Was the grand jury’s decision not to indict any of the three police officers for Breonna Taylor’s death just? Why was there a warrant for the 26-year-old medical professional’s home in the first place, and why was it a no knock warrant? What do we know about what really happened that night?

Amy Swearer, a legal fellow at the Meese Center in The Heritage Foundation, joins us to break down all this and more. Listen, or read the lightly edited transcript below.

Katrina Trinko: Joining me today is Amy Swearer, a legal fellow in the Meese Center at The Heritage Foundation. Amy, thanks for joining us.

Amy Swearer: Thank you so much for having me.

Trinko: So right now we’re again seeing massive protests, unrest over the grand jury’s decision not to charge any of the three police officers with Breonna Taylor’s death. Now, for those who haven’t been following the case closely, Breonna Taylor was a 26-year-old black woman and an emergency room technician. She was killed this March after three police officers had a warrant to enter her residence, and in the course of that, she was shot by one of the police officers. So I want to get into the grand jury, its decision on this case, but let’s start with the beginning. Why was there a warrant for Taylor’s residence in the first place?

Swearer: Right. So I think this is the thing that has been confusing to a lot of people. So when we break this down, I think the short version is it was sort of a questionable guilt by association type issue.

So you have Breonna Taylor who, by all accounts, was a completely upstanding citizen. You talked about the incredible medical career that she had as a technician, had been awarded for that and, by all accounts, has done nothing criminal.

Then there is her ex-boyfriend … The details are a little sketchy, but apparently, this ex-boyfriend had been caught up in some sort of either, not drug trafficking, but distribution of drugs, illegal narcotics type of thing.

So they were really focused on this ex-boyfriend and trying to collect evidence to get a warrant for him. In the course of this, Breonna Taylor apparently still had some sort of friendship or relationship with this individual, so they see her dropping this ex-boyfriend off a couple of times.

It turns out that the ex-boyfriend may still have been picking up mail at Breonna Taylor’s apartment, but nothing from what I can tell at least, seemed to indicate that Breonna Taylor in any way, shape, or form was connected to any illegal activity that the ex-boyfriend may have been doing other than again, this sort of guilt by association.

So basically what happens is there are two warrants issued: one for the ex-boyfriend’s place, because again, he is the one suspected of this drug trafficking, this narcotic stealing, and then one issued for Breonna Taylor’s residence.

From what I can tell, the argument seems to be that, “Well, the ex-boyfriend was picking up packages there, and those packages might have been related to his drug business,” and because they still had this sort of friendship, relationship thing happening that maybe she was caught up in this too. So they get a warrant for her apartment as well, trying to, I guess, find evidence against the ex-boyfriend.

Now, those warrants were both served on the same night, so both against the ex-boyfriend and against Breonna Taylor, and that’s how Breonna Taylor got caught up in all of this …

Trinko: So on that point, I think most of us think, “Wow, getting a warrant and having the police come when you haven’t done anything is such a terrifying thought.” Is it common for judges to allow warrants in situations where it doesn’t appear that the person themselves is involved, but they might know someone, or as you said, she seemed to be getting mail that was going to her ex-boyfriends who might’ve been involved? Is that a stretch for a warrant or is stuff like this pretty common?

Swearer: So again, it’s hard because I don’t have all the information, but from what I can tell, there didn’t seem to have been more, that the premise itself was there’s mail for the ex-boyfriend at the apartment and that they didn’t have any hard proof that anything in this mail had anything to do with illegal activity.

People allow other people, for a variety of reasons, to pick up mail at their place, to essentially use their address as a package pickup if that person doesn’t have package service or something. So that in and of itself, I think is questionable, unless there’s something that either I have not seen or something that is sort of hidden in these warrants somewhere that no one else has really picked on to really draw that connection. …

If this had been a situation where the police had evidence, not just that the ex-boyfriend was picking up packages or had been to her place, but that out of that, these packages contain something to further his illegal drug activity, then maybe I think a warrant is reasonable, but it is a bit of a stretch absent that hard connection to say, “Oh, well, he’s picking up packages there, so it might be drugs.” Normally, you need a little bit more than that.

Trinko: This was a no-knock warrant. Now, there is dispute about whether the police ultimately did this as a no-knock warrant or not. The Kentucky attorney general, Daniel Cameron, said they did announce themselves as police before they came into the apartment. I believe one neighbor heard that. The other neighbors, my understanding is, say they didn’t hear that, but putting aside that dispute, let’s get into what is a no-knock warrant and when is it appropriate?

