the system

The Law Is Not Made for Breonna Taylor

Photo: Bryan Woolston / REUTERS / Alamy Stock Photo/Alamy Stock Photo

Breonna Taylor has led a singular afterlife. Since March 13, when the 26-year-old died in a hail of police gunfire inside her Louisville, Kentucky, apartment, she has become a rarity, a Black woman whose unjust death became a national cause célèbre. The protest movement that has gripped the United States for much of the past decade has sought to lift deaths like Taylor’s from obscurity to the status of an emergency, and yet hers has unusual contours: Stars from the film Hellboy and the TV show Riverdale have called for her killers to be arrested, in the latter case using a semi-nude Instagram photo as a vehicle; a Formula 1 racing champion issued the same demand from the winner’s podium in Tuscany. Much of the media has followed suit. An image of Taylor recently graced the cover of O magazine, the first time in the publication’s 20-year history that Oprah Winfrey herself wasn’t on it, and Vanity Fair’s September issue led with a painting of Taylor by Amy Sherald, the artist who rendered Michelle Obama for the National Portrait Gallery. This uncommon interest from celebrities and their journals of choice is an outgrowth of the largest protest movement in U.S. history, which brought an estimated 26 million Americans into the streets between May and July, according to the New York Times. Those demonstrations, focused on Taylor’s death and others’, are ongoing.

For all that is extraordinary about how she’s been commemorated, the one thing Taylor is not is a beneficiary of justice under the law, because the law is not for people like Breonna Taylor. This is not a statement of hysterical resignation, but rather the obvious takeaway from how her case has unfolded. Kentucky attorney general Daniel Cameron announced on September 23 that no criminal charges would be filed against the police officers who burst into Taylor’s home during an ostensible drug raid and pumped six bullets into her as she stood, unarmed, in her own hallway. (No drugs were found at the scene.) This determination was reached by a grand jury — the same body that charged Brett Hankison, one of the three officers who opened fire at Taylor’s home that night, with “wanton endangerment” because his particular spray of ammo endangered a neighbor’s apartment. Now the gravest consequences for Taylor’s shooting are being faced by the only gunman who failed to shoot her. And for all its blatant inequity, this appears to be a legally sound conclusion. Although the police invaded Taylor’s home and were mistaken for civilian intruders by her and her boyfriend, Kenneth Walker, it remains that Walker fired the first shot by his own admission. “Most states don’t allow someone to claim self-defense when they are an aggressor,” Seth Stoughton, a professor at the University of South Carolina School of Law, told the Marshall Project in August. “But most states also say that when police are acting in their official capacity, they can’t be aggressors for purposes of self-defense law.”

This is not to say that the legality of the police’s behavior is cut and dried. Kentucky officers are supposed to only override the protections of the so-called castle doctrine, which exempts residents from the duty to retreat during a home invasion and grants them the right to meet force with force, when they announce and identify themselves before forcing entry. According to nearly a dozen witnesses, the Louisville Metro police did not do this on March 13. Walker himself called 911 that night, bewildered. “Somebody kicked in the door and shot my girlfriend,” he told the dispatcher. Cameron’s recent claim that the officers made themselves known, and were therefore not executing a “no-knock warrant,” as reports suggested, seems to be supported by just a single witness and testimony from the police themselves. (No video or audio recording exists of the officers’ execution of the warrant.) As for the warrant itself, its lack of specificity, which allowed those executing it to target Taylor and her boyfriend — as part of an investigation in which their involvement was never firmly established and whose main suspect and accomplices were already in police custody — violated the 1997 Supreme Court ruling in Richards v. Wisconsin, according to the Washington Post.

It has become clear that Kentucky’s legal apparatus will sanction this behavior anyway. Cameron has said the warrant’s specific merits are outside the purview of his investigation. But his insistence that the officers were “justified in their use of force” is probably the final word on how the case will be handled locally and a harbinger of how it could be upheld by future inquiries. Cameron and federal prosecutors have broad discretion to find work-arounds and build a criminal case against the police. But they have to want it. And the attorney general’s recent endorsement of President Trump, who scoffs at the mere idea of police accountability to the public and commands a federal law-enforcement apparatus dedicated to pursuing his personal interests, is merely the latest evidence of its unlikelihood. In its place, officials have offered lies and platitudes. “ ‘Democracy is a system that recognizes the equality of humans before the law,’ ” Cameron said during his speech at the Republican National Convention in August, quoting Dwight D. Eisenhower. “Whether you are the family of Breonna Taylor or David Dorn, these are the ideals that will heal our nation’s wounds.” They’re also absent here.

This reality lays bare the limitations of appeals to law enforcement — calls to “arrest the cops who killed Breonna Taylor” — to find recourse in cases like hers. The law was designed to exonerate her killers in blue. It’s a license to rain more than 20 bullets on anyone within the general vicinity of a designated threat. Of the five individuals who converged on Taylor’s apartment that night, she was the only one without a firearm and the only one who did not survive. The City of Louisville can pay her family $12 million as part of a wrongful-death settlement, which it did recently. But this sum is also a tacit admission that, to almost everyone in a position to assign official responsibility, her killers acted legally and could easily do the same thing again without consequences. If the law lacks a satisfactory answer for people like Taylor and their families, then its capacity to deliver justice is functionally null.

It has now been six months since Taylor’s death. The dissident energy has largely ebbed; public opinion on the protests has slightly soured; and hope for sweeping legislative solutions to police violence has been eclipsed by partisan bickering, efforts by conservatives to shore up police impunity, and promises from some liberal officials to implement reform measures that have already failed in the past. It does seem, though, that many more people are growing surer about what won’t work and the difficulty of what is necessary. Proposals aimed at altering police behavior within the law’s inherently violent parameters — like more robust de-escalation and anti-bias training, prohibitions against brutal practices like choke holds, and requiring fellow officers to intervene when they witness police abuse — might pay incremental dividends but are woefully inadequate. The more meaningful goal is both simpler and harder to reach: changing the law itself and dismantling the extraordinary legal protections afforded to police who act violently. It’s also a provocation to seriously engage the proposals of abolitionists, who view these excesses as inextricable from the practice of policing and seek alternative ways to mitigate harm. But as things stand now, the existing legal framework serves more often as a protective bunker into which officials seeking to evade justice can retreat. The problem here is not that police and prosecutors are abusing the law and so must be reined in by it. It’s that the law openly supports their abuse and exists to serve their interests over people like Breonna Taylor’s.

*This article appears in the September 28, 2020, issue of New York Magazine. Subscribe Now!

The Law Is Not Made for Breonna Taylor