Kenny Jaco and Jessica Priest, USA TODAY•September 27, 2020
The lack of criminal charges this week against Kentucky police officers for the shooting death of Breonna Taylor stems not from a unique quirk in that state’s law but from deeply embedded protections in the U.S. legal system for those who use deadly force to protect themselves.
Those protections mean law enforcement officers and civilians alike have been deemed justified in accidentally killing or injuring innocent bystanders in the course of self-defense.
•In 2018, a San Antonio police officer responding to a report of an assault fatally shot one man when he meant to shoot another grabbing for a gun.
•In 2017, a Philadelphia laundromat owner shot a bystander twice in the hand while firing on a fleeing man who’d stolen $2,000 from his store.- ADVERTISEMENT -
•In 2015, a Utah police officer shot and injured a man resembling a suspect who had fired a gun at him.
A Kentucky grand jury indicted one of the three officers who served a warrant the night of Breonna Taylor's death. The charges were not for Taylor's death but for wanton endangerment of her neighbors when the officer fired his weapon into a nearby apartment
None was charged with a crime.
“You’ve got to have intent. And with Breonna Taylor, he (the officer) didn’t intend to kill her. The officer returned fire and happened to get Breonna,” said Scott Boudreaux, a Birmingham, Alabama, defense attorney who has represented clients in accidental killings. “I think it’s self-defense.”
In the early hours of March 13, Taylor’s boyfriend shot one of the three plainclothes officers. He said he mistook them for intruders when they broke down the door to her apartment, serving a search warrant for narcotics. Police said they identified themselves before entering the home. They returned fire and hit Taylor, who died in her apartment hallway. No drugs were found.
None was charged with a crime.
“You’ve got to have intent. And with Breonna Taylor, he (the officer) didn’t intend to kill her. The officer returned fire and happened to get Breonna,” said Scott Boudreaux, a Birmingham, Alabama, defense attorney who has represented clients in accidental killings. “I think it’s self-defense.”
In the early hours of March 13, Taylor’s boyfriend shot one of the three plainclothes officers. He said he mistook them for intruders when they broke down the door to her apartment, serving a search warrant for narcotics. Police said they identified themselves before entering the home. They returned fire and hit Taylor, who died in her apartment hallway. No drugs were found.
Photos of Breonna Taylor's apartment were included in a request for a no-knock search warrant made by the Louisville Metro Police Department.
Wednesday, a grand jury indicted one of the three officers, Brett Hankison, on charges of wanton endangerment of Taylor’s neighbors – not Taylor herself – as a result of firing his weapon into a nearby apartment. It declined to indict any of the officers for reckless homicide.
Kentucky Attorney General Daniel Cameron cautioned against a “quest for revenge,” which did little to quell unrest after the grand jury decision. Protests erupted across the country.
"If Brett Hankison's behavior was wanton endangerment to people in neighboring apartments, then it should have been wanton endangerment in Breonna Taylor's apartment too," Ben Crump, an attorney for Taylor's family, wrote on Twitter.
The way the officers carried out the "no-knock" search warrant after midnight should be reviewed, said Dave LaBahn, president of the national Association of Prosecuting Attorneys. Crump suggested the officers knowingly used false information to obtain the warrant. If that can be proved, the dynamic of the case against the officers could change, and more charges could be brought.
The officers entered Taylor’s apartment legally, were shot at first and had a right to defend themselves, LaBahn said, calling the situation “lawful but awful.”
What Cameron described as “vigorous” self-defense laws in the state are part of a much broader trend in America toward forgiving people who claim self-defense.
Wednesday, a grand jury indicted one of the three officers, Brett Hankison, on charges of wanton endangerment of Taylor’s neighbors – not Taylor herself – as a result of firing his weapon into a nearby apartment. It declined to indict any of the officers for reckless homicide.
Kentucky Attorney General Daniel Cameron cautioned against a “quest for revenge,” which did little to quell unrest after the grand jury decision. Protests erupted across the country.
"If Brett Hankison's behavior was wanton endangerment to people in neighboring apartments, then it should have been wanton endangerment in Breonna Taylor's apartment too," Ben Crump, an attorney for Taylor's family, wrote on Twitter.
The way the officers carried out the "no-knock" search warrant after midnight should be reviewed, said Dave LaBahn, president of the national Association of Prosecuting Attorneys. Crump suggested the officers knowingly used false information to obtain the warrant. If that can be proved, the dynamic of the case against the officers could change, and more charges could be brought.
The officers entered Taylor’s apartment legally, were shot at first and had a right to defend themselves, LaBahn said, calling the situation “lawful but awful.”
What Cameron described as “vigorous” self-defense laws in the state are part of a much broader trend in America toward forgiving people who claim self-defense.
Attorney Ben Crump says police should have been charged in Breonna Taylor's death.
Many U.S. states have statutes codifying the Castle Doctrine, which stems from an English court case finding in 1604 that a man has no duty to retreat from an assailant in his own dwelling, because “a man’s home is his castle.”
