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Legal Analysis Of An Indictment In The Breonna Taylor Case

MARY LOUISE KELLY, HOST:

Protests continue today in Louisville, Ky., over the news from yesterday - no charges in the police killing of Breonna Taylor. Taylor was 26 when she was shot and killed by plainclothes police officers who burst into her apartment late at night to execute a search warrant. Well, one officer was charged with wanton endangerment because several bullets he fired entered a neighboring apartment, which left many protesters wondering, what about the bullets that struck and killed Taylor herself?

Here to help us understand the legal reasoning is Jamiles Lartey. He covers legal issues and criminal justice for the Marshall Project.

Hey there. Welcome.

JAMILES LARTEY: Hey. Thanks for having me.

KELLY: So Taylor's family and their supporters, many activists, they were hoping for homicide charges - for murder, for manslaughter. What are the legal issues that may have prevented such charges from being filed?

LARTEY: Yeah, it's an interesting question. So police officers do have special laws that dictate their use of force when trying to arrest a suspect. So there's - and there's tons of Supreme Court case law on this as well, most notably Tennessee vs. Garner. That's the fleeing felon rule. They can't shoot someone or use deadly force just because they're scared they're going to get away. So there's a lot that the law says about the use of force when they're doing the job of being a police officer. But when it comes to the use of force of self-defense, that they fear for their life or they fear for the life of the other officers with them, police officers in Kentucky and in 29 other states have the same rights and privileges as anyone else.

KELLY: The same right to defend themselves if they feel...

LARTEY: To defend themselves - that's exactly right. And that probably sounds good to a lot of people because a lot of the current police reform discourse in recent years has essentially centered around the demand that police be accountable the same as anyone else. But the issue is that police have rights and I think, arguably, responsibilities in terms of, you know, a superior officer ordering you to do something like burst into someone's home at 1:00 a.m. with a battering ram, where if you or I were to do that and someone shot us, we would be considered the aggressor under Kentucky state law, and we'd have no right to a self-defense claim. And so the ambiguity and the kind of legal stalemate happens because police officers acting on a legally obtained warrant have the right to do that. So in that sense, it's impossible for the law to define a first aggressor.

KELLY: So just to make sure I understand this, the police officers in this case had a warrant to legally enter Breonna Taylor's apartment. They have a right to defend themselves. Breonna Taylor, of course, also has a right to - we all have a right to defend ourselves if our home is invaded. It sounds like this is kind of a legal Bermuda Triangle (laughter) trying to figure out, as you say, who's the aggressor, who's defending who, who started this.

LARTEY: Yeah, very much so. And so when it gets confusing and frustrating, as I so understand that it is, what I like to point people towards is, I think, my favorite topic of discussion in policing, which is the idea of officer-created danger. And that's the idea that police officers have a tremendous amount of leeway in their tactical approach to situations, and there are a lot of tactical approaches that are better than others.

The one example that I usually point people to is Tamir Rice in Cleveland years ago, right? This was a case where they got a call about a young man who had a gun in a park - what looked like a gun. The person making the 911 call said, I think it's probably fake, but, you know, can you guys go check it out? They pull up within a couple of feet of him, and they get out of the car. And thus, they're now in danger because someone who might have a gun is two feet away from them.

So this is a similar example of - serving a warrant at one o'clock in the morning when you could have known that there was a legal firearm holder in the house is pretty much the most dangerous way to serve that warrant. So there can be more discussion on how police are approaching these situations.

KELLY: All right. That is Jamiles Lartey. He writes about legal issues and criminal justice for the Marshall Project and is one of many people we're hearing from this week as we continue to report on the life and death of Breonna Taylor.

Jamiles Lartey, thank you so much.

LARTEY: Thanks for having me. Transcript provided by NPR, Copyright NPR.