USC Law Professor Jody Armour On Breonna Taylor Case: 'Justice Is Not Colorblind'
Breonna Taylor, 26, was shot and killed by police in her Louisville, Kentucky apartment earlier this year after officers attempted to execute a warrant in a failed drug raid.
Today, one of the officers involved in that raid was indicted on three counts of wanton endangerment in the first degree — but those charges were not for endangering Taylor's life.
Rather, they were handed down in response to the detective's shooting into an adjacent apartment. That detective, Brett Hankison, was fired in June. Two other officers at that raid will face no charges, including the officer who the FBI identified as having fired the shots that killed Taylor.
A Martínez: What does the charge of wanton endangerment actually mean?
Jody Armour: It means you're not guilty or accused of causing any forbidden result, causing a death. You're just accused of generating excessive risks. You were wanton in your disregard of the risk of death or serious bodily injury that you were generating, but we're not saying that those risks resulted in any death. Otherwise, we'd be charging you for that forbidden result, that death. So this is a felony, but it is a low-grade felony. Maximum five years. Oftentimes, people get probation for this, and you get an opportunity to walk out of the court.
So this is completely different than, say, negligent homicide.
It's very different than negligent homicide because there, you have a result. You have a death, and then you have a negligent causing of that death. This would be more like driving up Figueroa at 85 miles an hour during lunch time. That'd be wanton endangerment.
A lot of people are not happy with just these charges. And people in general, as history has shown us, do not want to charge police officers. So is it possible that a lesser charge in this case was sought because there's a greater chance for a conviction?
Yeah, the reality is — and this is a bitter truth to confront, here — that if a trial jury was looking at these facts, and the law as it now stands told them that as long as the officers reasonably believed they faced imminent death or threat of imminent death, they can return fire. When the boyfriend shot one of their partners in the leg, they could say, Well, there was a shot. We shot back. We acted reasonably at that moment, given that instant.
Now, if you back up though and say, Well, what did you do to stage that moment? Did you negligently create that moment? Was it foreseeable when you kicked in a door in the middle of the night without announcing yourself that somebody inside could think that an intruder was threatening them and shoot to prevent the intruder from harming them? If that was foreseeable, and now you're using that foreseeable act by that shooter to justify your shooting back, well, maybe something's wrong with the initial decision to kick in the door with a no-knock in the first place, especially when we're talking about drug offenses.
I think the real tragedy that Breonna Taylor's case points out is not the racism just within the encounter, but that we will have no-knock raids, forced entry raids to enforce drug laws. That's the deeply racist part of this, I think, and what we shouldn't lose sight of.
NOTE: The officers had been issued a "no-knock" warrant, but in announcing the charges, Kentucky Attorney General Daniel Cameron said "evidence shows that officers both knocked and announced their presence at the apartment." He cited the officers' statements and one additional witness. Cameron said there is no video or body camera footage of the officers executing the search warrant.
I'm wondering if maybe releasing the evidence or some of the evidence for public review could help explain things better ... or help ease how people are feeling right now.
It always helps. The transparency always helps ... so more transparency is better. But at the end of the day, I think what you're really going to be looking at is a policy decision. We made a policy decision that forced entry raids for drug offenses are OK in the middle of the night. This could have been five or six years ago for a bag of pot for a joint, right? And so hopefully this shines a light on that policy decision that we have to address.
The thing is, though, Breonna Taylor is dead. Yet there is no charge that takes into account the fact that the actions of police wound up killing her. So, what does that make her death in this case? Just collateral damage?
That's it. It makes it the price that many of us in society are willing to pay for a failed drug war. You should think that people on both sides of the aisle would be in agreement on this one proposition: The state shouldn't be able to kick in your door of your home in the middle of the night and shoot you in bed without legal consequence, over drugs — over a failed drug war. In spite of, I think, the room for both the left and right sides of the aisle seeing agreement on this kind of case, I think you're still going to see a partisan split on this issue.
So even though an officer was indicted in the bigger picture, can this be called almost a non-indictment?
Yeah, it's a sop that is being thrown to protesters in a way, saying we're going to pick out one officer, not even one who's accused of causing her death, and give him a charge that's low-level; even if he's found guilty of it, he's looking at probation, probably. And it will pacify you. And I don't think it will have the desired effect.
Officer [Myles] Cosgrove was not the one that was charged, but it's been determined that he fired the shot that killed Breonna Taylor. I'm just thinking about Taylor's family, because they've got to be feeling pretty empty right now with seemingly no closure in sight on her death. Down the road, could charges be filed against him?
Probably not. You know, the vindication they're going to find from the criminal justice system is just not there. And in many cases of violent death, you don't really find vindication in the criminal justice system. That's why people are moving toward restorative justice models and the like. They did get a [$12 million] civil judgment against the offending police, and there's some minor satisfaction in that, but it is not going to come close to fully vindicating Breonna's life, of course. We need still, at this moment, to find other ways to vindicate victims' lives than just being punitive as possible toward their victimizers. At this moment, when we're trying to decarcerate, make deep cuts in mass incarceration, most of the people in jails are disproportionately Black, and they're there for violent offenses. So we have to change the moral framework and this may challenge us, in a case like this.
I know there are a lot of people that are not happy about these charges, but can we step back at all and see that change has happened or is happening? Because a few years ago, this officer might not have faced any charges.
Yeah, you know, the marches in the streets, the protests matter. They moved the needle. They've raised awareness. Now, the question is how much can be done with that awareness. We saw that while they were in the streets — the streets of L.A. were roiling with them — the legislature in California promised a suite of big criminal justice reforms. When they were no longer in the streets, they just kind of let most of those reforms die without being addressed. So it looks like the lawmakers' feet have to be held to the fire by a lot of constant protesting. But that protesting does definitely move the needle.
Greek philosopher Aristotle is credited with saying, 'The law is reason, free from passion.' Considering everything that's happened in the last few months, does this spirit of that statement still hold up?
Sadly, no. And I'm a law professor. I teach students to respect the rule of law, and I believe in the rule of law in many ways. But I also recognize there are limits on that belief. And when we see that sometimes the law provides vehicles for ordinary stereotypes and prejudices to come through the jury box and decide cases, we really see that maybe justice is not colorblind. Maybe the rule of law is a little more challenged and fragile than we think.
(Note: This interview has been edited for clarity.)
Leo Duran and Darby Maloney, who work on our newsroom's local news and culture show Take Two produced this segment for the radio. LAist producer Jessica P. Ogilvie edited the transcript.
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