A former police officer was charged for a 2nd time in connection to the deadly Breonna Taylor raid. Experts explain why it's not double jeopardy.

A former police officer was charged for a 2nd time in connection to the deadly Breonna Taylor raid. Experts explain why it's not double jeopardy.
  • Former LMPD officer Brett Hankison has been charged for a second time in connection to the Breonna Taylor raid.

  • Legal experts told Insider it isn't a case of double jeopardy for Hankison.

  • However, they said federal prosecutors will have an uphill battle to win their case.

Former Louisville, Kentucky, police officer Brett Hankison found himself in an all too familiar situation on Thursday, when federal prosecutors filed charges against him and three other former or current police officers in connection to the March 2020 raid that led to Breonna Taylor's death.

Hankison was acquitted earlier this year in state court on other charges related to the raid.

Insider spoke to legal experts on Thursday who explained why — despite the previous acquittal — the new charges don't constitute double jeopardy. But they also said Hankison's previous acquittal and one of the counts against him could make the case against him particularly difficult for federal prosecutors to win.

Hankison's role in the raid on Breonna Taylor's apartment

Breonna Taylor, a 26-year-old EMT, was shot dead on March 13, 2020, when officers carrying out a search warrant in connection to a drug-trafficking investigation raided her home in the middle of the night.

The raid took Taylor and her boyfriend, Kenneth Walker, by surprise. Fearing that home invaders were breaking through their door, Walker grabbed his gun and fired shots at the officers, and they returned fire, killing Taylor.

Hankison was one of the officers who returned fire. He was outside the apartment at the time and fired through a sliding glass door covered with a blackout curtain, so he couldn't see what he was aiming at.

A ballistics report would later find it was the bullets from two other officers' guns, and not Hankison's, that killed Taylor.

But he was charged nonetheless because some of his bullets went through a wall and into a neighboring apartment, where there were three people home at the time.

Before Thursday, Hankison had been the only police officer to face charges in connection to the raid. Hankison was charged with three counts of wanton endangerment, but was acquitted on all three counts by a Louisville jury in March.

A grand jury declined to press charges against Sgt. Jonathan Mattingly and Det. Myles Cosgrove, the two officers who fired the fatal shots that killed Taylor.

Kentucky Attorney General Daniel Cameron said his office's investigation into the matter showed — and the grand jury agreed — that Mattingly and Cosgrove "were justified in their return of deadly fire" because Taylor's boyfriend fired at them first.

breonna taylor
Federal prosecutors charged four current and former Louisville police officers in connection with the fatal shooting of Breonna Taylor in March 2020.Leigh Vogel/Getty Images for Frontline Action Hub

Not a case of double jeopardy

As the Department of Justice's press release on the new indictments explain, the new charges against Hankison are separate and distinct from the state charges.

While the charges deal with the same incident and set of facts, the two civil rights charges allege "Hankison willfully used unconstitutionally excessive force, while acting in his official capacity as an officer, when he fired his service weapon into Taylor's apartment through a covered window and covered glass door," according to the press release. 

Those are "violations of the U.S. Constitution, rather than of state law" the DOJ explains.

Since Hankison is being charged in a different court, double jeopardy doesn't apply, according to Michael J.Z. Mannheimer, a professor at the Northern Kentucky University law school.

"Some people might think that the idea of double jeopardy prevents the federal government from coming in and trying him again, given that he was acquitted. But double jeopardy doesn't apply because it's a different sovereign. The state of Kentucky tried him, he was acquitted, and now the United States can come in as a separate sovereign and prosecute him," Mannheimer explained.

How likely is Hankison to be convicted this time?

While the US Attorney General's office has every right to prosecute Hankison for alleged civil rights violations, it doesn't mean it will be an easy win.

Mannheimer said one of the two counts will be especially hard to prove.

The first count relates to violating Taylor and her boyfriend's Fourth Amendment rights, which protect against unreasonable searches and seizures by the government. Federal prosecutors are arguing that Hankison used excessive force, which constituted an unreasonable search.

The second count relates to nearly injuring or killing her neighbors. But since her neighbors weren't the subject of the raid, the Fourth Amendment doesn't apply. Instead, prosecutors have to use the 14th Amendment, which states that no one should be deprived of "life, liberty, or property, without due process of law."

The burden to prove a 14th Amendment violation is much higher, Mannheimer said.

"They have to show that Hankison's actions were not simply unjustified, but were shocking to the conscience," Mannheimer said.

Daniel J. Canon, a civil rights lawyer and professor at the University of Louisville's law school, agreed that Hankison's case would prove more challenging than the cases against the three other officers, which deal with falsifying information on an affidavit to get a search warrant for Taylor's home and then trying to cover up their tracks.

Canon compared the case to the one against Derek Chauvin, the former Minneapolis police officer who was found responsible for killing George Floyd in May 2020 by kneeling on his neck for several minutes during an arrest.

Chauvin was convicted of violating Floyd's civil rights but only after he was found guilty of murder on the state level. The opposite is true for Hankison, Canon said, since Hankison was acquitted before being charged federally.

"I think that says a lot about this DOJ. They're willing to take chances on a case like this, even when they know a conviction is not a sure thing. We haven't seen much of that in previous administrations," Canon said.

He said prosecutors might have the advantage of a different jury pool than the one which decided the state case. While jurors in Hankison's previous case would have been chosen from within Jefferson County, Kentucky, which encompasses the Louisville metropolitan area,  a federal trial would draw from a wider pool of Jefferson and surrounding counties.

And while federal juries tend to be less sympathetic to criminal defendants, Canon said, it remains to be seen whether that holds true in this type of case.

"The surrounding counties tend to be more rural conservative and a lot more unfriendly to a defendant, but that dynamic may change when you have a white police officer who is the defendant," Canon said.

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