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.