The logic behind the grand jury’s limited charges

In the case of Breonna Taylor, who was shot and killed in her Louisville apartment by members of the local police department, only one officer who fired shots, Brett Hankison, was charged with a crime. And he was not charged at all in Taylor’s actual death.

Based on the facts found by the grand jury, this limited set of charges seems appropriate. Here’s how the criminal liability plays out. When officers broke through her door at midnight that night to execute a search warrant, Taylor’s boyfriend, Kenneth Walker, fired a gun at the officers, apparently thinking the apartment was being burglarized. In so doing, it appears that he was not guilty of any crime under Kentucky law, which gave him the right to use deadly force both to repel what he reasonably believed to be a burglary and to protect himself from what he reasonably believed to be the imminent use of deadly physical force.

But, in turn, police officers reasonably believed that they were now in imminent danger of being killed, so their return of fire was, as the grand jury found, justifiable. So we have the odd situation where both shooters in a gunfight are justified (or, in Walker’s case, at least excused) and neither is guilty of a crime.

So why was Hankison charged at all? Because of a provision of Kentucky law that provides that even a person justified in using deadly physical force in self-defense can be charged with a crime if he “wantonly or recklessly...creates a risk of injury to innocent persons.” Apparently, the grand jury found that Hankison, although justified in returning fire, may have been wanton or reckless in the way that he did so, given that he ended up shooting into an adjacent apartment.

Hence the three counts of wanton endangerment in the first degree, one for each of the occupants of that apartment. Indeed, the grand jury must have determined that Hankison might have acted not only wantonly or recklessly, but with “extreme indifference to human life,” which is why the charge is wanton endangerment in the first degree, a Class D felony, rather than second degree, a Class A misdemeanor.

This explains why Kentucky Attorney General Daniel Cameron, in discussing the facts found by the grand jury, stressed that the other two officers were justified but never said that Hankison was. In fact, the grand jury apparently thought that Hankison was partially justified.

So if Hankison was arguably wanton or reckless in firing wildly, why was he not charged with manslaughter in relation to Taylor? After all, Kentucky law provides that a “person is guilty of manslaughter in the second degree when he wantonly causes the death of another person.”

The hitch is the word “causes.” First, the grand jury found that, although Taylor was shot six times, only one shot was fatal. One set of tests concluded that the bullet that killed Taylor came from the gun of a fellow officer, not from Hankison’s gun, while another set of tests was inconclusive. Thus, it would be hard to prove that he caused her death.

The second reason is a bit more complicated: even if a jury could find that Hankison caused Taylor’s death, that is not enough; it would have to find that he caused her death through his wanton behavior. And Cameron was careful to point out that the grand jury determined that Taylor was next to Walker when she was shot. So any shots that Hankison fired toward Walker that ended up hitting Taylor were a result of justifiable, not wanton or reckless, conduct. Only the shots fired into the other apartment were within what we can call “the zone of wantonness.”

Two words of caution are in order. First, it is by no means certain that the grand jury got the facts right. Second, while the criminal liability stemming from this incident is limited, the same may not be true of the civil liability for violating Taylor’s constitutional rights. Her Fourth Amendment right to be secure in her home was arguably violated in a number of ways: by the fact that the warrant was executed in the dead of night, that it may have been issued without probable cause to think there were drugs on the premises, and that it may have been the product of a perjurious affidavit.

The outrage at this incident is absolutely justifiable. But based on the facts found by the grand jury, the indictment issued here seems appropriate.