Shots in the Dark: How Local Governments Can Increase Police Accountability When States Refuse to

• Publication year: 2023

32 Shots in the Dark: How Local Governments Can Increase Police Accountability When States Refuse To

Marcia M. Ziegler

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32 Shots in the Dark: How Local Governments Can Increase Police Accountability When States Refuse To

Marcia M. Ziegler^*

On March 13, 2020, Breonna Taylor was shot to death in her apartment hallway by police officers executing a search warrant. The warrant was based on a false affidavit, the executing officers acted criminally on scene, and in the aftermath, detectives spread misinformation about the case on social media. While there was some limited accountability for the officers involved, many citizens considered the official response to be lackluster. After a period of public protest, Louisville and other cities all over the country have examined options for police reform at the local level. While most law enforcement agencies operate in a framework of state law that shields them through qualified immunity and other protective statutes, local governments do have the power to effect change. This Article reviews some recent initiatives nationwide related to police reform and discusses how local governing bodies can increase accountability.

I. Introduction and the Killing of Breonna Taylor

She was almost asleep when it began. Breonna Taylor went to bed in her Louisville apartment on the evening of March 12, 2020, and never left home alive again. Shortly after midnight, she was shot to death in

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her hallway by a Louisville Metro Police Department officer.¹ She was not the target of the investigation that night. She had neither resisted arrest nor interfered with the police. She posed no threat to anyone, nor was she involved in any illegal activity. Breonna's killing was the culmination of an investigation many view as being riddled with errors, missteps, and outright lies—and holding the officers involved accountable has proven difficult.²

The battering-ram search and shootout that killed Breonna started as a narcotics case.³ Two men were being investigated for selling drugs in a neighborhood miles away from Breonna's; one of them had dated her in the past. That man sent Breonna a package through the mail—a package that he says contained clothes and shoes. That lone incident proved the basis for the warrant to search her home the night she was killed.⁴ Detective Joshua Jaynes was the officer who obtained that warrant; his probable cause affidavit stated that he "verified with a U.S. Postal inspector' that the package Breonna received was suspicious.⁵ In the first significant misstep, this statement was allegedly untrue.⁶ He didn't verify anything with the post office but instead relied on someone else's word—the word of fellow Detective Jonathan Mattingly.⁷

Mattingly, for his part, had directed other detectives to ask their postal service sources whether the target of his narcotics investigation was sending Breonna suspicious packages. He wasn't, and they told Mattingly so.⁸ Nevertheless, this information didn't deter the operation. Instead, Mattingly was involved in executing the warrant that night; along with Detectives Brett Hankinson and Myles Cosgrove, the team took a battering ram to Breonna's door at midnight. Both Breonna and her boyfriend thought they were being robbed, and her boyfriend shot at the perceived intruder. officers responded with thirty-two shots into

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their home, into the neighboring apartments, and five into Breonna who died in the hallway.⁹ Mattingly, the only police casualty, suffered one shot to the leg from which he recovered.¹⁰

This literal overkill proved to be the second major violation of police policy and the law.¹¹ Hankinson, whom the police chief described as "blindly' shooting into not only Breonna's home but a neighboring apartment, fired at least ten shots without having a clear target.¹² At the time, a man, a pregnant woman, and her five-year-old child were home next door to Breonna.¹³

After she was shot five times, Breonna received no medical intervention for over twenty minutes.¹⁴ This third significant error was exacerbated by the fact that, again, contrary to police policy, the ambulance that had been standing by on scene had been told to leave about an hour before the raid. Officers turned their attention away from Breonna in the hallway to their wounded comrade who recovered from his lone shot to the leg. These same officers did not render aid to her as she choked and struggled to breathe before her death.¹⁵

Breonna Taylor's killing was the impetus for widespread protests across the country and, in the aftermath of her death, many wanted more accountability for the officers whose lies, mistakes, and blatant disregarding of police policy killed her.¹⁶ That accountability was hard to come by. The initial criminal repercussions resulting from the state and local investigation were minimal. When Attorney General Daniel Cameron presented the case to a grand jury, the officer who shot Breonna was not indicted, no homicide charges resulted, and only one officer was indicted on state misdemeanor charges for shooting into a neighboring residence.¹⁷ There were no local repercussions for the officers involved in

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the application for the search warrant and even the misdemeanor charges ended up in an acquittal.¹⁸

The Louisville Metro Police Department also did little to discipline the officers from an employment standpoint, and the repercussions were incongruous at best. Hankinson, the only officer who faced local charges, was fired within ninety days. Cosgrove, the officer who actually shot Breonna, was not fired until January 2021.¹⁹ Mattingly was allowed to retire from the force; he wrote a book "to set the record straight' and is reportedly considering a Congressional run.²⁰ No other officers involved in the warrant application suffered criminal or employment consequences as the result of the state investigation.²¹

All of these repercussions, as ineffective as each arguably was, were reactive in nature—to prevent the next unnecessary death, measures must be proactive. Municipalities all over the country have considered the steps they can take to prevent this from happening, but their power is limited by state law, often by design. Much of the research in the area of police accountability focuses on state and federal solutions, and articles which focus on local options typically discuss singular solutions. This Article reviews a variety of local approaches to accountability, especially those which might apply in states where the political climate is resistant to change. It discusses the state framework, scholarly approaches to accountability, and how local governments all over the country are impacting change even in the face of state opposition. However, what works in one locality might not even get a vote in another as the political landscape varies widely even across a given state. As a result, this work seeks to discuss various options without necessarily advocating for one over another. Even small changes might allow for larger future reforms, and municipalities have plenty of options.

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II. THE FRAMEWORK OF STATE LAW

Historically, state law is protective of police officers, whether by establishing affirmative protections and defenses or from its application of qualified immunity to state actors.

A. Qualified Immunity

Qualified immunity is a legal standard that protects law enforcement officers from civil liability under the historical concept that a sovereign can only be sued when it so allows.²² In state cases, a law colloquially known as Section 1983²³ allows citizens to sue state law enforcement actors when the police violate their constitutional rights.²⁴ It was not until 1971 that the Supreme Court of the United States allowed such a case under the Fourth Amendment against federal actors.²⁵ In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,²⁶ the Court set forth the standard that "[t]he qualified immunity defense shields 'government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"²⁷ In order to hold a law enforcement officer liable for any damages, up to and including the death of an innocent civilian, it must be shown that the officer violated a "clearly established" constitutional right.²⁸ While "there does not have to be 'a case directly on point,' existing precedent must place the lawfulness of the particular [conduct] 'beyond debate.'"²⁹ In order to find an officer liable, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."³⁰

In practice, this standard essentially means that unless a specific pattern of conduct has already been "clearly established" as unconstitutional, a police officer will escape liability for it, no matter how devastating the results. Courts have reviewed all kinds of police conduct

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that many citizens would view as obviously problematic and found the officers involved to be protected by qualified immunity. In Corbitt v. Vickers,³¹ the United States Court of Appeals for the Eleventh Circuit held that an officer's conduct did not meet the standard of "clearly established" as unconstitutional in examining the execution of an arrest warrant.³² The subject was in the home, and an officer had handcuffed several children in the backyard.³³

The family dog, "Bruce," was present during the operation. At that point, Officer Vickers—deputy sheriff for Coffee County—discharged his firearm at Bruce, but the shot missed. It is undisputed that Bruce did not pose a threat and was not aggressive, and no other officers made an effort to subdue the dog. Bruce retreated under the house after the first shot. After Bruce came out from under the house, Vickers fired at the dog

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