Swearer: Right. So a no-knock warrant, in some respects, is self-explanatory. It is a warrant that is served without the police having to knock on the door, announce themselves. If you’ve ever seen any sort of CSI or crime show on TV, you’ll see them knocking at the door, going, “Police, open up. We have a warrant.” Normally, that is something police have to do … knock and announce themselves.

Now, with a no-knock warrant, generally, those are reserved for situations where it would either put the police in danger to have to announce themselves … that if they know the police are coming, they’ll either be prepared to harm the police or in instances where it would be very easy for them to get rid of evidence, that if the police knock and say, “Hey, it’s the police,” that they’ll flush drugs or somehow or another get rid of that evidence.

But generally speaking … it’s not normally how warrants are served. So the argument for a long time has been that that those types of warrants … should need to meet a considerably higher bar of showing that the officers are going to be in danger.

Because again, as we see from what happened with this incident with Breonna Taylor, it can go very, very poorly, very, very quickly because there are a lot of risks to civilians, to the officers themselves with these no-knock warrants. So they have been quite controversial.

I think part of the reason they’ve been so controversial is because they have been used quite often in these sorts of scenarios where it’s very questionable whether they were needed in the first place.

Trinko: So Taylor’s then-boyfriend, who, to be clear, is not the same as the ex-boyfriend who is potentially involved with this drug situation, so her current boyfriend allegedly fired the first shot at the police officers. So how does it work in situations with a warrant? What if someone is genuinely confused, thinks they’re being attacked? You’ve got three officers with guns. I’m not sure what they were wearing or what they were saying. How does the law deal with situations like that?

Swearer: I think for this case, it’s actually important to back up first and talk about sort of the discrepancies between what the boyfriend is saying happened and what the police are saying happened.

So the police version of this, and again, it’s hard because there are no body cameras. We don’t have video of this. We just are piecing together what various witnesses are saying. So the police version was that, even though they had a no-knock warrant, they knocked and announced themselves for a minute or so at around midnight, knocked and said, “Police, open up,” and that Breonna Taylor’s boyfriend at that point opened fire on them.

They clearly thought that a criminal was firing at them. And at that point, they had a right to defend themselves as any officer would when someone has opened fire on them.

But then you flip that around and you have the boyfriend saying, Look, we don’t think that they ever announced themselves. We never heard this. Or if they did, we were half asleep and we had no idea that these were officers at our door. We thought someone was trying to break in. And in fact, we shouted,’Who’s there? and no one answered.

There are a number of neighbors who now have said that, We never heard police anywhere. So there’s this discrepancy about whether or not they really knew it was police.

So Breonna Taylor’s boyfriend thinks someone’s breaking in, fires what he says is a warning shot, and then at that point, the officers opened fire on him, ended up killing Breonna in her bed.

The boyfriend then, and this is on record, so this is verifiable, then calls 911 and says, There’s someone trying to break in. Someone just shot my girlfriend. I don’t know what’s happening. That would seem to indicate that he very truly did not know that these were police at the door.

So in that scenario, it’s this weird legal place where both parties thought they were acting in self-defense. Now, you had the boyfriend who quite reasonably, if he didn’t understand that these were police and frankly, even if he did hear them say, “police,” I can think of off the top of my head, several instances from just the last year or two in our defensive gun use database where you had criminals committing armed robbery by pounding on the door shouting in the middle of the night, “Police, open up,” and it turns out they were just criminals trying to break in.

Trinko: That’s terrifying.

Swearer: Yeah, absolutely. And again, you want to talk about some of the dangers of these middle of the night no-knock raids, that’s one of the dangers inherent to them.

But then on the other side, you have law enforcement officers who are serving a warrant that has been granted to them. They went through the correct legal process. We can debate whether or not that warrant should have been granted, but they had a warrant, they were serving a warrant, they were doing their job and they got fired at. In that scenario, most cops are going to fire back.

So it’s really this sort of gray area where both parties can theoretically legitimately say, “We were acting in self defense.” So I think that complicates this in a way that you don’t see in a lot of other scenarios of police shooting.

Trinko: So let’s talk about the grand jury process. What is it and how does it work and why was it used in this case?

Swearer: Sure. So a grand jury is a process that a lot of states use as a way of weeding out and seeing whether there is probable cause before someone is charged with a crime. So it’s sort of protection against flagrant abuses of charging somebody with a crime.

Most times, they’re not open to the public. They’re closed testimony. This is not something where the defendant, the person who is accused of the crime, gets to defend himself or herself. Basically, a type of jury, a group of citizens called the grand jury, is presented with all of the evidence that the prosecutor has and their job is to make sure that based on all of this evidence, there is at least probable cause of a crime. So that’s a very low bar.

