Police officers should not be charged with Breonna Taylor's death, criminal law experts say

LOUISVILLE, Ky. – LeBron James wants them charged. So does Beyoncé.

And so do 10 million other people who have signed a petition at change.org demanding justice for Breonna Taylor – and that Louisville Metro Police Sgt. Jonathan Mattingly, Officer Myles Cosgrove and ex-Officer Brett Hankison be charged with killing her.

But in interviews and emails, seven experienced Louisville defense lawyers who are not involved in the case – and who have an average of 37 years each in practice – say the officers should not be charged with murder or manslaughter because they had a legal right to defend themselves once her boyfriend shot at them.

Three of the attorneys are Black.

“It is unfortunate that this young lady was killed,” said Aubrey Williams, a former president of Louisville’s NAACP chapter who has spent much of his 40-year career fighting police in court.

“But for the life of me I don’t see them indicting or convicting.”

Jan Waddell, another defense lawyer who is Black and has likewise frequently tangled with police, also said Mattingly and Cosgrove are likely immune from prosecution. Waddell said Kentucky law allowed them to return fire in self-defense when Mattingly was hit in the leg with a bullet fired by Taylor's boyfriend, Kenneth Walker, who said he didn't know the intruders were police and thought the couple was being robbed.

“The seemingly unending list of unarmed Black men who have been and continue to be gunned down by white police officers ... does not and cannot justify the return of an indictment based on revenge rather than the facts of the case and the law,” Waddell said.

In an interview, Sam Aguiar, a civil lawyer for Taylor’s family, acknowledged Louisville police had a right to return fire immediately after they were fired upon shortly after midnight March 13. But he said evidence shows they continued to shoot after they were no longer in danger.

He cites a 911 call from a neighbor who reported hearing gunfire, then 68 seconds later in the same call said she heard more.

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Most of the lawyers, who include three former prosecutors, said Hankison should be charged with wanton endangerment. Acting LMPD Chief Robert Schroeder fired him for showing "extreme indifference to the value of human life" when he "blindly fired 10 rounds into the back of Taylor's apartment and the one next door without verifying they were directed against someone who posed an immediate threat."

Hankison’s attorney, David Leightty, said in appealing his client's termination in June that the officer fired his gun “in quick response to the gunfire directed at himself and other officers” and did not fire blindly into Taylor’s apartment.

Leightty said he is not a criminal attorney and declined to comment on whether his client should or will be charged with a crime.

Waddell and two other lawyers, Ted Shouse and Guthrie True of Frankfort, said they think Mattingly and Cosgrove will be charged in Taylor’s death only if Kentucky Attorney General Daniel Cameron believes his office can prove the warrant to search her apartment was obtained fraudulently by another detective – and Mattingly and Cosgrove knew that.

“That’s a big if,” Shouse said.

Detective Joshua Jaynes said in an application for the search warrant that a U.S. postal inspector verified that an alleged drug dealer was receiving packages at Taylor’s home, but the inspector later told WDRB that no suspicious packages were being sent to Taylor.

The FBI is investigating the circumstances surrounding the March 13 warrant, and Jaynes has been placed on administrative reassignment. He did not respond to an email seeking comment and has not responded to a request for comment left with LMPD.

Jaynes could be charged with false swearing, at a minimum, Shouse said, if he knowingly included false information in the warrant application.

If Mattingly and Cosgrove knew the warrant was obtained improperly, Waddell and the other two lawyers said, the search may have been unlawful, which would mean they could lose their right to self-defense.

But other attorneys – including the former prosecutors – say that argument is far-fetched and it is unlikely Cameron would pursue a prosecution based on that theory.

Cameron, who has been investigating the shooting since May 13, when Commonwealth's Attorney Tom Wine requested a special prosecutor, has declined to comment on when or whether he will present the case to a grand jury.

Under state law, the use of deadly force is justified by anyone – civilian or police – if that person believes such force is necessary to protect them against death or physical injury.

Louisville Metro Police policy also says officers may use deadly force when the officer reasonably believes “based on the facts and circumstances that the person against whom the force is used poses an immediate threat of death or serious injury.”

Mattingly has told investigators that even though police had a "no-knock" warrant, he knocked repeatedly on the door of Taylor’s apartment and announced he was an officer before he and Cosgrove used a battering ram to knock the door down when nobody answered.

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Mattingly said when they entered, a man who turned out to be Taylor’s boyfriend – Walker – fired one shot that struck him in the leg. Mattingly, Cosgrove and Hankison returned fire, Hankison from the back of the apartment.

Taylor, 26, was shot five times and died in her hallway.

Walker has said he fired what he described as a warning shot, to stop what he thought might be a robbery.

“Where a shot is fired by someone in the house, it is logical and pursuant to training that the officer or officers would return fire,” said Frankfort attorney William E. Johnson, who was admitted to practice in 1957 and is considered the dean of Kentucky criminal defense lawyers.

Other lawyers said if police are not allowed to return fire when they are shot at, nobody would be willing to work as an officer.

All the attorneys contacted by The Courier Journal, part of the USA TODAY Network, described Taylor’s death as a tragedy and several said her family deserves to be compensated by the city for their loss.

“This case is an unmitigated disaster,” Shouse said. “It stinks to high heaven. We can either acknowledge this and make much needed reforms, or we can do what appears to be happening: using the same old playbook and hoping this mess will blow over. It won't.”

Three months after the Taylor shooting, the city banned no-knock warrants. However, Shouse suggested two other reforms: assigning warrant applications to judges at random, rather than letting police officers shop for one they think will be accommodating, and recording the conversations between judges and officers.

“Every other interaction between a judge and a player in the criminal justice system is recorded," he said. “Why not this?”

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The attorneys for Taylor’s estate, Aguiar and Lonita Baker of Louisville and Benjamin Crump of Tallahassee, Florida, have called for criminal charges against the three officers. Aguiar said Hankison should be charged with attempted murder.

Mattingly and Cosgrove were placed on administrative assignment.

Attorney Marc Murphy declined to say if he thinks they should be charged in Taylor’s death. But he said prosecutors will have to look at their individual conduct – and Hankison’s – and their conduct together, because under Kentucky law, if a person is murdered through the collective efforts of three people, all can be charged with murder regardless of whose bullets actually caused the death.

Taylor’s death has prompted an international outcry and more than 60 days of protests throughout Louisville.

Williams said he understands the “anger of LeBron and Beyoncé” and other protesters and applauds them for expressing their pain.

“But just because we have had these brutal things that have happened to our people down through the ages doesn’t mean these cops should be charged,” he said.

Waddell, who has won exonerations for Black people convicted as a result of police incompetence and misconduct, said: “If we, as Black people, are willing to condone the return of an indictment for murder when the facts ... clearly do not justify the return of such an indictment, then we will lose our moral authority.

“If we want ‘equal justice,’’’ he said, “we must we willing to accept that the police are also entitled to ‘equal justice’ when the facts and circumstances demand it.”

Follow Louisville Courier Journal reporter Andrew Wolfson on Twitter: @adwolfson

This article originally appeared on Louisville Courier Journal: Breonna Taylor case: Should Louisville police be charged in her death?