The lack of criminal charges this week for Kentucky police officers involved in 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 fatally shot one man when he meant to shoot another grabbing for a gun while responding to a report of an assault. 

In 2017, a Philadelphia laundromat owner shot a bystander twice in the hand while firing on a fleeing man who’d just stolen $2,000 from his store.

In 2015, a Utah police officer shot and injured a man resembling a suspect who had fired a gun at him.

None were 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 mistook three plain-clothes officers for intruders when they broke down the door to her apartment serving a no-knock search warrant for narcotics. He shot at them and hit one. They returned fire and hit Taylor, who died in her apartment hallway. No drugs were found.

A grand jury on Wednesday indicted only one of the three officers, Brett Hankison. But it was for 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’s cautioning against a “quest for revenge” has done little to quell unrest in the aftermath of the grand jury decision. Protests erupted in the streets and have continued in cities 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,” family attorney Ben Crump wrote on Twitter.

The officers’ execution of a no-knock search warrant after midnight should be reviewed, said Dave LaBahn, president of the national Association of Prosecuting Attorneys. And if the officers knowingly used false information to obtain the warrant, as Crump has suggested, then the dynamic of the case against the officers could change dramatically, and more charges could be brought. 

But the officers executing the warrant had 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 laws to people who claim self-defense.

Many U.S. states now have statutes codifying the Castle Doctrine, which stems from a 1604 English court case finding that a man had no duty to retreat from an assailant in his own dwelling, because “a man’s home is his castle.”

And more than half of U.S. states, including Kentucky, have expanded on this concept by enacting “stand your ground” laws, which remove the duty to retreat for people attacked outside of 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, the result is that Kennth Walker 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.

But Americans went on to abandon the English standard and adopt 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 had shot and killed his son-in-law. The man said the son-in-law had charged at him with an axe. The court found that the man was not at fault for provoking the confrontation and had therefore 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 an election-day riot was justified in doing so because the unarmed man had instigated a fist fight with him. 

Overturning the man’s conviction, Judge William E. 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 U.S. 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.”

Some states, like 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 file homicide charges at all, 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, in particular, rarely face criminal charges or convictions as a result of fatal shootings due to a 1989 U.S. Supreme Court ruling 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 chose 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 reasonableness into question, jurors still 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, only 121 officers have been charged with murder or manslaughter resulting from an on-duty shooting in the U.S. Of them, just 44 were convicted — most for a lesser offense, such as manslaughter, official misconduct, deprivation of civil rights, aggravated assault and reckless discharge of a firearm.

Of the seven convicted of murder, four of the convictions were overturned.   

Compare that with the Washington Post’s finding that police fatally shot nearly a 1,000 people in 2019 alone.

But that 1989 Supreme Court ruling, Graham v. O’Connor, was about officers using excessive force. The case against the officers who shot Taylor hinges on self-defense, he said.

Whether the laws should be written in such a way, and whether no-knock warrants should be used in the way they were, are more open questions, he said.

“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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