Not “Just a Few Bad Apples”: LMPD Violated Breonna Taylor’s Human Right to Life

“[Police] are citizens in uniform, performing a function on behalf of other citizens and their powers thus need to be constrained.”^[1]

INTRODUCTION

Across the globe, law enforcement officials (“police”) play a role in “protecting society from violence, enforcing justice, and securing the rights of people.”^[2] Police are given a significant amount of power which has the potential to be easily abused, made evident by the substantial number of unlawful killings by law enforcement officials.^[3] The United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions submitted a report (“Report”) to the Human Rights Council (“UNHRC”) on protecting the right to life during law enforcement and the need for domestic law reform.^[4] This report focused on situations where it is “widely accepted that the police may use some force but where domestic law poses lower standards for the use of force than those set by international law and/or where domestic law does not make a provision for proper accountability mechanisms.”^[5] The use of force must only be resorted to with the utmost respect for the law and with due consideration for the serious impact it can have on a range of human rights.^[6]

The largest duty of a UN member country (“Member State”) is to protect the human right to life.^[7] It is a serious breach of this duty when Member State police murder citizens, which leaves citizens with little hope that police will be effective in “preventing violations by other [citizens].”^[8] Therefore, the UN calls for an establishment of an appropriate legal framework for the use of force by the police that sets forth conditions in which force may be used against civilians and provides a framework for a system of responsibility when these limits are transgressed.^[9] Under this framework, domestic law must provide the protection of the right to life and ensure accountability mechanisms considering the irreversibility of a violation to the right.^[10] Domestic laws define police and civilian understanding of the extent of police powers and the conditions for accountability, which is why international organizations, such as the UN, seek to ensure that domestic laws comply with international standards.^[11]

From 1980 to 2018, police violence caused an estimated 30,800 civilian deaths in the United States.^[12] After a string of civilian deaths at the hands of law enforcement in 2020, nationwide protests and conversations were sparked centering around systemic racism and extrajudicial police violence against people of color in the United States.^[13] Louisville, Kentucky became one of the leading cities in protest as a consequence of the March 2020 murder of Breonna Taylor by the Louisville Metro Police Department (“LMPD”).^[14] The officers shot and killed Breonna in her home while executing a search warrant.^[15] This blog analyzes LMPD’s violations of Breonna Taylor’s right to life and the lack of law enforcement accountability within the framework of the UN’s Basic Principles governing Law Enforcement’s Use of Force and Firearms.

LOUISVILLE METRO POLICE DEPARTMENT’S MURDER OF BREONNA TAYLOR

Breonna Taylor was a 26-year-old Emergency Medical Technician for two hospitals in Louisville, Kentucky.^[16] She was a dedicated daughter, sister, friend, and girlfriend to Kenneth Walker.^[17] On March 13, 2020, Breonna and Kenneth were asleep in their bedroom.^[18] At 12:30 am, LMPD officers arrived in their neighborhood in plain clothes and unmarked vehicles to execute a knock-and-announce search warrant (requires police to knock on door and announce their identity and purpose before attempting forcible entry) for Breonna’s apartment.^[19] The officers approached her apartment in a manner which prevented detection from Breonna and her neighbors.^[20] The officers entered Breonna’s home without knocking or announcing themselves, causing Breonna and Kenneth to awaken, believing that criminals were entering their home and fearing imminent danger.^[21] To protect himself and Breonna, Mr. Walker fired a single shot and called 911.^[22] Before help could arrive, the officers shot blindly and excessively into Breonna’s home with a “total disregard for the value of human life.”^[23] Breonna was hit at least eight times by the officers’ gunfire and died as a result.^[24] Kenneth was uninjured, but arrested and charged with assault and attempted murder of a police officer.^[25]

An investigation into Breonna’s murder revealed that two LMPD officers present had a history of unnecessary force and violence towards civilians during their careers –- a pattern that is detailed in LMPD reports.^[26] This pattern of abuse proved fatal when the officers failed to knock and announce themselves prior to entering her residence and when they failed to call off the warrant’s execution when probable cause no longer existed because the intended suspect was already in custody.^[27] Unlike the officers, neither Breonna nor Kenneth had prior criminal history.^[28] Further, neither were the intended target of the search warrant.^[29] Since Kenneth was not aware that he fired at police officers, the charges against him were dropped.^[30] Kentucky Attorney General Daniel Cameron never indicted any police officers in conjunction with Breonna Taylor’s death, but the Department of Justice indicted the murderers – the LMPD officers – for civil rights violations in August 2022.^[31] The lack of urgency to hold anyone accountable for Breonna Taylor’s death displays the pure disregard of her dignity and right to life.

