The Official Response To Breonna Taylor’s Murder Keeps Getting Worse (UPDATED)

George Turner in reply to DensityDuck says:

Oh, it doesn’t even get to police procedure. It’s just basic law. I’ll lay out the simple decision tree.

In Kentucky their are four categories of criminal homicide: murder, first-degree manslaughter, second-degree manslaughter, and reckless homicide. KRS (Kentucky revised statute) § 507.010 (2) says:

“Criminal homicide” means that a person is guilty of causing the death of another human being under circumstances which constitute murder, manslaughter in the first degree, manslaughter in the second degree, or reckless homicide;

So, step 1 is to check to see if the person’s actions meet the standard of murder. On to § 507.020

(1) 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; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.

More simply, murder requires malice, as in “I’m going to kill my boss and my ex-wife!” or “I’m going to kill a bunch of Zionists!” However, in clause (2) they carve out an exception that’s basically for people who, on their 8th DUI, drive the wrong way down a highway with extreme indifference and kill an entire school bus full of children. In many states you might see the phrase “malice aforethought” to refer to malice, intent, and planning. That element of the crime is often in the plot of a movie, to explain why Steve Buscemi’s character did the bizarre and horrible thing he did in Act II.

So, did officers Mattingly and Cosgrove go to Breonna Taylor’s apartment with the purpose of ending her life – ie, murdering her? At any point, where they sitting in their car, eating some donuts, and thinking “The world would be a better place if she wasn’t in it. Let’s off that chick…”? Or were the officers serving a search warrant that sought physical evidence about someone else, and that evidence was believed to be in her apartment?

Did the officer hate Breonna Taylor, and did they hate her enough to want to kill her? Does the charge of murder fit the circumstances of this case? This is a yes or no question. If no, we proceed to the next possible charge, manslaughter in the first degree, laid out in KRS 507.030

(1) 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
(c) Through circumstances not otherwise constituting the offense of murder, he or she intentionally abuses another person or knowingly permits another person of whom he or she has actual custody to be abused and thereby causes death to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

First degree manslaughter is an intentional killing that just happened in the moment, such as shooting your wife’s lover upon finding him in the closet. It’s the “killing in the heat of passion” instead of “killing with malice and planning aforethought”.

So did the officers freak out and open fire in the heat of passion because Breonna Taylor had some new boyfriend, or because they just found out she was wearing a wire and was rolling on them, or some other such thing? No, that’s not why they shot. They shot because, unexpectedly, from the other end of a hallway, her boyfriend opened fire, shot Mattingly, and kept on shooting. So first a degree manslaughter charge wouldn’t apply.

Second degree manslaughter is a killing that results from criminal negligence. KRS 507.040 says:

(1) A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including, but not limited to, situations where the death results from the person’s:
(a) Operation of a motor vehicle;
(b) Leaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child; or
(c) Unlawful distribution for remuneration of a Schedule I or II controlled substance when the controlled substance is the proximate cause of death.

Well, the extra clauses wouldn’t apply because they didn’t get drunk and plow into her car at 80 mph, they didn’t leave her in a car on a hot day with the windows rolled up, and they didn’t sell her fentanyl. So the phrase of interest would be “wantonly causes the death of another person”. For that, we need to look at what “wantonly” means. KRS 501.020

Definition of mental states. The following definitions apply in the Kentucky Penal Code:

(1) “Intentionally” — A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.

(2) “Knowingly” — A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.

(3) “Wantonly” — A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

(4) “Recklessly” — A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Nothing the officers did was remotely “wanton”. They were there to serve a search warrant, like they do almost every day. It’s not illegal to serve a warrant. They followed standard procedures, even unnecessarily knocked, and unexpectedly came under withering fire from Walker, and so they all shot back. It’s not illegal nor criminally negligent for police to shoot back at people who are shooting at them. Breonna Taylor was next to Walker when Walker started firing. The two were down a long hallway, quite some distance from the entrance door where the officers were, and one of the officers had already been badly hit in his leg, potentially fatally because the bullet struck a large artery.

The only thing you could possibly try to make stick is an argument that they either should have regarded Breonna as a “non-combatant” or even a hostage and not fired at her, or that they fired recklessly and thus hit her anyway. But missing a little when returning fire is not a criminal offense, it’s an accident. There’s no Kentucky law that says shots have to go in the center ring, so you’d have to prove criminal negligence, which isn’t going to stick because they were shooting back at an active shooter who was in a confined hallway and who had, in fact, just shot one of the officers. Their right to self defense would allow them to lay down almost any level of covering fire as they sought cover. The same right would apply to a Dominoes Pizza man who unexpectedly came under fire from somebody who freaked out and shot at him in the doorway.

And finally, reckless homicide. KRS 507.050

(1) A person is guilty of reckless homicide when, with recklessness he causes the death of another person.

See the above KRS 501.020 mental states for the definition of “recklessly”.

Harkison was firing recklessly through a patio door, but he didn’t hit Breonna Taylor, so he did not cause her death. So a charge of reckless homicide would not apply to him. But they did charge him with three counts of wanton endangerment for shooting into someone else’s apartment.

The only two officers who could possibly face the charge are Mattingly and Cosgrove, but they were careful as could be, and cognizant of the expected level or risk when serving a search warrant on an EMT ex-girlfriend, which is slim to none, but not zero. Thus they wore body armor and went in with backup, just like trained and experienced officers.

It doesn’t matter whether they knocked or not because they had a no-knock warrant, which meant their entry was legal regardless of how they entered. They were fired upon, and like virtually anyone who isn’t committed a crime, had the legal right to use lethal return fire to defend themselves.

And so we’ve run out of things to consider charging them with.Report