Tale of Two Justice Systems: Breonna's Law and Qualified Immunity
Chris Fong Chew and Josephine Chou
an article by Josephine Chou and Chris Fong Chew
March 13th, 2020. Three police officers quietly line up in front of an apartment in the South End of Louisville, Kentucky. Inside, an African American couple, Breonna Taylor and Kenneth Walker, are asleep in bed, unaware of what is outside their door. Officers Brett Hankinson, Jonathan Mattingly, and Myles Cosgrove were recently handed a no-knock warrant to search the apartment in connection to a narcotics investigation. A judge had signed the warrant, since police believed that the apartment had been used to receive packages containing drugs.
A little past midnight, the officers lined up behind the door, allegedly knocking first, and then used a battering ram to break down the front door. They were met with gunfire from Kenneth Walker (a legal gun owner), who fired his gun in self defense, fearing for his and his girlfriend’s life. One of the officers was struck in the leg and the other officers returned fire, discharging almost 20 rounds, hitting Breonna Taylor eight times. She later died at the scene: she was unarmed, posed no threat to the officers, and was asleep in her bed. Police later searched the apartment and found no drugs.
A 911 call that was later released reveals Walker’s cries for help while on the phone with dispatchers stating, “I don’t know what happened… someone kicked in the door and shot my girlfriend.” Walker was later arrested and charged with attempted murder of a police officer. Subsequently, these charges were dropped and the officers have been placed on paid administrative leave pending investigation.
Breonna was an EMT who worked between two hospitals helping with the coronavirus response in the city. Her mother said she had big dreams for the future. She recalled to The Courier Journal, “She has a whole plan of becoming a nurse and buying a house and then starting a family.” All of which were abruptly cut short that night.
Breonna’s story went mostly untold for months. Her boyfriend remained in police custody charged with attempted murder of a police officer. The Taylor family filed a lawsuit against the police department for “wrongful death, excessive force, and gross negligence.” After all, how could three officers serving a no-knock warrant end up shooting a woman who posed no threat and was asleep in her bed eight times? The officers involved in the case claimed that they had announced themselves upon arrival and only broke down the door after there was no response. They also claimed that they only fired after being shot at. However, the lawsuit alleges that police did not identify themselves and that Walker thought someone was breaking in. Neither Taylor nor Walker have a criminal history, nor history of drug use.
For months, no action was taken. The police who had shot Breonna were free, Kenneth Walker was still charged for attempted murder, and the Taylor family mourned the death of Breonna, while the nation was struggling with one of the biggest health crises in decades.
On May 25th, 2020 the world was shocked and polarized over videos of the killing of George Floyd by the hands of the Minneapolis Police Department. As the video surfaced, many people began to protest against excessive police violence and brutality plaguing the nation. Black Lives Matter, a movement started in 2013 over the murder of Treyvon Martin, recently began to regain momentum over what had happened to Floyd. Angered over centuries of unaddressed oppression, racism, and violence against the Black community, more and more people began to speak out against racism and racial violence in the United States. Breonna’s story began to spread and pressure began to mount in Louisville as activists, attorneys, and civilians began to question how an unarmed black woman who was asleep in her bed ended up dead at the hands of police.
Nearly two months later after her death, Breonna’s story started to become a popular reference to the mass injustice against Black people: an African American EMT who was shot in her sleep by police while her boyfriend was arrested and charged with attempted murder of a police officer. People began to organize around Breonna, making calls, and signing petitions. On May 26th 2020, Kenneth Walker had the charges against him dropped. Although he was again free, this only brought little justice to Breonna.
While protest and riots consumed Minneapolis, pressure mounted to arrest the officers involved in the killing of George Floyd. On May 29th, ex-officer Derek Chauvin was brought into custody and charged with 3rd degree murder (voluntary manslaughter), which has since been elevated to 2nd degree (Intent to kill, but not a premeditated murder). The arrest of Chauvin and the officers present while Floyd was murdered ignited more and more discussions on why the same hadn’t happened in Louisville.
On June 11th, the Louisville City Council unanimously passed “Breonna’s Law,” which bans no-knock warrants like the one that resulted in Breonna’s tragic death. Louisville mayor Greg Fischer voiced his concern about the warrant and “wholeheartedly [agreed] with Council that the risk to residents and officers with this kind of search outweighs any benefit” (New York Times). In addition to banning no-knock warrants, Breonna’s Law requires police to wear body cameras while conducting searches to prevent rash threats or shootings as the actions of officers will be witnessed by other authorities. Amidst the Black Lives Matter Movement and protests for Breonna’s killers to be charged, the government and citizens alike sympathize with the 26 year-old’s family, continue the fight against police brutality, and honor Breonna with this new law.
The no-knock warrant, which aims to decrease recreational drug possession and usage, was included as a part of federal enforcement for the 1986 Anti-Drug Abuse Act. In most cases, police use a “quick-knock approach” upon entering premises for conducting searches; however, the abruptness of a no-knock search is meant to limit the amount of time a person has to hide evidence of drugs or be in a position to physically threaten police officers.
