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Learning from Breonna Taylor

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Learning from Breonna Taylor

While tragic, the case doesn’t illustrate what its critics claim. October 2, 2020
Public safety
The Social Order

Few phenomena have been as politically polarizing in recent years as fatal police shootings. The death of Breonna Taylor—shot and killed by police during a warrant-service operation in Louisville this past spring—has become part of the media and political maelstrom surrounding the deaths of other black Americans at the hands of police. The Taylor shooting has served as a springboard for debates about police reform—specifically, about qualified immunity, police militarization, and racial disparities in police use of force. Her death—like any death in police custody—is tragic. It should inspire police leaders, lawmakers, and commentators to reflect dispassionately on what should have been done differently.

Not every police shooting is avoidable. Sometimes police do everything right and still end up taking a life. Other times, police shootings are the result of policy failures, individual missteps, and even malevolence. Into what category should we place Breonna Taylor’s death? Some key factual questions remain in dispute, and not all the relevant evidence is publicly available.

Police appear to have shot Taylor as they executed a search warrant—granted in connection with a narcotics investigation that implicated Taylor—at her home. The warrant allowed them forcefully to enter the dwelling without first knocking and announcing themselves, though the officers involved insist that they knocked and announced themselves prior to entering.

Upon entering, Sergeant Jonathan Mattingly was shot in the leg, apparently by Taylor’s boyfriend, Kenneth Walker, who legally possessed a firearm. Walker claims not to have heard the police announcement, and believed the apartment was being broken into, giving him the right to use deadly force. The police returned fire, hitting Taylor, who was apparently standing near Walker in the hallway. A grand jury chose not to hand down indictments for Taylor’s shooting, and prosecutors dropped the charges initially pressed against Walker for shooting Mattingly.

The publicly available evidence in Taylor’s case (so far) supports four assertions: that police officers had the legal right to enter Breonna Taylor’s home; that it was reasonable for Walker to believe the apartment was being broken into, and that he therefore had the legal right to fire at the officers before realizing who they were; that police had the legal right to return fire; and that none of the parties involved committed a crime with respect to the shootings of Taylor and Mattingly. The last of these is the main point of contention for police critics, who see the failure to prosecute police for shooting Taylor as emblematic of a pattern: blacks get killed by police without anyone being held accountable.

While no criminal charges have been filed against officers for Taylor’s death, Louisville has settled a wrongful-death suit filed by Taylor’s family for $12 million. That obviously can’t ease the pain of Taylor’s grieving family; but the payout undermines the claim that agents of the state can kill with legal impunity. The settlement also contradicts suggestions that Taylor’s family wouldn’t be able to sue thanks to the controversial doctrine of qualified immunity, which exempts government officials operating in a discretionary capacity from being sued, unless they were acting in some egregiously unconstitutional manner.

In an article on the Taylor case, the Washington Post’s Radley Balko claimed that qualified immunity protects police from lawsuits stemming from violation of the knock-and-announce rule, noting that he had “never come across anyone who has ever won a lawsuit against police officers solely for violating” the rule. In the New York Times, Spencer Bokat-Lindell cited Taylor family attorneys’ belief that, “to get justice,” they would “have to overcome an obstacle known as ‘qualified immunity.’” And Massachusetts congresswoman Ayana Pressley specifically invoked Taylor’s case when she introduced legislation aimed at abolishing the doctrine.

Nor is the Taylor family lawsuit an exception to a rule. Multimillion-dollar payouts are common in high-profile cases of police abuse. Rodney King received $3.8 million after he was beaten during an infamous 1991 arrest in Los Angeles. Laquan McDonald’s family received $16 million after he was murdered by a Chicago police officer in 2016. Stephon Clark’s estate received a $2.4 million settlement after he was killed by police in Sacramento in 2018. Kalief Browder’s family received $3.3 million after he took his own life after serving a long stretch in a New York City jail. Tamir Rice’s family was paid $6 million. Philando Castile’s family won a $3 million settlement. Freddy Gray’s family got $6.4 million. Eric Garner’s family settled their case for $5.9 million. And, despite multiple investigations concluding that Michael Brown’s 2014 shooting in Ferguson, Missouri, was legally justified, his family received a $1.5 million settlement. Even in lesser-known cases alleging police misconduct, settlement payouts are not unusual.

A database of lawsuits filed against the NYPD, maintained by the Legal Aid Society, shows that between January 2015 and June 2018, just 74 (3 percent) of 2,387 suits were resolved in favor of the defendants. More than 830 (35 percent) of those cases were settled. And an empirical analysis of cases filed against police found that qualified immunity was invoked to defeat just 38 (3.9 percent) of 979 cases in which the defense could be raised.

But the qualified-immunity doctrine still deserves scrutiny. Even if it’s not a common outcome of police litigation, there are cases in which judges grant immunity on the grounds that the right asserted by the plaintiff was not “clearly established” so as to pierce the shield of qualified immunity. What’s more, the current legal framework allows judges to avoid confronting the issue of whether a right has actually been violated by letting them skip to “step two” of the analysis, which asks whether a prior precedent clearly established the right being asserted by the plaintiff. If the answer is “no,” then that’s the end of that.

