It’s been 146 days since Breonna Taylor was killed. Kentucky’s Attorney General, Daniel Cameron, still has not filed any charges against the Louisville Police Department officers who killed her. Here are some statutes that deserve attention:
Murder (Ky. Rev. Stat. § 507.020):
A person is guilty of murder when: (a) With intent to cause the death of another person, he causes the death of such person or of a third person.
Reckless Homicide (Ky. Rev. Stat. § 507.050):
A person is guilty of reckless homicide when, with recklessness he causes the death of another person.
First Degree Manslaughter (Ky. Rev. Stat. § 507.030):
A person is guilty of manslaughter in the first degree when: (a) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; (b) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020; or
In Criminal Law, we were taught to break down and work through each element of a criminal statute. Essentially every class was devoted to identifying the elements of a crime, gathering the facts of the case, and analyzing the case by connecting elements to facts. Our professor was a practicing defense attorney so she kept us on our toes and we learned to take nothing for granted. For the sake of brevity, and at the risk of incurring her wrath, I am just going to say that the uncontested facts of this case easily satisfy the actus reus (guilty act) element of these statutes.[1] No one is denying that these police officers caused Breonna Taylor’s death.
It’s the element of mens rea, or a guilty mind, that seems to keep prosecutors in a state of perpetual self-doubt when considering whether to prosecute police officers who kill. Assessing a killer’s state of mind is complicated. Over time, the approach to this task has become increasingly intricate, characterized by sophisticated but arguably imprecise distinctions between concepts like malice aforethought, depraved heart, recklessness, negligence, extreme emotional disturbance, to name just a few. But because very few people verbally narrate their thought process as they commit a crime, prosecutors, judges, and juries are allowed to make reasonable inferences to arrive at a conclusion about mens rea.[2] There are some conventions and guard rails in this inferential step but largely it’s a matter of folk psychology.[3] It should not be surprising, then, that racialized logics often show up at this point.
For example, Breonna Taylor’s family is still waiting for charges to be filed 146 days later. But it only took six days for Louisville’s local prosecutor to indict her boyfriend, Kenneth Walker, for shooting one of the police officers in the leg as he burst through the door in the middle of the night. Walker claimed, quite plausibly, that he did not know the men knocking down the door were police. Nonetheless, he was indicted for attempted murder of a police officer and first degree assault.[4] Whatever uncertainty kept authorities from pursuing even a manslaughter or reckless homicide charge against Breonna Taylor’s killers did not stop them from charging Kenneth Walker with attempted murder, which requires intent to kill, the highest mens rea included in Kentucky’s killing statutes.
This hypocrisy is all the more perverse because mens rea’s theoretical purpose is to articulate the law’s concern not just with the material result of a crime, but also with its moral blameworthiness and social harm. By looking at mental states, law can better identify who is dangerous to society. So what do we make of the State’s boldness in indicting Kenneth Walker as compared to its timorous approach to Breonna Taylor’s killers? What does this say about its view of the relative social harms of a police officer’s wound and a Black woman’s death? To say that Black lives matter in the context of police killings is also to say that Black deaths matter.[5] But when prosecutors use mens rea as a pretext for excusing police killings of Black people, they are implicitly saying the opposite.[6][7]
More than that, though, mens rea’s role in enabling this structural violence also reveals the radically different ways the law treats white and Black interiority. When prosecutors hesitate to bring charges against three white police officers because they don’t think they can prove the requisite mens rea, it reflects an assumption that the defendants’ possess multi-faceted inner-worlds. Black defendants, by contrast, become a canvas on which police and prosecutors can project simplistic and often incoherent mental states. For example, based on the delay in charging Breonna Taylor’s killers, we can only assume that prosecutors are running through myriad theories of the case, looking at all the permutations of the police officers’ states of mind at the time that they fired blindly into the dark apartment they had just breached. In a matter of days, however, Louisville’s top local prosecutor managed to determine that Kenneth Walker saw a police officer coming through the door and instantly formed the specific intent to kill him.