HUMAN RIGHTS PRINCIPLES GOVERNING THE USE OF FORCE AND FIREARMS IN LAW ENFORCEMENT

The right to life is a fundamental human right that without it “all other rights would be devoid of meaning.”^[32] This right is widely recognized and ratified in global and regional treaties and other instruments.^[33] The International Covenant on Civil and Political Rights (“ICCPR”) provides that “every human being has the inherent right to life [which] shall be protected by law. No one shall be arbitrarily deprived of [their] life.”^[34] According to Article 6(1) of the ICCPR, States are required to respect and protect the right to life by international law.^[35] The right to life has two components.^[36] First, every person has a right to be free from the arbitrary deprivation of life , which places limitations on the use of force .^[37] Second, there must a proper investigation and accountability where there is reason to believe that an arbitrary deprivation of life might have taken place.^[38] As a signatory to the ICCPR, the United States has a responsibility to prevent arbitrary killing by its own security forces.^[39]

In law enforcement, there is an inherent necessity for personal discretion in deciding the appropriate amount of force in a given situation.^[40] Member States must have strict control and limit circumstances in which a person may be deprived of their life by such authorities.^[41] Globally, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990 (“Basic Principles”) is a binding legal instrument that details the conditions under which force may be used by police and the requirements for police accountability within UN member States.^[42] This instrument is widely accepted as an authoritative statement of the law and serves as a basis for a Member State to ensure that its domestic law align with international standards.^[43] The UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions (“UN Special Rapporteur”) has issued guidelines for implementation of the Basic Principles determine if there has been an arbitrary deprivation of life.^[44] These guidelines are (1) legality, (2) necessity, (3) proportionality and (4) accountability.^[45]

1. Legality

Basic Principle 1 provides that “[g]overnments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials.”^[46] Further, it requires that governments and law enforcement agencies ensure that “arbitrary or abusive use of force or firearms by law enforcement officials is punished as a criminal offense under the law.”^[47] The UN Special Rapporteur’s guidelines describe this Principle as the “legality” requirement, stating that lethal force is arbitrary unless there is a sufficient legal basis.^[48] Therefore, lethal force is arbitrary if used without the authority of domestic law, or if it is based on a law that is not in compliance with international standard.^[49] Further, the use of force must serve a legitimate objective as established by law.^[50] To be evaluated through the Basic Principles, the act of force must be used for a lawful police purpose.^[51] The UN Special Rapporteur considers the only legitimate objective to be when lethal force is used to save the life of a person or to protect a person from serious injury.^[52]

2. Necessity

Basic Principle 4 provides that police “must, as far as possible, apply non-violent means before resorting to the use of force and firearms.”^[53] When non-violent means are ineffective, or without any promise of achieving the intended result, the use of force should be gradually escalated.^[54] The UN Special Rapporteur’s guidelines describe this Principle as the “necessity” requirement, which serves to determine whether force should be used at all and, if so, how much force.^[55] In the context of lethal force, there are three components to determine necessity.^[56] First, qualitative necessity means that the use of potentially lethal force is not avoidable to achieve the objective.^[57] Second, quantitative necessity means the amount of force used does not exceed that which is required to achieve the objective. Finally, temporary necessity means the use of force must be used against a person who presents an immediate threat.^[58] For lethal use of force, absolute necessity is required, meaning all three components must be met.^[59]

3. Proportionality

Basic Principle 5 provides that “whenever the lawful use of force and firearms is unavoidable, law enforcement officers shall…exercise restraint and act in proportion to the seriousness of the offense and legitimate objective to be achieved.”^[60] The UN Special Rapporteur’s guidelines describe this Principle as the “proportionality” requirement.^[61] Proportionality requires that the “good,” or interest protected, that is done must be compared with the threat posed, or the interest harmed.^[62] Basic Principle 9 states that “[a]ll uses of firearms against people should be treated as lethal,” strongly supports the proportionality requirement.^[63] Therefore, this requirement can only be met if such force is applied in order to save a “life or limb.”^[64] Overall, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.^[65] While international law is aimed at the preservation of “life and limb,” legal systems, like the United States, prioritize the preservation of law and order.^[66]

4. Accountability

Lastly, the right to life requires that Member States investigate apparently unlawful or arbitrary killings.^[67] States are required under Article 2(3) of the ICCPR to provide an effective remedy to persons who have had their right to life violated.^[68] When the use of force or firearms results in death, the failure to investigate properly and promptly is a violation of the right to life itself.^[69] Any Member State accountability framework must include criminal, administrative, and disciplinary sanctions to hold law enforcement officials accountable.^[70] Effective remedies are dependent on effective, exhaustive, and impartial investigations.^[71] Finally, there must also be a high degree of transparency to ensure long-term success of any law enforcement oversight agency.^[72]

APPLICATION OF GUIDELINES TO THE MURDER OF BREONNA TAYLOR

Since the United States is a signatory to the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990, its laws regarding police should comply with the UN’s requirements for use of lethal force and accountability. In the United States, the powers not delegated to the federal government are reserved to the states or to the people.^[73] One such power is the “police power,” which provides states the power to regulate for the health , safety, welfare, and morals of the people.^[74] Therefore, each state differs in its governance over police. An analysis of the Basic Principles through the UN Special Rapporteur’s guidelines will demonstrate that LMPD’s arbitrary use of lethal force violated Breonna Taylor’s right to life.

