The Daily Signal - Amy Swearer Discusses Breonna Taylor's Tragic Death

Episode Date: September 25, 2020

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 in this bonus episode to break down all this and more. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is a bonus edition of the Daily Signal podcast for Friday, September 25th. I'm Kate Trinco. Today, we're going to talk to Amy Swearer, a legal fellow at the Heritage Foundation, about the death of Brianna Taylor, the role that a no-knock warrant played, and the grand jury's decision. And don't forget, if you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now, on to our interview.

joining me today is amy swearer a legal fellow in the mee center at the heritage foundation amy thanks for joining us thank you so much for having me okay 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 brianna taylor's death now for those who haven't been following the case closely briana taylor was a 26-year-old black woman in an emergency room technician she was killed this mark 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.

It's decision on this case, but let's start with the beginning. Why was there a warrant for Taylor's residence in the first place? 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 know, you talk about an incredible medical career that she had as a technician, had been awarded for that. And by all accounts, it's done nothing criminal. And then there is her

ex-boyfriend, who essentially, you know, it's kind of, the details are a little sketchy, But apparently this ex-boyfriend had been caught up in some sort of either not drug trafficking, but like distribution of drugs, illegal narcotics type of thing. And so they were really focused on this ex-boyfriend and trying to collect evidence to get a warrant for him. And in the course of this, Brianna Taylor apparently still had some sort of like friendship or relationship with this individual. So they see her dropping this ex-boyfriend off a couple times. It turns out that the ex-boyfriend may still have been picking up mail at Brianna Taylor's apartment. But nothing from what I can tell at Lisa would seem to indicate that Brianna Taylor in any way, shape, or form was connected to any legal activity that the ex-boyfriend may have been doing. Other than, again, that's sort of guilt by association.

And 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, this drug trafficking, this narcotic stealing, and then one issued for Brianna Taylor's residence. And from what I can tell, the argument seems to be that while 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 sort of how Breonna Taylor got caught up in all of this, was this sort of, I guess, working out together by the police that, you know, perhaps they might find evidence against the ex-boyfriend just because she was associated with him. So on that point, and I think, you know, most of us think like, wow, getting in a warrant and having the police come, you know, 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 was involved? But, you know, they might know someone or, as you said, she seemed to be getting mail that was going to her ex-boyfriend who might have been involved. I mean, is that a stretch for a warrant or stuff like this pretty common? common. You know, 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, you know, 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. I mean, people allow other people for a variety of reasons to pick up mail at their place, to essentially use their address as a, you know, package pick up if that person doesn't have package service or something. You know, 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, you know, hidden in these warrants somewhere that that no one else has really picked on to really draw that connection. Because again, so if that connection had been there, if this had been a situation where,

you know, the police had evidence, not just that the ex-boyson was picking up packages or had been to her place, but that, you know, out of that, these packages contained something to further his illegal drug activity. You know, then maybe I think a warrant is reasonable, but it is a bit of a stretch absent that, you know, hard connection to say, oh, well, you know, you're picking up packages there, so it might be drugs. Normally, you need a little bit more than that. So 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.

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? Right. So a no-knock warrant, in some respects, is self-explanatory. a warrant that is served without the police having to, you know, knock on the door, announce themselves. Like if you've ever seen any sort of CSI or, you know, crime show on TV, you know, you'll see them knocking at the door, you're going, police open up, we have a warrant. Normally, that is something police have to do is 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 there is some evidence of dangerousness, that if they know the police are coming, they'll either, you know, be prepared to harm the police or in instances where it would be very easy for them to get rid of evidence. You know that if the police knock into, hey, it's the police, that they'll flush drugs or, you know, or somehow or another get rid of that evidence. But generally speaking, you know, that is something that is, it's not normally how warrants are served. And so the argument for a long time has been that those types of warrants should need to show, they 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 in this incident,

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. And so they have been quite controversial. And 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. 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? I mean, what if someone is genuinely confused, thinks they're being attacked? You know, 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? Well, so 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 sort of piecing together of what various witnesses are saying. So the police version was that even though they had a no-knock warrant, they knocked and announced themselves, you know, for a minute or so at around midnight, you know, knocked and said police open up and that the Brianna Taylor's boyfriend at that point opened fire on them. They, you know, 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 is open and 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, you know, 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, you know, who's there and no one answered. And 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 Brianna Taylor's boyfriend thinks someone's breaking in, fires what he says. says is a warning shot. And then at that point, the officers opened fire on him, ended up killing Brianna in her bed. The boyfriend then, and this is on record, so this is verifiable, then calls 911 and says, someone's 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 sort of this weird, legal place where both parties thought they were acting in self-defense. You had the boyfriend who,

you know, quite reasonably, if he didn't understand that these were police, and frankly, even if he did, you know, 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, you know, in the middle of the night, police open up. And it turns out they were just criminals trying to break in. That's terrifying. Yeah, absolutely. And again, you want to talk about some of the dangers of these middle of the night,

no-knock raids, you know, that's one of the dangers inherent to them. But then on the other side, you know, you have law enforcement officers who are serving a warrant that has been granted to them. I mean, 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. And in that scenario, you know, most cops are going to fire back. And so it's really this sort of gray area where both parties can, you know, theoretically, legitimately say we were asking in self-defense. And so I think that complicates this in a way that you don't see in a lot of other scenarios of police shooting. 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? 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 a protection against, you know, flagrant abuses of charging somebody with a crime. Most times they're not open to the public. their closed testimony. And this is not something where the defendant, you know, the person who is accused of the crime gets to defend himself or herself, basically a type of jury, you know, 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 proven guilt. This is just sort of like a bare minimum. Is there enough evidence here to go forward? You know, generally speaking, if a prosecutor is bringing something to a grand jury, they're pretty confident that there's enough evidence there. I'd say, you know, 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 sort of speaks to, at least legally, the fact that from a legal standpoint, there wasn't a whole lot to charge these other two officers with. And we can sort of get into, again, the legal aspects of that. Yeah, 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 when 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? So, you know, 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 know, you can question sort of the administrative aspect of it.