In theory, no-knock warrants are to be carried out only in extremely precarious surroundings, yet they have become almost common for raids. 20,000 or more no-knock searches are carried out per year, with 10% of them involving a judge approving a no-knock search when officers only ask for a regular warrant. An arrest warrant gives officers permission to arrest the person/persons named in the warrant. Permission is marked by the signature of a judge. A no-knock warrant, too, must be signed by a judge in order for officers to carry out the surprise raid. 1962 court case Ker v. California referenced the Fourth Amendment’s protection against illegal searches by ruling a no-knock warrant based on assumptions of drug possession as lawful. 30 years later in the case Richards v. Wisconsin, the court determined that officers have “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.” (Justia US Law) The specific circumstance which would involve such an unannounced search is described as “dangerous.” However, numerous no-knock warrants of less dangerous scenarios have also been conducted; some with the intent to prevent destruction of evidence, resulting in deaths of civilians such as Breonna Taylor. Banning the no-knock warrant not only prevents possible miscommunications, but also lives from impulsive violence.
Breonna’s story brings up a major division between the justice system and city governments. When Breonna’s law was passed, numerous questions were brought up on how a law could be named after Breonna while the police officers that murdered her still walked free. All three officers, Jon Mattingly, Brett Hankinson, and Myles Cosgrove, were placed on administrative leave, while officer Brett Hankinson was only fired over his use of deadly force. Fired.
A big reason why so many officers are able to get away with inhumane and illegal acts of violence is qualified immunity. Qualified immunity is a legal immunity first introduced in 1967 by the U.S. Supreme Court to protect law enforcement officers from liability while on the job (mostly pertaining to just FBI agents). The law prevents a victim from being able to file a lawsuit against law enforcement officials in unclear legal situations where the officers supposedly acted in “Good Faith.” Since 1967, the doctrine has been modified several times, expanding what falls under “qualified immunity.”
The 1982 Supreme Court case Harlow v. Fitzgerald ruled that police officers were protected under qualified immunity. It was again expanded in 1987 in the case Anderson v. Creighton, which ruled that law enforcement officers could be protected under qualified immunity when conducting a search in violation of the Fourth Amendment (protection against unreasonable search and seizures). In 2001, the case Saucier v. Katz created a two step test for determining whether an officer was protected by qualified immunity in a lawsuit:
1. First, a court must look at whether the facts indicate that a constitutional right has been violated,
2. If so, a court must then look at whether that right was clearly established at the time of the alleged
This test was later expanded in the 2009 Pearson v. Callahan case to say that the test can be applied, however, it gave courts more discretion on whether to use the test or not. This allowed for qualified immunity to be declared more easily in the justice system. The case also ruled that "[a]n officer conducting a search is entitled to qualified immunity where clearly established law does not show that the search violated the Fourth Amendment." The slow but incredible expansion of qualified immunity over the years has given an unprecedented amount of power to law enforcement agents, including police when on the job. This is a clear example of corruption when law enforcement agents can violate citizens’ constitutional rights while the justice system simply turns a blind eye. How can police officers enforce the law when they in turn aren’t necessarily required to follow it themselves? It is a perplexing moral dilemma that leads to the unjust violence, jailing, and murder of US citizens. This could not be exemplified more by the fact that Kenneth Walker was arrested and charged with attempted murder for shooting an officer in the leg out of self defense. Meanwhile, the three officers who shot Breonna Taylor eight times still walk free today.
Sadly, only by witnessing such tragedies have people been filled with outrage and drive for reform. We know that systemic racism exists when we think about racial stereotypes. Why are Black people labeled uneducated and poor? Why is there such a significant welfare gap between Black and White communities? White America was built upon the institution of slavery that ran so deep even after slavery was abolished that Blacks - after centuries of oppression - continue to be marginalized, discriminated against, and judged solely for their skin color. The Black Lives Matter Movement, dedicated to anti-racism advocacy, was created in 2013 following the death of 17-year-old Trayvon Martin by a gunshot wound at the hands of a police officer he had a physical altercation with. Since then, Michael Brown, Eric Garner, Tamir Rice, Troy Robinson, Breonna Taylor, and countless more have been killed due to racial police brutality.
Despite the inception of such a powerful movement 7 years ago, officers in police brutality cases have only recently been called to their long due responsibilities today, starting with Officer Derek Chauvin. Breonna Taylor’s case remained silent for two months following her death. No footage of her death was obtained given the sudden situation and her killers remain unprosecuted today. But we have the power to change that.
As rallying cries for Breonna’s killers to be charged ring across the nation, the enactment of Breonna’s law in Louisville, Kentucky marks the start of change amid the 26 year old’s unjust death. Though officers involved in Breonna’s death have yet to be charged and prosecuted, voices of all races and ethnicities have united in demanding justice for Breonna through protests, social media, petitions, conversations with loved ones, letters to the Kentucky Police Department, and more. The passing of Breonna’s Law in Louisville has been met with immense support and calls for other 49 states to follow suit. Even if qualified immunity and claims of self defense prevent officers Jonathan Mattingly, Brett Harrison, and Myles Cosgrove from being prosecuted, we must continue to say her name, share her story with our communities, protest, and demand justice for Breonna Taylor.
- Josie and Chris
https://www.yalelawjournal.org/article/how-qualified-immunity-fails#:~:text=Defendants%20raised%20qualified%20immunity%20in%2037.6%25%20of%20the%20cases%20in,the%20defense%20at%20that%20stage. -- stats on Qualified Immunity
"Deadly police raid fuels call to end 'no knock' warrants"
Private Prisons: https://www.youtube.com/watch?v=yqQa_0gM6hg