This is not like an actual jury trial where both sides get to present evidence and there’s a very high bar for proving guilt. This is just a bare minimum [answering] is there enough evidence here to go forward?

Generally speaking, if a prosecutor is bringing something to a grand jury, they’re pretty confident that there’s enough evidence there. There’s this old saying of you could indict a bologna sandwich or a ham sandwich in front of a grand jury because only one side is presenting evidence.

So it is a bit rare to see some of these situations like you see here where some of the individuals are not indicted. I think that speaks to … the fact that from a legal standpoint, there wasn’t a whole lot to charge these other two officers with.

Trinko: On that, so obviously, the final decision by the grand jury was not to indict any of the three officers in Taylor’s death. Although, one of the officers was indicted for, I don’t remember the formal version of the charge, but for essentially, not being careful enough and shooting and shots, I believe, went into a neighbor’s apartment. So what did you think about the grand jury’s decision? Did it strike you as appropriate, problematic or what?

Swearer: So in many respects, I think this was… This type of outcome wasn’t unexpected because again, you have a scenario where these were not cops who were doing something that was per se illegal. They had a warrant. They went through the proper judicial system.

You can question the administrative aspect of it. Should they have been granted a warrant? Should this have been something they were pursuing in the first place? But that’s not necessarily illegal, to seek and be granted a warrant that maybe shouldn’t have been granted, that’s not necessarily a crime.

So in many respects, they went through the legal correct processes to do their job. At the end of the day, they didn’t do anything criminal with respect to that. I don’t think that was very unexpected. I think it was disappointing for a lot of people.

Then on top of that, you talk about the use of force, shooting at and killing someone who is lying in their bed. The argument there is, again, they’re serving a warrant and someone shoots at them. They don’t necessarily have a concept of, “He’s shooting at us because he doesn’t know that we’re cops.” They’re cops going, “Someone’s shooting at us because we’re cops.” And in that case, they have the right to use deadly force against the person who is shooting at them.

The complicating factor here and where you’re seeing the one indictment come from is how they fired back. This was something that even from the very beginning just didn’t make a whole lot of sense to a lot of people reading through the facts of what happened … one of the officers apparently fires blindly through the wall of the apartment, so not firing through an open door into the dark, but just starts firing through walls at things he can’t see.

So that’s where he picked up the charge for essentially, reckless endangerment, but it wasn’t for recklessly endangering Breonna Taylor or the boyfriend, but because by blind firing through walls of an apartment, you’re recklessly endangering the other people in the apartment. So that is something that again, from the very beginning, …. didn’t feel right.

That was always one part of this story that, even if you’re on the side of the cop saying, “They were serving a warrant,” why do you start firing blindly through walls? That is not generally something officers are trained to do or authorized to do. So that’s where you get that reckless endangerment charge, but not any criminal charges as they relate to Breonna Taylor or the boyfriend.

Trinko: Obviously, police departments have different standards depending on which department. I’m sure there’s … variations, but what you were just mentioning, that’s interesting. Obviously, officers are trained that there are times where they feel like they have to act in self-defense, but at the same time, the goal is not to kill anyone else, including the people shooting at them if possible. Do you have any thoughts on how do most police officers, how are they recommended to navigate that? Does it seem that it was out of the ordinary what happened here?

Swearer: Again, to me, what it comes down to in terms of what’s out of the ordinary is that question of, was it out of the ordinary to seek a no-knock midnight warrant? Was this type of serving up the warrant necessary? And I think the answer is no, probably not.

I think the outcome of that is it was the seeking of that warrant, this idea of we’re going to use a process that is generally reserved for people who we know are dangerous, who we really have this extraordinary need to break into their home at midnight, using that type of mechanism in this scenario where again, Breonna Taylor is at no point accused of actually being involved in anything violent, anything criminal, much less violent. It was maybe the ex-boyfriend had some packages here.

To look at that and say, “Yeah, we need to bust into this home at midnight, either knocking or not knocking,” that puts officers in danger. That creates a scenario that is dangerous for everyone involved. So to me, that’s the thing that is a bit unusual and sort of… I wish I could say out of character, but unfortunately, this is all too common, in the sense that, that these are overly used in scenarios where they’re not supposed to be used or not needed to be used. So that to me, is the thing that sticks out.

Then on top of that, yes, generally speaking, officers should not be hired blindly through walls, even if someone shoots at you. You are trained to shoot at targets that you can identify, and if you’re shooting for walls, you don’t know what you’re shooting at. You don’t know what’s on the other side. Even if someone is shooting at you, in that scenario, you don’t know, “OK. Do they have hostages? Do you have innocent children on the other side of that wall?” So that, again as you suggested, it’s something that is out of the ordinary as well.