You know, 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, you know, 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. And at the end of the day, they didn't do anything criminal with respect to that. So that's not, I don't think that was very unexpected. I think it was disappointing for a lot of people. And then on top of that, you talk about like the use of force, you know, shooting at,

and killing someone who is lying in their bed. You know, the argument there is, again, they're serving a warrant and someone shoots at them. They don't necessarily have a concept of, you know, he's shooting at us because he doesn't know that we're cops. They're cops going, someone shooting at us because we're cops. And in that case, you know, they have the right to use deadly force. against the person who was shooting at them. The complicating factor here and where you're seeing

the one indictment come from is how they fired back. So, and this was something, 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 is 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

that things he can't see. And 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, you know, by blind firing through walls in an apartment, you're recklessly endangering the other people in the apartment. And so that is something that, you know, again, from the very beginning was, it just sort of didn't feel right. that was always one part of this story that even if you're on the side of the cops 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. So obviously, police departments have different standards depending on which department. and I'm sure there's, you know, intense variations. But, you know, what you were just mentioning, like, that's interesting. Like, obviously officers are trained that there are times where they feel like they have to act in self-defense. But at the same time, you know, they are, 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?

and does it seem that it was out of the ordinary what happened here? You know, 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? You know, was this type of serving of the warrant necessary? You know, and I think the answer is no, probably not. And I think the outcome of that is it was the seeking of that warrant, this idea of we're going to 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 was at no point accused of actually being involved in anything violent, anything criminal, much. less violence. You know, it was maybe the ex-boyfriend had some packages here. And 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. And so to me, that's the thing that is a bit unusual and sort of, you know, I wish I could say out of character, but unfortunately, this is all too common in the sense 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. And then on top of that, yes, I mean, generally speaking, officers should not be fired blindly through walls, even if someone shoots at you. You know, you are trained to shoot at targets that you can identify. And if you're shooting through 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, you know, in that scenario, you don't know, okay, do they have hostages? Do you have innocent children on the other side of that wall? So that, again, you know, as you suggested, is 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. So this case has got a massive media attention, a lot of interest from the American public. You know, 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, and you know, you've broken down some of this, but 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 say a Facebook friend of yours or, you know, protester who is saying that this case shows that we have a problem with justice in America? You know, 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, you know, a woman who is an upstanding citizen who really isn't accused of having done anything wrong still gets caught up in a in night, no knock raid like this. I said that that's a valid criticism. That is something that a lot of people in favor of criminal justice reform have pointed out for years, that this is something to really look at. And it is something that I think is a valid complaint. 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. you know, again, they were doing something they were authorized to do.

The error came before that with authorizing it in the first place. You know, and then on the other side, you know, it's difficult because out of all of the recent events involving, you know, whether it's police shootings or George Floyd, death in police custody, I think there are plenty of other examples of, you know, very acute, very serious police mischiefs. use as a force, like with George Floyd, where the officers did things that just simply can't be justified. You know, those actions can't be justified. That I don't think people in their criticisms are picking the right things to criticize for the right reasons. And I think it's leading to a lot of anger on both sides. You know, 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. And then you of people who, you know, on the other side, look at this and say, oh, well, the problem wasn't

what the officers did during the raid. It was, you know, with what happened beforehand, and that's not their fault. So we shouldn't care about it, essentially. And so it's sort of this mismatched anger, if you will, that I think sort of spirals out of control on both sides. And 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. So Kentucky Governor 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? So generally speaking, you know, again, 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, you know, some of that has to do with, again, the specifics and the differences between what gets admitted into a trial and what gets admitted into a grand jury process.

So it's, that is not usually how things are done. And some of that is, again, to protect witnesses, to protect people who testify at a grand jury, who testify openly, you know, you don't want the mob, if you will, coming down on them because of something they said during the grand jury process, the whole purpose of the grand jury process is for it to be open, you know, 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. Okay, well, Amy, really appreciate you joining us and providing this analysis. Is there anything else

you'd like to add? Yeah, I think the final thing that I would say is, you know, again, the main takeaway from this is, one, this was a tragedy. Brianna Taylor should be alive. You know, there's no indication at all that she has done anything criminal in her life, much less in these circumstances. And two, that, you know, this is, we need to be intentional with when tragedies like this happen, with pinpointing what the real problem was. Because I think, you know, again, when you get down to it, the problem here was administrative. It was a deeper question of when and how we should use warrants. You know, should we be treating every single instance of serving a warrant as though it is this life or death situation where cops have to, you know, 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.

You know, and when you start fixing those problems, you avoid the, at least to a larger extent, you avoid some of these more violent confrontations where you have people on both sides who are just mistaken about what's happening. You know, 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 on us. And it's very unfortunate and it's heartbreaking because all of that could have and should have been avoided at the very beginning by just using better judgment about how we're going to serve those

warrants. Amy, thank you so much for joining us. Thank you for having me. And that's it for today's bonus episode. Thanks for listening to The Daily Signal podcast, which you can find on Google Play, Apple Podcasts, Spotify, and IHeartRadio. Please be sure to leave us a review to give us your feedback. We'll be back with you on Monday. Podcast is brought to you by more than half a million members of the Heritage Foundation. It is executive produced by Kate Trinko and Rachel Del Judas, sound design by Lauren Evans, Mark Geinie, and John Pop. For more information, visit DailySignal.com.