1. Legality

Domestic law must give authority for police use of lethal force and firearms and such law(s) must comply with international standards.^[75] In Kentucky, deadly force is only justifiable when three requirements are satisfied.^[76] First, when the law enforcement officer is authorized to act as a peace officer in effecting the arrest.^[77] This prong is satisfied because at the time of the execution of the search warrant, the officers were authorized to effect arrest at Breonna’s home in search of illicit drugs or money from drug trafficking.^[78] Second, the arrest must be for a felony involving the use or threatened use of physical force likely to cause death or serious physical injury.^[79] In Kentucky, possession of controlled substances and drug trafficking are felonies; however, this prong is not satisfied since neither violation involves the use or threatened use of physical force likely to cause death or serious physical injury.^[80] Finally, the officer must believe that the person to be arrested is likely to endanger human life unless apprehended without delay.^[81] This prong could be satisfied if the officers believed that a human life was in danger after Kenneth fired his weapon. However, officers must believe that the person to be arrested is likely to endanger human life, and Kenneth was not on the search warrant. Therefore, the law complies with the “legality” guideline since the third element asserts that the use of lethal force is permitted only if it serves the legitimate police purpose of saving the life of a person.^[82] However, in effect, the lethal force used against Breonna Taylor cannot be justified since all prongs are not met and the use of lethal force was arbitrary.^[83]

2. Necessity

Under the principle of necessity, LMPD officers should have exercised all non-violent means before resorting to the use of lethal force and firearms.^[84] Further, LMPD officers should have gradually escalated their use of force when they believed that their means were ineffective.^[85] Officers claim that they announced themselves repeatedly, waited some time, battered the door open, and then were met with gunfire from inside the apartment.^[86] However, Kenneth and the adjacent neighbor state that police did not announce their presence and believed someone was breaking in since they asked them to announce themselves.^[87] There is a lot of skepticism surrounding the truth of the incident, as body cameras were not activated and public officials have continued to be exposed for deceiving the public in response to her murder.^[88] Therefore, it is reasonable for the public to believe Kenneth’s perception of the incident and conclude that the officers did not adequately announce themselves or gradually escalate their use of force.

The UN Special Rapporteur’s guidelines require absolute necessity, so each of the three components must be analyzed. For qualitative necessity, LMPD’s use of force must not have been avoidable to achieve the objective of executing the search warrant.^[89] This is not met because had they actually knocked and announced themselves, lethal force would not have been required. For quantitative necessity, LMPD’s use of force should not have exceeded that which was required to achieve the objective.^[90] This is also not met because a singular shot from Kenneth should not have prompted endless rounds into the apartment from all angles. This was a clear excessive use of gunfire and force against Kenneth and ultimately, Breonna. Finally, temporary necessity requires Kenneth to have posed an immediate threat to officers.^[91] This element could be met because officers had a right to subdue Kenneth after he shot towards the door. However, absolute necessity is required for lethal use of force, and since all three components are not met, the necessity principle is not met and the use of lethal force was arbitrary.^[92]

3. Proportionality

Law enforcement officers speculate that Mr. Walker’s initial shot posed a considerable threat to officers.^[93] Although Mr. Walker shot his gun once when the door was forced open, there is no indication that the officers were in such fear that they believed the appropriate response was to shoot into Breonna’s home, through her windows, patio door, and front door.^[94] When there is a threat posed, the force used must be proportional in comparison.^[95] Firing rounds from multiple different angles of the house after a single shot towards the door is not a proportional use force. The force used against Breonna and Kenneth was not such that was in efforts to “save a life or limb,” so the proportionality requirement is not met.^[96] This intentional lethal force should have only been used if it was strictly unavoidable to protect life. The force used against Breonna and Kenneth was not proportional to achieve any legitimate objective and thus, is another indication of her right to life being violated. This murder evidences the fact that the U.S. domestic legal system prioritizes the preservation of law and order instead of human dignity and life and is yet another indication that the use of lethal force was arbitrary.