That kind of erasure or contortion of Black interiority is its own kind of violence and one we’ve seen many times before. Almost invariably, when a Black person is killed by police, someone tries to slander them as depraved or dangerous. External signs (a style of clothing, the size of their body, some picture dug up from old social media) are used to obscure what should be the default assumption of every Black person’s complex inner life. Victims are turned into caricatures of criminality.
Presumably, the prosecution tried that tactic on Kenneth Walker because Breonna Taylor was out of reach, beyond innuendo. She was an innocent human being at home, unarmed, who dedicated herself to caring for others and sustaining life as an EMT. Kentucky’s relevant criminal statutes are above and the relevant contact information is below. Reach out and explain to Kentucky’s legal authorities how they could apply these laws. It’s been 146 days and the Attorney General, Daniel Cameron, still has not filed any charges against the police who killed Breonna Taylor.
Special Prosecutor, Attorney General Daniel Cameron
Phone: 502-696-5300
Email attorney.general@ag.ky.gov
Kentucky Governor Andy Beshear
Phone: 502-564-2611
Louisville Mayor Greg Fischer
Phone: (502) 574-2003
Website Contact Form
Additional resources and ways to take action can be found here.
[1] The LPD is fighting to keep its investigative file from being made public—even though it concluded its investigation and handed it over to the state AG and FBI—and public officials have been selective in releasing information so far. But the following facts seem to be uncontested:
Police were investigating Breonna Taylor’s ex-boyfriend, Jamarcus Glover, for drug-related charges. Breonna Taylor’s residence was one of five locations for which they received no-knock warrants, which permit police to forego identifying themselves and forcibly enter a location if they deem it necessary. Around 12:40am, officers at Breonna Taylor’s house knocked loudly on her front door multiple times, then proceeded with a forced entry, breaking down the front door with a battering ram. Breonna Taylor’s boyfriend, Kenneth Walker, who was with her in her apartment at the time, was unaware that the intruders were police and thought the home was being broken into. He fired his legally owned firearm, hitting one of the officers, Jonathan Mattingly, in the leg. Mattingly returned fire and was removed from the home by the other officers. Shortly thereafter, Brett Hankison and Myles Cosgrove also fired their weapons into the apartment. Breonna Taylor was shot eight times and died in the hallway of her own home.
[2] It is often argued that the difficulty of proving criminal charges is a virtue of our criminal justice system, a libertarian impulse that dates to our nation’s revolution against an abusive and unrestrained monarch. That insistence on protecting the rights of the accused shows up in the 4th, 5th, 6th, 8th, and 14th amendments, as well as in various principles of the common law. It should be difficult to bring charges and make them stick, according to this logic. But the Constitution was not written to extend those rights to all people and where the criminal justice system has been anything but restrained in dealing with people of color throughout our country’s history.
[3] See https://plato.stanford.edu/entries/folkpsych-theory.
[4] After public outcry and defense counsel’s objections to the grand jury proceedings, the prosecutor withdrew the charges and said they would wait until all investigations were concluded to file any charges.
[5] Black men are 2.5 times more likely to be killed by police than white men. Black women are 1.4 times more likely to be killed by police than white women. Source: https://www.pnas.org/content/116/34/16793
[6] Police likely kill over 1,000 people annually, though the precise number is difficult to come by because there are tens of thousands of law enforcement agencies in the United States and the federal government has outright resisted or dragged its feet in the face of calls to track the number of people killed by law enforcement officers. Sources:
A New Estimate Of Killings By Police Is Way Higher — And Still Too Low.
[7] From 2005 to 2018, only 98 nonfederal law enforcement officers were arrested in connection with on-duty killings and only 35 were convicted, often of lesser crimes like manslaughter or negligent homicide. Source: Police officers convicted for fatal shootings are the exception, not the rule.
Ian Ramsey-North is a rising 2L at BC Law. He loves hearing from readers. Email him at ramseyno@bc.edu.
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