More than half of U.S. states, including Kentucky, expanded on this concept by enacting “stand your ground” laws, which remove the duty to retreat for people attacked outside their homes – so long as they are in a place they have a right to be, aren’t committing a crime and didn’t provoke the confrontation.
In Taylor’s case, LaBahn said, Kenneth Walker, Taylor's boyfriend, was justified in shooting at the officers, and they were justified in shooting back.
A ‘true man’ fights back
After American colonies gained their independence from the British, the new states largely imported common law from England to use as judicial precedent for their own courts. In England, the law recognized very few civilian homicide defenses as valid.
English law forbade homicide except as a last resort, requiring those under attack to first flee the scene or retreat as far away as possible. Only then, with a wall at their back and nowhere else to go, did the state authorize them to kill their assailants. Even then, it was the killers’ burden to prove that using lethal force was necessary to save themselves from grievous harm.
England’s duty to retreat was a “powerful means to produce a society of civility,” wrote Richard Maxwell Brown in his 1991 book, "No Duty to Retreat: Violence and Values in American History and Society." Boiled down, it was a command to avoid physical conflicts, Brown wrote, barring fatal outcomes in most disputes and resulting in relatively low homicide rates.
Americans abandoned the English standard and adopted a fundamentally different attitude toward self-defense, primarily fueled by two state court decisions in the post-Reconstruction era.
In Ohio in 1876, the Supreme Court reversed the conviction of a man who shot and killed his son-in-law. The man said the son-in-law charged at him with an axe. The court found that the man was not at fault for provoking the confrontation and had acted as a “true man,” free to defend himself against his assailant.
The following year, the Supreme Court in Indiana took it a step further, ruling that a man who shot and killed an unarmed man in a riot on Election Day was justified because the unarmed man had instigated a fist fight with him.
Overturning the man’s conviction, Judge William Niblack wrote that “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.”
In light of these decisions, courts across the USA began to broadly accept the view that fleeing amounted to cowardice and that cowardice was un-American, Brown wrote in his book. In the early 1900s, a Minnesota judge rejected the duty to retreat, saying it was an outdated law that did not take into account the influx of guns into societal life. Wisconsin’s Supreme Court the same year asserted man’s “divine right” to “stand his ground.”
Many U.S. states have statutes codifying the Castle Doctrine, which stems from an English court case finding in 1604 that a man has no duty to retreat from an assailant in his own dwelling, because “a man’s home is his castle.”
More than half of U.S. states, including Kentucky, expanded on this concept by enacting “stand your ground” laws, which remove the duty to retreat for people attacked outside their homes – so long as they are in a place they have a right to be, aren’t committing a crime and didn’t provoke the confrontation.
In Taylor’s case, LaBahn said, Kenneth Walker, Taylor's boyfriend, was justified in shooting at the officers, and they were justified in shooting back.
A ‘true man’ fights back
After American colonies gained their independence from the British, the new states largely imported common law from England to use as judicial precedent for their own courts. In England, the law recognized very few civilian homicide defenses as valid.
English law forbade homicide except as a last resort, requiring those under attack to first flee the scene or retreat as far away as possible. Only then, with a wall at their back and nowhere else to go, did the state authorize them to kill their assailants. Even then, it was the killers’ burden to prove that using lethal force was necessary to save themselves from grievous harm.
England’s duty to retreat was a “powerful means to produce a society of civility,” wrote Richard Maxwell Brown in his 1991 book, "No Duty to Retreat: Violence and Values in American History and Society." Boiled down, it was a command to avoid physical conflicts, Brown wrote, barring fatal outcomes in most disputes and resulting in relatively low homicide rates.
Americans abandoned the English standard and adopted a fundamentally different attitude toward self-defense, primarily fueled by two state court decisions in the post-Reconstruction era.
In Ohio in 1876, the Supreme Court reversed the conviction of a man who shot and killed his son-in-law. The man said the son-in-law charged at him with an axe. The court found that the man was not at fault for provoking the confrontation and had acted as a “true man,” free to defend himself against his assailant.
The following year, the Supreme Court in Indiana took it a step further, ruling that a man who shot and killed an unarmed man in a riot on Election Day was justified because the unarmed man had instigated a fist fight with him.
Overturning the man’s conviction, Judge William Niblack wrote that “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.”
In light of these decisions, courts across the USA began to broadly accept the view that fleeing amounted to cowardice and that cowardice was un-American, Brown wrote in his book. In the early 1900s, a Minnesota judge rejected the duty to retreat, saying it was an outdated law that did not take into account the influx of guns into societal life. Wisconsin’s Supreme Court the same year asserted man’s “divine right” to “stand his ground.”
Cathy Makowski demonstrates against what she calls the abuse of Florida's "stand your ground" law in front of the Seminole County Courthouse in Sanford, Fla., after the shooting death of teenager Trayvon Martin in 2012.
