We shouldn’t be screaming ‘racism’ when an African American prosecutor investigates a police incident and determines it was a tragedy but not a crime.
Oprah Winfrey is going to hate me for what I’m about to say. After all, she paid for billboards demanding that “the police involved in killing Breonna Taylor be arrested and charged.” And being a die-hard Democrat, I’m going to hate myself for praising a rising star in Republican politics — Kentucky attorney general Daniel Cameron.
Cameron announced last week that charges would not be brought against the two officers who entered Taylor’s house and shot her while they served a search warrant. It was the right decision. And given the aggressive demands for murder charges from celebrities, politicians and a powder keg public, it was a brave decision to follow the law despite certain public blowback.
The decision to decline charges does not diminish the tragic alignment of events that ended Taylor’s life far too early, through no fault of her own. When news of Taylor’s death broke in March, I was furious at the cops who shot her. I immediately assumed it was racism that fueled the trajectory of the bullets that ended her life.
The more news accounts I read, however, the bigger the pit in my stomach.
How the law could allow this
I knew why months were passing without charges. Yet it came as a surprise to the public, which understandably cannot make sense of how an innocent woman can be killed in her own home by police without anyone being held accountable for her death.
I’ve hesitated writing about Taylor’s death, because it’s one of those unnerving times when the law and justice seem to hopelessly miss each other. But maybe I can help people understand how the law could allow this:
►Grand jury. Yes, it was a grand jury of ordinary Kentucky citizens who made the decision to decline charges against two of the officers who shot Taylor. But every prosecutor knows that grand juries mostly follow the recommendation of the prosecutor, who both presents the evidence and acts as a legal adviser to the grand jury. It’s reasonable to conclude that the grand jury’s decision to decline charges is what Cameron wanted.
►Self-defense. The reason the two officers were not charged is that Cameron concluded they shot in self-defense. Taylor’s boyfriend, Kenneth Walker, acknowledged that he was the first to fire when officers executed a search warrant at Taylor’s apartment. Walker said he fired a warning shot aimed at the ground. But Cameron said the investigation determined that Walker’s shot hit one of the officer’s legs. The shot nearly severed the officer’s femoral artery.
The fact that Walker appears to have thought the police were intrudersdoes not change things. Under Kentucky law, a police officer can use deadly force to defend himself from an attack that could cause “death” or “serious physical injury.”
Self-defense is examined from the perspective of the person claiming it, at the moment it’s used. Returning fire, when fired upon, is classic self-defense.
►But Taylor didn’t shoot, so how is it self-defense against her? Taylor was standing shoulder to shoulder in a dark hallway with Walker when he fired. The officers fired back immediately. Police who return fire in this circumstance are not held to a standard of sharpshooter precision. That they hit Taylor rather than Walker is devastating, but it did not turn self-defense into murder.
►Did police have the wrong address? Wasn’t the “real suspect” already arrested? Ben Crump, an attorney who represents the family of Breonna Taylor, alleged in May that the officers served their search warrant at the wrong address. Crump was wrong. A group of related search warrants were served on the night Taylor was killed. One of the warrants was for Taylor’s address.
Protesters in Louisville, Kentucky, on Sept. 26, 2020, after no charges were brought in Breonna Taylor’s death by police shooting. (Photo: Max Gersh/USA TODAY Network)
Crump also claimed it was improper to execute a search warrant at Taylor’s address because the “real suspect” of the investigation, Taylor’s ex-boyfriend, was already in custody. The problem with Crump’s allegation is that search warrants do not authorize the arrest of a person; they authorize the search of a property.
While police took Taylor’s ex-boyfriend into custody around the time of the raid on Taylor’s apartment, that did not void the search warrant. Search warrants are routinely executed at houses after a target of an investigation has already been arrested. That’s because evidence of a crime can remain at a house after a suspect is in custody.
►Mistakes in the search warrant. Commentators have gone to great lengths dissecting the search warrant for Taylor’s house in an effort to expose perceived flaws that made it inaccurate or insufficient. This is going to sound harsh, but it doesn’t matter.