But again, the biggest thing that sticks out is the misuse of this type of warrant in a situation that didn’t call for it. That ultimately creates the scenario where everyone thinks that they are defending themselves.

Trinko: This case has gotten massive media attention, a lot of interest from the American public. We’re seeing celebrities speak out. We’re seeing a lot of social media posts. And of course, we’re seeing protests across the country. The overwhelming narrative here is—Amy, you’ve broken down some of this— … a woman was peacefully asleep, minding her own business. The police came in and they shot her while she was asleep. What would you say to a Facebook friend of yours, or a protester who is saying that this case shows that we have a problem with justice in America?

Swearer: On the one hand, I think that it is a valid concern for people to have that we have a system for obtaining warrants and carrying out those warrants where a woman who is an upstanding citizen, who really isn’t accused of having done anything wrong, still gets caught up in a midnight no-knock raid like this. That’s a valid criticism. That is something that a lot of people in criminal justice reform have pointed out for years, that this is something to really look at …

But unfortunately, I think that has not taken the spotlight that it should be taking, that this is more of an administrative error and not necessarily an error in terms of how the police executed this raid. Again, they were doing something they were authorized to do. The error came before that with authorizing it in the first place.

Then on the other side, it’s difficult because out of all of the recent events involving—whether it’s police shootings or George Floyd—deaths in police custody. I think there are plenty of other examples of very acute, very serious police misuses of force, like with George Floyd, where the officers did things that just simply can’t be justified. Those actions can’t be justified, but I don’t think people … are picking the right things to criticize for the right reasons. I think it’s leading to a lot of anger on both sides. You have people who are angry at the death of an innocent woman, but they’re angry sort of for the wrong reasons at the wrong parts of what went wrong.Amy

Then you have people who, on the other side, look at this and say, “Oh, well, the problem wasn’t with what the officers did during the raid. It was with what happened beforehand and that’s not their fault, so we shouldn’t care about it essentially.” So it’s sort of this mismatched anger, if you will, that I think sort of spirals out of control on both sides.

It’s disappointing because I think, specifically with this case, there are legitimate grievances, but we need to be specific about what those grievances are and how they should be fixed. And again, that grievances, this type of warrant should not have been served in this instance, and that would have prevented this scenario where you have people legitimately claiming self-defense and appropriate action on both sides.

Trinko: So Kentucky Gov. Andy Beshear told CNN, “Throughout the last six months, there hasn’t been really any explanation of the process; the evidence you’d have to secure, what it even takes to make certain charges. And then the evidence itself to date has not been shared. Certainly, I think that now is the time.” Should the Kentucky attorney general, Daniel Cameron, release the evidence that the grand jury had?

Swearer: So generally speaking, you talk about the grand jury process. That is not a public process, that is not open to the public in the same way that a jury trial would be.

Some of that has to do with the specifics and the differences between what gets admitted into a trial and what gets admitted into a grand jury process. So that is not usually how things are done. Some of that is to protect witnesses, to protect people who testify at a grand jury, who testify openly. You don’t want the mob, if you will, coming down on that because of something they said during the grand jury process, but the whole purpose of the grand jury process is for it to be open, that evidence to be out before the grand jury so that they have everything in front of them.

It wouldn’t be unprecedented for that information to be released. That is something that does occasionally happen, especially in very controversial cases like this.

Trinko: OK. Well, Amy, really appreciate you joining us and providing this analysis. Is there anything else you’d like to add?

Swearer: Yeah. I think that the final thing that I would say is … the main takeaway from this is one, this was a tragedy. Breonna Taylor should be alive. There is no indication at all that she has done anything criminal in her life, much less in these circumstances.

And two, that we need to be intentional when tragedies like this happen with pinpointing what the real problem was because I think when you get down to it, the problem here was administrative. It was a deeper question of when and how we should use warrants.

Should we be treating every single instance of serving a warrant as though it is this life or death situation where cops have to bust down doors in the middle of the night? And I think the answer is no, especially not in situations like the one we see with Breonna Taylor.

When you start fixing those problems, you avoid the, at least to a larger extent, you’ll avoid some of these more violent confrontations where you have people on both sides who are just mistaken about what’s happening. You have the boyfriend who is thinking, “I’m in fear for my life because someone’s breaking into my house.” You have the cops who are thinking, “Oh, he’s a criminal shooting at us,” and it’s very unfortunate and it’s heartbreaking because all of that could have been avoided at the very beginning by just using better judgment about how we’re going to serve those warrants.

Trinko: Amy, thank you so much for joining us.

Swearer: Thank you for having me.

 

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