The only plausible path to conviction in Breonna Taylor case is in Ky state court

A March 14 editorial in the Herald-Leader explained qualified immunity, a strong defense police officers can assert in the federal investigation of Breonna Taylor’s homicide. Qualified immunity requires prosecutors to prove the police officers acted willfully with specific intent to deprive Taylor of a civil right. However, qualified immunity won’t be a defense if officers are charged under Kentucky state law. The only issue in Breonna’s killing under state law is whether the police acted wantonly or recklessly. If they did, neither self-defense nor qualified immunity will be a defense.

Attorney General Daniel Cameron said the shooting of Breonna was “justified.” True, deadly force is justified (can be used against an attacker) “when the defendant [police] believes that such force is necessary to protect himself against death, serious physical injury [and other specified crimes].” KRS 503.050. But the self-defense justification does not apply if police wantonly or recklessly shoot an innocent bystander.

KRS 503.120(2) states “when the defendant [police officer] is justified under [justification statutes] in using force upon or toward the person of another [Walker], but he wantonly or recklessly injures or creates a risk of injury to innocent persons [Breonna], the justification [of self-defense] afforded by those sections is unavailable in a prosecution [of the police officer] for an offense involving wantonness or recklessness toward innocent persons [Breonna].” In other words, if they’d shot Walker, they could claim self-defense but can’t claim it for shooting Breonna if they acted wantonly or recklessly.

Killing wantonly means consciously disregarding a substantial risk. The classic example of wantonness is shooting into a crowd – the shooter has no specific intent to kill a particular individual but disregards the risk that a bullet will strike someone. If the wantonness is so bad it shows extreme indifference to human life, it will punished the same as murder. Reckless killing requires failure to perceive a substantial risk.

Was Breonna’s killing wanton or reckless? Kenneth Walker was in the apartment with Breonna and fired at police because he thought they were intruders. But would a jury think it’s wanton or reckless, akin to shooting into a crowd, for police to fire back without first determining who was shooting at them and whether innocent persons like Breonna were in the line of fire? KRS 503.120(1) provides that if a defendant is wanton or reckless in “failing to acquire any knowledge…material to the justifiability of his use of force” then justification can’t be claimed.

We know that thirty-two shots were fired, none of which hit Walker and six of which struck Breonna. Did the police fire at Breonna because they reasonably thought she was the person shooting at them? (Not guilty). Or were they firing blindly in the dark or at anything that moved? (Guilty) That grand jurors filed suit over Daniel Cameron’s portrayal of the grand jury proceedings feeds suspicions that a crime was covered up, that the grand jury might have indicted someone for Breonna’s death had they been given the chance.

Breonna’s mother recently asked Louisville’s Commonwealth Attorney Tom Wine to convene a grand jury to do just that – present a case for indicting the police. If charges are brought in state court, the prosecutor will need only prove that the police acted wantonly or recklessly. Wine declined, deferring to the federal investigation. That’s good for the police officers because under federal law, wanton or reckless behavior won’t be enough to convict. If the police are guilty of anything, it’s based in wanton or reckless behavior, and the only plausible path to conviction is in state court.

Mike Wilson is a lawyer, professor, and author of “Arranging Deck Chairs on the Titanic,” political poetry for a post-truth world.