The officers who shot Taylor did not write the search warrant or present it to the judge who signed it. They were not responsible for its accuracy.
As often happens when multiple search warrants are scheduled to be served at the same time, officers who were not part of the investigation were pulled from other assignments to assist with the warrants. The two officers were assigned to a search team, handed a warrant signed by a judge and ordered to search Taylor’s house.
All the second-guessing about the quality of the search warrant does not change the fact that the officers who entered Taylor’s house were in possession of a court order directing them to search her house. Even legitimate criticism of the warrant, made after the fact, would not retroactively invalidate the warrant and leave the officers trespassers who could be shot at will.
►No-knock warrant. In limited circumstances, a judge can issue a “no-knock” warrant — meaning the police do not have to knock and announce their presence before entering. A no-knock warrant was issued for the search of Taylor’s house. People can debate the propriety of the judge’s decision to issue a no-knock warrant, but the judge issued an order and the officers were entitled to rely on it.
Justified concern, correct decision: Grand jury made right call in Breonna Taylor case
Even though they had a no-knock warrant, the officers said they knocked and announced their presence before entering Taylor’s home. An independent witness corroborated this, though some neighbors said they didn’t hear the police announce their entry.
The dispute over whether the officers knocked isn’t relevant. Because the officers had a no-knock warrant, they cannot have failed at an obligation they never had.
►Friendly fire? Steven Romines, an attorney for Kenneth Walker, claimed it was police fire, not a shot from Walker, that hit the officer. The bullet that hit the officer was from a 9mm firearm. While a Kentucky State Police report was not able to conclusively establish that the bullet that hit the officer came from Walker’s gun, only Walker shot a 9mm weapon. Cameron said, “The officers fired .40-caliber handguns.”
Romines responded on CNN that he obtained a record showing one of the officers had been issued a 9mm weapon. That might be true, but officers frequently have more than one weapon, so the record does not necessarily undercut Cameron’s statement. Either way, because Walker fired the first shot, the officers were entitled to return fire.
►No evidence of drug trafficking at Taylor’s house. CNN news anchor Don Lemon suggested last Wednesday that because the search warrant for Taylor’s house authorized a search for drug trafficking evidence, and none was found, the police wrongly entered her house. That’s not how it works. A search warrant is based on probable cause at the time the warrant is issued. A search that produces no evidence does not turn back the hands of time and nullify a warrant.
Before the outrage, find the facts
The explosion of blind fury following the report that no murder charges would be filed reached every corner of TV and social media. In what amounted to a public service announcement warning of the dangers that come with abandoning critical thinking, Sen. Bernie Sanders referred to the decision as “a disgrace,” actress Viola Davis decried the “bulls— decision,” and the public protested and rioted. Two police officers were shot during the protests that spilled into the streets the first night after Cameron’s announcement.
We can’t keep doing this. We can’t keep losing our collective minds and rushing to the streets screaming “racism” after an African American prosecutor spends six months using state and federal resources to investigate a police incident that he determines is a tragedy but not a crime.
Law enforcement: I’m a Democrat who worked with police for 28 years. Everyone should know them like I did.
Before the outrage, we must commit to doing a deep dive into the facts. And we need to rely on experts, rather than reruns of “Law and Order,” to explain how the law applies to the facts.
Having read this column, maybe you understand the legality of things a little better. But I’m guessing you’re still heartbroken. I get it. I’m looking at the picture of Breonna where she’s holding her EMT diploma and a bouquet of yellow roses. The one where her sweet smile and beaming eyes make you feel proud of what she had accomplished, even though she’s a stranger. I’m still heartbroken, too.
Michael J. Stern, a member of USA TODAY’s Board of Contributors, was a federal prosecutor for 25 years in Detroit and Los Angeles. Follow him on Twitter: @MichaelJStern1
Read or Share this story: https://www.usatoday.com/story/opinion/2020/09/29/breonna-taylor-death-no-accountability-blame-laws-column/3561008001/