7. Jardinero1

    There is the factual matter of the warrant. It was a knock warrant. A neighbor also corroborated that they heard the police knocking and announcing themselves. This was the statement of the Kentucky AG and has been reported by more than one news outlet. Maybe the residents of Taylor’s apartment did not hear it, but at least one neighbor says he did. This doesn’t alter any of the points about unnecessary police violence but it makes the Grand Jury No Bill slightly easier to comprehend.

    1. Lee Keller King

      And, in contrast to earlier reports, the warrant was apparently valid and served on the right house and the right person (Breonna Taylor). At least one of the neighbors has come forward to say that HE heard the police announce themselves. The warrant was one of several search and arrest warrants served that night/morning in concert with an arrest warrant served on the main targets of the operation, Jamarcus Glover and Adrian Walker. And for the love of God, I wish people would stop repeating the falsehood that Taylor was “shot asleep in her bed.”

      I am an opponent of the war on drugs and “no knock” warrants, but that doesn’t make this a “botched raid” as has been repeatedly reported in the press. Was it a tragedy? Yes. Was it murder? No.

      But then this is the postfactual age and we must not let the facts get in the way of the feelz.

    2. AJD

      I saw the warrant and application (on documentcloud) contributed by a reporter at Reason. I’d drop a link, but the our host’s rules say not to.

      On the last page is “Affiant is requesting a No-Knock entry to the premises due to the nature of how these drug traffickers operate.” Regardless of whether they were granted a no-knock warrant, they certainly asked for one, which makes me think they would have preferred to serve it that way. But perhaps they just wanted flexibility.

      > Maybe the residents of Taylor’s apartment did not hear it, but at least one neighbor says he did

      One neighbor, after saying he didn’t, and being interviewed by the police eventually changed his story and said he did. Maybe he initially lied, maybe he lied after police coercion. Maybe his memory changed.

      I do know that I have no particular reason to trust the police’s story of how events unfolded. Nor the media’s, of course.

      1. Onlymom

        Kinda makes you wonder what the local thugs (cops) got on neighbor. Sine he seems to be the only one out of about ou 20. According to some reports they tried same crap with the boyfriend. Needlessly to say he told them to go to hell.

        As for the warrant. Sorry it was crap from the beginning. From what i have read the officer who applied for it used so-called evidence for packages being delivered there by the post office.. Only problem was he didn’t get that information from the post department. He went to another department who talked to the post office then told him seems the local police have a bad relationship with the post office. Last time i looked i can’t use hearsay evidence in Court why would anyone else even the government.

        Oh wait the nine morons on the USSC have ruled its ok if the authorities in the person of law enforcement can Lie, Cheat , Steal, Fabricate Evidence….. IT’S ALL GOOD! But when it’s a citizen talking to them its a felony even when confused.

    3. Zack

      The warrant itself says nothing about knocking or not knocking. But, the affiant officer requested a no-knock warrant. If our host will allow, here is a copy of the search warrant:

      On page 8, paragraph 15 states: “Affiant is requesting a No-Knock entry to the premises . . . ” Judge Shaw signed off on this, though someone with local expertise may be better able to substantiate whether a no-knock entry needs to be explicitly authorized.

      1. Zack

        On closer inspection, it appears that the warrant incorporates the affidavit, which suggests it was a no-knock warrant.

        1. SHG Post author

          I left your link to the warrant in. I posted both your comments. Do you have any thought as to what you contributed here by any of this, particularly since it never made any difference to anyone with half a fucking brain in the first place? Now hit the tip cup.

  8. Jake

    Phenomenal insight. But I wonder: does knowledge of the overwhelming information asymmetry between legal professionals and the rest of us make it harder or easier to jeer at the passion of the unduly passionate on the streets?

    You’re so close to empathy I can taste it.

  9. Joseph Masters

    Curious about quoting from newspaper editorials–if Radley Balko’s take in the Washington Post on Breonna Taylor is worth more than the NY Daily News’ take as mentioned, but even he seems to skip over the fact that the charges were dropped against Walker only after the “events” in Minneapolis occurred.

    Balko already smells a rat in the state of Kentucky, and if he eventually realizes that the David McAtee case involving the LMPD in June is also ready to explode (the surveillance video doesn’t match the public statements made by Louisville authorities)…

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