Whether this was a case of injustice and great tragedy, racial or otherwise, is of no question, but whether the officers should have been charged with Murder is not quite as easily answered. As with all charging decisions, the answer comes only after careful application of the Kentucky statutes to the facts as determined by the evidence.
Some of the facts are still in dispute, but the most pertinent are as follows. The officers came to her apartment to execute a search warrant, which named her as a potential accomplice target to the principle target, who was her ex-boyfriend. It was a “Knock and Announce” warrant, and Ms. Taylor’s boyfriend, Kenneth Walker, claims they knocked but never identified themselves before breaking down the door. Upon battering the door down, Mr. Walker, believing they were intruders, fired one warning shot and struck Officer Mattingly in the leg.
“Hell” then essentially broke loose. Here are the key facts where the evidence is somewhat limited. The true question becomes whether the “hell” broke loose in both directions or just one. The ballistic evidence seems to confirm it was only from the direction of the police. The attorney general said a ballistics report by the FBI determined that Mattingly fired six times and his fellow officer Cosgrove fired 16 times. 1 of those 22 shots struck and killed Breonna Taylor. “Hell” also broke loose outside somehow, where Brett Hankison, a detective at the time, fired into the sliding glass patio door and window of Ms. Taylor’s apartment, both of which were covered with blinds. No shots were determined to have been fired from Walker after the initial warning shot.
Those are the pertinent facts, most of which are undisputed. Now as to the law. As to Murder, under Ky. Rev. Stat. § 507.020, a person must have the “intent to cause the death of another person”. Before even addressing potential self-defense claims, it is hard to prove that after being shot upon in the dark melee, the officers intended to cause either Ms. Walker or Ms. Taylor’s death. At the moment of the firing of the first return shot, it is near impossible prove, but by the time the 16th shot is fired by Officer Cosgrove, the haze of the melee would have seemed to at least lightened enough to know he was shooting at a person and thus intended the death.
The question then becomes, was the shooting justified as self-defense. Kentucky Statute 503.050 provides that “the use of deadly physical force by a defendant upon another person is justifiable under this subsection only when the defendant believes that such force is necessary to protect himself against death or serious physical injury”. Once Officer Mattingly is shot in a dark hallway after entering to execute a search warrant, it is near impossible the argue that he and Office Cosgrove would not be justified in returning that force. The real question is whether it was reasonable for Officer Cosgrove to believe it was still necessary to protect himself and his fellow officers as he continued to fire up to 16 shots. Darkness and chaos or not, only 1 shot had been fired in their direction.
Section of 503.120 of the self defense statute provides, that “if the defendant is wanton or reckless in believing the use of any force, or the degree of force used, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability”. It is more than arguable that Officer Cosgrove was wanton or reckless in his degree of force by the time he fired the 16th shot. That leaves the door wide open for a charge of Manslaughter in the second degree which provides that a defendant “wantonly causes the death of another person. Still far from a slam dunk in a trial against a police officer, but certainly more than enough for a Grand Jury to indict.
-Timothy Farrow is a Certified Criminal Trial Attorney with an office in Marlton, New Jersey.