Some states, including Florida, have gone so far as shifting the burden onto prosecutors to prove a homicide was not committed in self-defense. Such laws “benefit the defendant in a phenomenal way” and make prosecutors less likely to file homicide charges, especially in cases with no witnesses, said Denis deVlaming, a criminal defense attorney in Clearwater.
“Prosecutors hate this new law,” deVlaming said. “Unless they can disprove the defendant’s version of events, either forensically or by a statement or contradiction, he gets a pass.”
Laws especially protect police
In 2017, Birmingham, Alabama, resident Darrell Hutton shot at a man who pulled a gun on him, and one of the bullets struck and killed a 4-year-old girl. He was charged with murder.
Boudreaux represented Hutton and asked a judge for a hearing to consider whether Alabama’s “stand your ground” law applied. He argued that Hutton was defending himself and didn’t intend to kill the girl.
A judge agreed, dismissing the charges.
Law enforcement officers rarely face criminal charges or convictions as a result of fatal shootings because of a U.S. Supreme Court ruling in 1989 that their actions must be evaluated based on what a reasonable officer would do, given what was known at the time.
Because this is a hard concept for jurors to wrap their minds around, prosecutors often choose not to charge officers, said Philip Stinson, a criminal justice professor at Bowling Green State University in Ohio.
“The role of a prosecutor is to seek justice, but as a practical matter, they're very concerned with whether they can obtain a conviction,” he said.
Even when fellow officers testify that they didn’t feel afraid, calling the accused officer’s reason into question, jurors defer to how the accused officer felt in the moment.
“Jurors are very reluctant to second-guess the split-second, life-or-death decisions of a police officer in a potentially violent encounter,” Stinson said.
Stinson found that since 2005, 121 officers have been charged with murder or manslaughter resulting from an on-duty shooting in the USA. Of them, 44 were convicted – most for a lesser offense, such as official misconduct, deprivation of civil rights, aggravated assault or reckless discharge of a firearm.
Of the seven convicted of murder, four of the convictions were overturned.
According to The Washington Post, police fatally shot nearly 1,000 people in 2019.
That 1989 Supreme Court ruling, Graham v. O’Connor, was about officers using excessive force, not self-defense.
Labahn said there are questions about whether defense laws should be written as they are and whether no-knock warrants should be used the way the Louisville officers did.
“This is why we have legislatures,” LaBahn said. “Unfortunately with many things in criminal justice, it takes bad results for people to pay attention.”
Some states, including Florida, have gone so far as shifting the burden onto prosecutors to prove a homicide was not committed in self-defense. Such laws “benefit the defendant in a phenomenal way” and make prosecutors less likely to file homicide charges, especially in cases with no witnesses, said Denis deVlaming, a criminal defense attorney in Clearwater.
“Prosecutors hate this new law,” deVlaming said. “Unless they can disprove the defendant’s version of events, either forensically or by a statement or contradiction, he gets a pass.”
Laws especially protect police
In 2017, Birmingham, Alabama, resident Darrell Hutton shot at a man who pulled a gun on him, and one of the bullets struck and killed a 4-year-old girl. He was charged with murder.
Boudreaux represented Hutton and asked a judge for a hearing to consider whether Alabama’s “stand your ground” law applied. He argued that Hutton was defending himself and didn’t intend to kill the girl.
A judge agreed, dismissing the charges.
Law enforcement officers rarely face criminal charges or convictions as a result of fatal shootings because of a U.S. Supreme Court ruling in 1989 that their actions must be evaluated based on what a reasonable officer would do, given what was known at the time.
Because this is a hard concept for jurors to wrap their minds around, prosecutors often choose not to charge officers, said Philip Stinson, a criminal justice professor at Bowling Green State University in Ohio.
“The role of a prosecutor is to seek justice, but as a practical matter, they're very concerned with whether they can obtain a conviction,” he said.
Even when fellow officers testify that they didn’t feel afraid, calling the accused officer’s reason into question, jurors defer to how the accused officer felt in the moment.
“Jurors are very reluctant to second-guess the split-second, life-or-death decisions of a police officer in a potentially violent encounter,” Stinson said.
Stinson found that since 2005, 121 officers have been charged with murder or manslaughter resulting from an on-duty shooting in the USA. Of them, 44 were convicted – most for a lesser offense, such as official misconduct, deprivation of civil rights, aggravated assault or reckless discharge of a firearm.
Of the seven convicted of murder, four of the convictions were overturned.
According to The Washington Post, police fatally shot nearly 1,000 people in 2019.
That 1989 Supreme Court ruling, Graham v. O’Connor, was about officers using excessive force, not self-defense.
Labahn said there are questions about whether defense laws should be written as they are and whether no-knock warrants should be used the way the Louisville officers did.
“This is why we have legislatures,” LaBahn said. “Unfortunately with many things in criminal justice, it takes bad results for people to pay attention.”
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