The Breonna Taylor grand jury findings: Separating fact from fiction and rhetoric from the rule of law
Paramount in the grand jury’s findings was that although the warrant contained a ‘no-knock’ provision, it was not served in that manner
On September 23, a Kentucky grand jury that had heard evidence to which the public and journalists have not been privy released findings and indictments that answered questions, exonerated two of the three officers and led to three felony charges against a 21-year law enforcement veteran.
Here are three key points to consider from the jury’s findings and indictments:
1. The Louisville officers announced themselves
Paramount in the grand jury’s findings was that although the warrant contained a "no-knock" provision, it was not served in that manner. The jury found that Sgt. Jonathan Mattingly, Detective Myles Cosgrove and Detective Brett Hankinson announced themselves as law enforcement officers prior to making entry into the dwelling. This singular fact likely carried a great deal of weight when the grand jury considered whether the LEOs were culpable for the death of Breonna Taylor.
2. Breonna Taylor’s boyfriend fired a shot
The next critical juncture for the grand jury was a determination that Breonna Taylor’s boyfriend, Kenneth Walker, fired a shot from a nine-millimeter pistol that struck Sergeant Mattingly in the thigh. All LEOs were armed with .40 caliber weapons. Walker’s shot justified the use of deadly force by Sergeant Mattingly and Detective Myles Cosgrove and the grand jury ultimately determined that Detective Cosgrove fired the shot that killed Breonna Taylor. The grand jury determined the officers were justified in using deadly force to protect themselves and cleared Mattingly and Cosgrove of criminal wrongdoing under Kentucky law.
3. Detective Brett Hankinson fired rounds through a window
The three counts of Wanton Endangerment in the First Degree, a Class D Felony, brought against former Detective Brett Hankinson stem from his reportedly firing rounds through a window that entered a neighboring apartment. The statute, case law and official commentary provide insight into the grand jury’s decision, and also difficulties facing the prosecution moving forward.
Kentucky law defines Wanton Endangerment in the First Degree, KRS § 508.060, as follows:
A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.
The grand jury apparently found that Hankinson was not justified in the direction or in the manner in which he fired. A comment by the Kentucky Crime Commission poses the following hypothetical regarding this statute:
The offenses created by [Wanton Endangerment in the First Degree] and [Wanton Endangerment in the Second Degree] can best be described by use of this hypothetical situation: D, with no intent to kill or injure but with an awareness of the risk involved, shoots a gun into an occupied building, thereby consciously disregarding the risk of death or injury to its occupants.
The grand jury specifically found no conclusive evidence that Hankinson’s rounds struck Taylor.
The prosecution must convince a jury that the shots fired by Kenneth Walker at Mattingly did not justify Hankinson’s use of deadly force. Kentucky law provides Hankinson several defenses including immunity from prosecution if his actions were in self-defense, defense of another, or the lawful performance of his sworn duties. In short, these charges mark the beginning of a likely long road.
In what has become commonplace, it appears that the United States Department of Justice will also examine the evidence to determine if federal civil rights charges are warranted. The actual use of force by Mattingly and Cosgrove will likely also be excused by federal authorities as such charges carry the burden of proving a willful deprivation of civil rights.
As to Hankinson, the analysis is cloudier. Wanton acts are not necessarily “willful” acts. As outlined in the commentary above, Wanton Endangerment in the First Degree can include acts committed with no intent to kill or injure but simply with an awareness of the danger those acts present. Further, it is important to remember that the victims in Hankinson’s case are the neighbors in the adjacent apartment, not Taylor. We have not heard any evidence of any intent to harm them.
This case will move forward while the debates continue outside the courtroom. Hopefully, the grand jury’s findings of fact will drive the analysis.
Note: The author is licensed to practice law in Georgia, Arkansas and Tennessee. His references to Kentucky law are for instructive purposes only.