On the other hand, the current framework reflects ideas embedded in the Anglo-American legal tradition: that actors ought to be put on fair notice of the rules by which they are bound, and that they ought to be protected from ex post facto liability. So, completely abolishing qualified immunity could, in theory, leave police vulnerable to suit for conduct that they had no reason to believe constituted a violation of someone’s rights. A more measured approach to reform might start by preventing judges from skipping “step one” of the analysis and requiring them to rule on the lawfulness of the alleged conduct in police litigation. This would more rapidly shrink the scope of cases without precedential antecedents, and, by extension, those in which police will be able successfully to claim immunity.

Taylor’s case has also highlighted the issue of police militarization. Critics implicate this alleged phenomenon in the overuse of no-knock warrants and heavily armed special weapons and tactics (SWAT) teams, both of which, they argue, endanger the public. However, available data undermine any meaningful connection between police militarization and outcomes like what occurred in the Taylor case.

A 2008 study prepared for the Department of Justice’s National Institute of Justice estimated that SWAT officers fired shots in just 342 of the tens of thousands of operations evaluated. In New York City, Emergency Service Unit (ESU) officers—the NYPD’s SWAT team members—did not record a single shooting in 2019; they recorded only one in 2018. By contrast, non-ESU officers recorded 57 shootings over that two-year period. From 2017 to 2018, Chicago SWAT officers filed just 26 of more than 10,000 Tactical Response Reports (filed when officers use physical force). Even a 2014 ACLU study on the topic of police militarization found that just five of the 818 SWAT raids evaluated resulted in fatal police shootings.

Another argument against police militarization is that the acquisition and use of military-style weapons and other equipment encourages violence. The evidence doesn’t support this contention. Much of the military-surplus weaponry and equipment currently in police hands got there through the Pentagon-administrated 1033 Program. One study by researchers at the University of Tennessee found that acquisitions made through the 1033 Program had no effect on fatal police shootings. Another study published in the American Economic Journal in 2017 also found no effect on fatal shootings. That study did, however, determine that the acquisitions had a significant crime-reduction effect. Yet another analysis of 1033 acquisitions published in 2017 found “little evidence of a causal link between general military surplus acquisition and documented use-of-force incidents.”

Taylor’s case does raise important questions about no-knock warrants, though they rarely result in a death. Recently, Vox’s Dara Lind reported that police conduct 20,000 no-knock raids annually, and Balko estimated on NPR in June that approximately 40 people are killed in such raids each year. It’s plausible that such raids would increase the chances that someone would mistakenly believe that his home is being broken into. In a country in which firearm ownership is both legally protected and common (more than 40 percent of Americans have reported either owning, or living with someone who owns, a firearm), such a mistake can prove deadly for all parties.

One can imagine instances in which the element of surprise offered by no-knock raids would maximize officer safety. Thus, an outright ban would probably go too far. But no-knock warrant requests should be subject to approval by an executive officer whose mandate is to ensure that they are tactically necessary, based on actual intelligence outlined in a written explanation accompanying the decision.

It’s perhaps most troubling that Taylor’s death is contributing to the misperception that racism explains racial disparities in police shootings. Former NFL quarterback Collin Kaepernick invoked Taylor in a tweet calling for the abolition of “the white supremacist institution of policing.” Other critics have focused on the statistical overrepresentation of blacks among those fatally shot by police. This disparity, they say, justifies blacks’ suspicions and distrust of the police.

Social science literature describes these fears, when acted upon, as a form of “legal cynicism”—defined in one study as “the deep-seated belief in the incompetence, illegitimacy, and unresponsiveness of the criminal justice system.” That study documented a significant increase in the reluctance of black Americans to call 911 after a controversial use of police force went viral. A 2016 poll showed that the number of blacks who reported worrying about police brutality was generally twice as high as the number that reported worrying about gun violence. And yet, for black men, the odds of being killed by criminal gunfire are several times higher than those of dying at the hands of police. What’s more, the statistical overrepresentation of blacks among those shot by police must be viewed in the context of their statistical overrepresentation among serious violent offenders—particularly known cop-killers and murderers. These unfortunate statistical realities inform the deployment of police resources and the rate at which police interact with black suspects—both of which, in turn, account for at least some of the racial disparities in police shootings.

The bottom line is that police shootings—indeed police uses of force, generally—are extremely rare outcomes, even in the context of dangerous police interactions. Police use force in less than 1 percent of all arrests. When they do, that force results in a serious injury in just 2 percent of those cases.

In the end, what happened to Breonna Taylor was a tragedy. Taking that tragedy as an opportunity to learn and improve is both understandable and desirable. Indeed, police leaders around the country ought to be thinking carefully about how they can minimize the risk of similar outcomes in the future. And yet, while controversial police shootings should give us pause with regard to current policing practices, we shouldn’t accept broad allegations against policing and law enforcement that empirical evidence refutes. Critically examining such claims is key to mitigating the damage being done by the legal cynicism spreading in America’s black community.

Photo by Drew Angerer/Getty Images

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