Stanford’s David Sklansky on the Breonna Taylor Case, No-Knock Warrants, and Reform

Breonna Taylor, a 26-year-old Black medical worker in Louisville, Kentucky, was shot to death by police shortly after midnight on March 13, 2020, in the apartment she shared with her boyfriend, Kenneth Walker. The police had a no-knock warrant and entered with a battering ram to search for evidence of drug dealing; none was found.  Last week a Kentucky grand jury indicted a now former detective of the Louisville Police Department, Brett Hankison, on charges of reckless endangerment for his role in the raid. No chargers were filed, though, against Jonathan Mattingly and Myles Cosgrove, the two officers who fired shots inside the apartment, and no one was charged with killing Taylor. Here, Stanford Law Professor David Sklansky discusses the case and the use of no-knock warrants—and reforms that might prevent unnecessary death and injury in the future.

Was the decision to charge only one officer, and only for reckless endangerment, legally sound?

It’s hard to say, because grand jury proceedings in Kentucky, as elsewhere, are secret. The investigation was overseen by Kentucky’s Attorney General, Daniel Cameron. Cameron said at a press conference that it isn’t completely clear which of the two officers who entered the apartment, Jonathan Mattingly or Myles Cosgrove, fired the bullet that killed Taylor. He also said that both officers were justified in firing their weapons, because Mattingly had been shot in the leg by Kenneth Walker after the officers broke down the door to the apartment. But Cameron did not disclose all the evidence given to the grand jurors, or even what charges had been presented to them.

Stanford Law Professor David Sklansky

Are we certain that Breonna Taylor’s boyfriend fired first? And if yes, what does that mean for the police officers who fired next?

It’s undisputed that Walker fired first, although there may be some question about whether the bullet that struck Mattingly came from Walker’s gun or from Hankison’s.  Cameron said that the ballistics tests made clear that the bullet came from Walker’s gun, but news reports over the weekend cast some doubt on that.  Regardless, Walker says plausibly that he fired because he didn’t know the intruders were police officers; all he knew was that armed men had broken into the apartment in the middle of the night.

Still, if the police acted lawfully in entering the apartment, the law allowed them to fire in self-defense, even if Walker was also acting within his rights. Hankison, the only officer who was charged criminally last week, had fired blindly into the apartment from outside, through a window and patio door.  He was charged with reckless endangerment, not homicide, because his bullets didn’t hit Taylor.

None of this, or course, addresses why armed police officers were breaking down Breonna Taylor’s door in the middle of the night in the first place.

Cameron said that the charging decisions were made by the grand jury, not by prosecutors.  Is that a fair way to characterize what happened?

Yes and no. Cameron said that his office just presented information to the grand jury, and that they then made the charging decisions. When a grand jury failed to return charges in 2014 against the officer who had fatally shot Michael Brown in Ferguson, Missouri, the head prosecutor in St. Louis said the same thing. And it’s true that grand juries typically must approve an indictment before a serious criminal case commences. But grand juries are heavily influenced by prosecutors. In the vast majority of cases they approve whatever charges prosecutors propose. So it’s likely that the grand jury’s decision in this case simply ratified the decision made by Cameron’s office, just as the decision not to charge the officer who shot Michael Brown was made in the first instance by prosecutors.

Breonna Taylor’s family has called on Cameron to release the transcripts of the proceedings before the grand jury. Does he have authority to that, and would it be appropriate?

Cameron said at his press conference that he wasn’t releasing information about the grand jury proceedings because there was a pending indictment and also an ongoing federal investigation.  But that argument was undercut by the fact that he did discuss some of the evidence that he said his office had presented to the grand jury—the evidence that he said supported the grand jury’s charging decisions.

It’s not clear if Cameron has the authority under Kentucky law to release the grand jury transcripts on his own, but he certainly could do so with a judge’s approval. Unless there is serious reason to think that releasing the transcripts would jeopardize the fairness of Hankison’s trial or the ongoing federal investigation, which seems unlikely, there’s a good argument for releasing the transcripts. Without knowing all that was presented to the grand jury, and not just the parts that the prosecutors chose to make public, it will be difficult for Taylor’s family or for the public to be confident that justice is being done. There is a great deal about the raid that remains unclear—why, for example, the officers fired more than twenty-five rounds, hitting Taylor six times, and why Taylor was not given medical attention for more than twenty minutes after she was shot.

It has been reported that the police had a warrant allowing them to enter Taylor and Walker’s apartment without knocking and announcing their presence, even though neither Taylor nor Walker had a criminal record.  What was the basis for the warrant?  

The Louisville police obtained a “no-knock” warrant to search Taylor’s apartment as part of their investigation of a man named Jamarcus Glover for drug trafficking. Glover was a former boyfriend of Taylor, and the application for the search warrant was supported by an affidavit from an officer who said he saw Glover walk into Taylor’s apartment and then leave the apartment with a package. The affidavit also said that a United States Postal Inspector reported that Glover had been receiving packages at Taylor’s address. This apparently wasn’t true. In any event, that allegation, together with the claim that Glover had been seen going into Taylor’s apartment and leaving with a package, was the basis for searching Taylor’s home.

The basis for requesting a no-knock warrant was a representation in the same affidavit that Glover and the other main subject of the investigation had had a history of fleeing from law enforcement and trying to destroy evidence. The warrant application also suggested a no-knock warrant was appropriate because Glover and his alleged partner had “cameras on the location that compromise Detectives once an approach to the dwelling is made,” but this language seems to have been copied erroneously from applications to search other locations as part of the same investigation.

So was the warrant properly obtained?

