Why the officers who shot and killed Breonna Taylor may never be arrested

The entire internet, it seems, is calling for the arrest of the officers who killed Breonna Taylor in her Louisville, Kentucky, home.

The viral meme goes like this: take any subject and insert a reference to Taylor. For example, on the first day of the delayed baseball season the Tampa Bay Rays tweeted: “Today is Opening Day, which means it’s a great day to arrest the killers of Breonna Taylor.”

But it’s not that simple, partly because of a tangled legal doctrine that applies to Kentucky and 28 other states. There is no specific law in these jurisdictions addressing police shooting in self-defense, which means officers have the same rights and obligations as any resident. Yet police have the unique power to initiate violence–like knocking down the door of a private home in the middle of the night–that other people don’t.

Taylor, a 26-year-old emergency room technician, was struck by eight police bullets in March as officers attempted to serve a no-knock warrant on her home during a narcotics investigation. Her boyfriend, Kenneth Walker, fired his gun first, believing intruders were invading their home and striking an officer in the leg. Officers returned fire. No drugs were found in the home.

Those circumstances make this case more legally ambiguous than it may seem at first glance, said Seth Stoughton, a professor at the University of South Carolina School of Law.

“Most states don’t allow someone to claim self-defense when they are an aggressor,” he said. “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.”

So both Walker and the police can reasonably claim self-defense, and the law makes it virtually impossible to define an “aggressor” in the situation. A kind of self-defense stalemate that leaves a lot of questions as to what charges a prosecutor could bring in Taylor’s case – and could even lead to the end of the no-knock raid in American policing.

‘Castle doctrine’

Legal experts say the officers involved in Taylor’s shooting – Sergeant Jonathan Mattingly and officers Brett Hankison and Myles Cosgrove – certainly can be arrested. Prosecutors wield tremendous discretion in their decisions to bring charges, and “probable cause,” the legal standard of proof needed for an arrest is “an exceedingly low bar”, said Colin Miller, a professor at the University of South Carolina School of Law researching the Kentucky criminal code on behalf of lawyers representing Taylor’s family. “If you have a shooting death, it’s going to be pretty difficult to argue you can’t at least charge some type of crime in that case, whether it be endangerment manslaughter or murder.”

The Taylor case is complicated by the so-called “castle doctrine”, which