Ellison Berryhill, an Assistant Public Defender practicing in Tennessee, discusses the pros and cons of modifying the law of self-defense as used by the police against the background of Breonna Taylor's death...
On March 13th, 2020, Louisville police officers used a battering ram to smash down the door to Breonna Taylor’s apartment. Their purpose was to execute a search warrant related to Taylor’s potentially dangerous ex-boyfriend. Taylor was in her apartment with her current boyfriend, Kenneth Walker, when they heard the banging at the door – they feared that the dangerous ex-boyfriend was breaking in. If the officers identified themselves, Walker did not hear them do so. When the police broke down the door, Walker fired one shot at the officers, who responded by firing 32 shots into the apartment, including those that killed Ms. Taylor.
On September 23rd, 2020, a Louisville Grand Jury declined to indict the two officers who shot Ms. Taylor. The officers claimed that they identified themselves as police officers and only fired at Ms. Taylor after Walker fired upon them. Protests exploded across the country following this announcement, largely due to the feeling of fundamental unfairness that surrounds this situation.
From the protesters’ point of view, it cannot be fair that a woman can be asleep in her apartment, wake up to banging on her door in the middle of the night, and have the officers kill her when her boyfriend tries to protect them. There is a feeling that there should be some consequences for killing her, and her life cannot be discarded so casually.
However, according to the self-defense laws, the failure to indict may have been the correct legal decision. The Kentucky self-defense statute says that the use of deadly force is justifiable “only when the defendant believes that such force is necessary to protect himself against death, serious physical injury” or other serious harms. Thus, it makes sense how a grand jury, faithfully applying this statute, could decide that the officers believed that they were at risk of death or serious physical injury. Someone was shooting at them – that is the prototypical situation where self-defense is warranted.
So what can we do in a situation where it feels like Black lives are being mistreated and discarded without consequence due to the functioning of the self-defense law? It feels unfair that police officers can create a dangerous situation, and then use that danger as cover for their violence. One way to prevent this type of violence in the future would be to modify the self-defense law.
The proposed addendum is as follows: “law enforcement officers may not use deadly force in self-defense if their actions created the situation where the need for self-defense became necessary.” Thus, in practice, law enforcement officers would have to use some force less than lethal if they affirmatively created the dangerous situation. This rule would have taken the self-defense argument away from the officers who killed Breonna Taylor, because they smashed through her door and created the dangerous situation in the first place. Officers could use less than lethal force like tasers and beanbags to protect themselves in these situations, but they could not fire lethal bullets into an apartment after they break in.
One benefit of this law would be to essentially end no-knock warrants. If officers cannot use lethal force to protect themselves while executing these warrants, then the warrants are likely too dangerous to continue with. This would be a good thing. No-knock warrants have a long history of danger. Journalist Radley Balko chronicles this history in his book ‘Rise of the Warrior Cop’. He describes how police have mistakenly shot neighbors while executing warrants. He describes one raid where undercover, unidentified police officers swarm a house and then kill their victim as he tries to run away from his unknown assailants. He describes the police breaking into wrong houses and using mafia-like tactics to interrogate people who have no connection to any police investigation. These are only a few examples of the disastrous consequences of no-knock warrants.
While this proposal would put more burden on the police to maintain safety, it also has a number of problems. First, how would a court define whether the law enforcement officers created the dangerous situation? In Breonna Taylor’s context, it seems clear that they created the situation – they voluntarily smashed down the door. But what would we do in a situation where the officers start a peaceful interaction with a person who starts shooting at the officers? Officers should have the ability to protect themselves when they’re doing normal police work and are suddenly under fire. According to the proposed rule, they would not be able to protect themselves in such situations.
A second problem is the political opposition that would come to this proposal from police groups. Being a police officer is a dangerous job – many are reasonably afraid that they could be killed or injured in the line of duty. Police organizations would view this modification as a move to make their jobs more dangerous and to take away the tools that they need to protect themselves.
There is some logic to this argument, but the goal of this modification would not be to make regular police work more dangerous – it would be to dissuade the police from undertaking clearly dangerous activities. A functional rule would need to account for the inherent danger of police work and leave the police with tools to appropriately protect themselves.
The death of Breonna Taylor is a tragedy, and we as a nation are trying to grapple with it. The application of the self-defense law makes it more complicated. If an unknown person were breaking into my house, I would certainly understand my desire to use lethal force to protect my family. However, if I were a law enforcement officer and someone is shooting at me, I would also understand my desire to use lethal force to protect myself.
The negative consequences of this proposed modification to the self-defense law likely outweigh the positives, but the conversation needs to continue. Too many Black lives are ended by law enforcement officials for the current situation to remain the status quo. To respect people like Ms. Taylor, we have to think about why they died and what we can do to prevent similar deaths in the future. Proposals like the one discussed above can help us find answers to these big questions.
Ellison Berryhill is an Assistant Public Defender practicing in Tennessee.
Suggested citation: Ellison Berryhill, Self-Defense in the No-Knock Context, JURIST – Professional Commentary, October 6, 2020, https://www.jurist.org/commentary/2020/10/ellison-berryhill-self-defense-in-no-knock-context/.
This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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