No, I wouldn’t say so. Warrants obtained by use of intentional or reckless misrepresentations are invalid under the Fourth Amendment. And even if the errors in this application—or what seem to be errors—weren’t intentional or reckless, carelessness about these kinds of important details in seeking permission to invade someone’s home in the middle of the night would still be very troubling. Without the information allegedly received from the Postal Inspector, the basis for searching Taylor’s apartment at all—let alone knocking the door down in the middle of the night—was very thin, likely below the legal requirement of probable cause.

Beyond that, and even assuming everything in the warrant affidavit is accurate, it’s not clear that the police satisfied the legal requirement for a no-knock warrant. Fourth Amendment law requires a no-knock search to be based on reasonable suspicion that knocking and announcing the presence of the police would be dangerous, pointless, or a threat to the effectiveness of the investigation, for example by leading to the destruction of evidence. But there wasn’t anything in the affidavit suggesting that Taylor or her current boyfriend, Kenneth Walker, were dangerous or that they would destroy evidence or do anything else to obstruct the investigation before letting the police in.

Did the police actually enter without knocking and announcing?

That’s disputed. Cameron said that the police did knock and announce. He based that conclusion on the officers’ own statements, and on a statement from a neighbor that he said corroborated their account. But reporters have spoken with twelve neighbors, and only one recalled hearing an announcement. For his part, Walker said that he only heard pounding on the door, for somewhere between 30 and 45 seconds. That raises another question: how long the officers waited after knocking, whether or not they also made clear who they were. Cameron refused at the press conference to say what evidence was presented about that to the grand jury.

Why are no-knock warrants typically obtained? How common are they? And do they often result in injury or death? It sounds like a very dangerous tactic, for police and suspects alike, particularly when carried out at night—and in a country with widespread gun ownership.

No-knock warrants are supposed to be used for situations where there’s good reason to think that the police will be endangered, or evidence will be destroyed, if the police give prior notice before entering. The tactic became much more common when the nationwide “war on drugs” began in earnest in the 1980s. We don’t have good statistics on no-knock searches, but they are clearly far from rare—we are probably talking about annual numbers in the thousands. The tactic appears to be used most frequently in drug cases, and it disproportionately impacts African Americans and other people of color.

And, yes, it’s a very dangerous tactic, particularly when carried out in the middle of the night.  With regard to deaths and injuries caused by no-knock searches, there are, again, no good statistics, because the federal government hasn’t collected this data. But the New York Times reported in 2017 that surprise entries carried out by SWAT teams executing search warrants resulted in the deaths of at least 81 civilians and 13 law officers over a six-year period. And that did not include deaths caused in no-knock entries by officers not part of a SWAT team, like the raid that killed Breonna Taylor.

On June 11, the Louisville Metro Council voted unanimously to adopt “Breonna’s Law,” which outlaws no-knock warrants.  Legislation has been introduced in the Kentucky legislature that would extend the ban statewide.  And Senator Rand Paul has authored a bill to ban no-knock searches at the federal level. What do you make of these initiatives?

They are small but important steps in the right direction. Florida and Oregon already ban no-knock warrants. But a knock and announcement followed by an immediate entry isn’t much better than just barging in. The police say they did knock and announce before breaking down the door to Breonna Taylor’s apartment, but Kenneth Walker says all he heard was banging for 30 or 45 seconds.

The fundamental problems are, first, the rampant militarization of policing in the United States, which can be traced back to the decision to frame the enforcement of drug laws as a “war,” and, second, the legal system’s laissez faire attitude toward police violence. If a group of private citizens broke into a house in the middle of the night and wound up shooting one of the occupants, even in self-defense, they’d all likely be charged with felony murder. In fact burglary is generally treated as a violent crime for purposes of sentencing enhancements even when the intruder is unarmed and slips in through an unlatched window, precisely because the fear and panic produced by a home intrusion can easily lead to bloodshed. But police violence of all kinds, including using a battering ram to break into someone’s home in the middle of the night, is largely treated as a technical or tactical choice, a matter for professional judgment.

The decision to execute a search warrant at night, the decision not to wait for the occupants to open the door, the decision to use a battering ram—all of these are unconstitutional if they are “unreasonable,” but courts usually defer to police officers about what force is reasonable. And even when the police do use force that is objectively “unreasonable,” the doctrine of qualified immunity blocks any civil suit against the officers unless there is an existing court decision condemning very similar police conduct in very similar circumstances.

If the police want to eavesdrop on someone’s telephone calls, they need to satisfy special, heightened requirements beyond the normal need of probable cause. They have to show that less intrusive investigative techniques won’t work, and they have to have a plan to keep their invasion of privacy as limited as possible. We don’t have rules like that for breaking into a house with a battering ram in the middle of the night. We treat police violence less seriously than we treat invasions of privacy. And it’s hard not to think that the reason we have special rules for wiretaps and no special rules for breaking into homes in the middle of the night is that everyone feels vulnerable to electronic snooping, but militarized police tactics are used disproportionately against people of color and other marginalized groups.

Is anyone likely to be charged criminally for Breonna Taylor’s death?  Will any of the officers involved face other consequences?

The detective who fired blindly into Taylor’s apartment was fired in June. The officer who wrote the affidavit for the warrant, but was not involved in executing it, has been administratively reassigned. He is also the subject of an internal investigation by the Louisville Metro Police Department, along with the two officers who entered Taylor’s apartment and three other officers.  That investigation could result in sanctions ranging from reprimand to termination.

There is also an ongoing federal criminal investigation into possible violations of Taylor’s civil rights. Cameron said that his investigation did not consider any problems associated with the obtaining of the search warrant, leaving that for the federal investigation. It remains to be seen how thorough that investigation will be.

David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. His new book, “A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice,” will be published by Harvard University Press in early 2021.