4. Accountability

Per the Basic Principles and UN Special Rapporteur guidelines, the United States is required to investigate apparently unlawful or arbitrary killings and must provide a remedy for persons who have had their rights violated.^[97] A local and state investigation began soon after Breonna’s murder because police initially filed an incident report that claimed Breonna had no injuries and no forced entry occurred.^[98] The findings from LMPD’s Public Integrity Unit were given to Daniel Cameron, Attorney General of Kentucky, to determine if the officers should be charged.^[99] Further, Greg Fischer, Louisville mayor, requested FBI and U.S. Attorney General involvement in reviewing the findings.^[100] In September 2020, a grand jury indicted one of the officers for endangering the adjacent neighbor, but the officer was found not guilty in March of 2022 .^[101] However, no officer or party was charged for the murder of Breonna Taylor.^[102] Therefore, the Federal Bureau of Investigation (“FBI”) began an independent investigation which has resulted in the involved officers being federally charged with civil rights and obstruction offenses.^[103] The Department of Justice made it clear that Kentucky’s investigation did not include violations of excessive use of force with respect to Taylor and Walker, so violations of excessive use of force are also included in the federally charged offenses.^[104] Aside from the FBI, the Commonwealth of Kentucky did not adequately provide a remedy to Breonna Taylor nor did the state hold any of its officers accountable for murdering Breonna.^[105] Since the federal government stepped in to attempt to provide remedy for the arbitrary murder of Breonna, the United States is attempting to remain in compliance with the Basic Principles. The United States has the potential to effectively change LMPD by pursuing criminal charges, administrative change, and officer accountability.^[106] However, it is important to note that there is no remedy that could bring Breonna Taylor back to life.

CONCLUSION

Through the lens of the UN Basic Principles and guidelines, Breonna Taylor was arbitrarily deprived of her life. While there are legal frameworks in place to investigate incidents of police misconduct, there lacks implementation and accountability in the United States. In August 2022, the Department of Justice indicted the LMPD officers for civil rights violations in conjunction with Breonna Taylor’s death.^[107] The FBI is still investigating whether the police officers violated Breonna’s constitutional rights.^[108] The Department of Justice is doing a comprehensive investigation into Louisville-Jefferson County Metro Government and LMPD to assess the types of force used by LMPD officers and if LMPD engages in discriminatory policing.^[109] Democrats in the United States Congress have tried to advance domestic law reform on the use of force and firearms, including a prohibition of “no knock” warrants , but each bill has died in the Senate due to a lack of bipartisan effort.^[110] To avoid further senseless murders such as that of Breonna Taylor, the United States government must acknowledge the need for ongoing legal reform to bring its laws into conformity with international law.^[111] Further, the United States must acknowledge that LMPD’s arbitrary use of lethal force violated Breonna Taylor’s fundamental right to life. Until there is accountability and reform, we must forever “Say Her Name.”

1. Christof Heyns (Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions), Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary executions, ¶ 27, A/HRC/26/36 (Apr. 2014). ↑
2. Id. at ¶ 22. ↑
3. Id. at ¶ 23. ↑
4. Id. at 1 ↑
5. Id. at ¶ 25. ↑
6. Amnesty International, Use of Force: Guidelines for Implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, at 17. ↑
7. UNHCR, supra note 1 at ¶ 26. ↑
8. Id. ↑
9. Id. ↑
10. Id. at 29. ↑
11. Id. ↑
12. GBD 2019 Police Violence US Subnational Collaborators, Fatal Police Violence by Race and State in the USA, 1980-2019: A Network M eta-regression. Lancet (Oct. 2, 2021). ↑
13. Legal Defense Fund, An Overview of the Grand Jury Proceedings in the Breonna Taylor Case (2020), https://www.naacpldf.org/justice-denied-a-call-for-a-new-grand-jury-investigation-into-the-police-shooting-of-breonna-taylor/. ↑
14. Id. ↑
15. Id. ↑
16. Grassroots Law Project, About Breonna (2022), https://www.standwithbre.com. ↑
17. Id. ↑
18. https://louisville-police.org/DocumentCenter/View/1802/PIU-20-019-Court-Search-Warrant-Subpoena-Consent ↑
19. Id. (explaining that the individual who the officers were seeking had already been apprehended by LMPD earlier that morning at his own home); Former Louisville, Kentucky, Police Detective Pleads Guilty to a Federal Crime Related to the Death of Breonna Taylor, The United States Department of Justice (Aug. 23, 2022), https://www.justice.gov/opa/pr/former-louisville-kentucky-police-detective-pleads-guilty-federal-crime-related-death-breonna (Louisville Police Detective Kelly Goodlett pled guilty in federal court to conspiring to falsify an affidavit to obtain a warrant to search Breonna Taylor’s home without probable cause and to cover up the false warrant by lying to criminal investigators after Taylor was murdered ). ↑
20. Id. ↑
21. Id. ↑
22. Id. ↑
23. Id. ↑
24. Id. ↑
25. Id. ↑
26. Id. at 4. ↑
27. Id. at 6.; 20-CR-00767 Notice-Motion-Order (explaining that officers claim they announced themselves repeatedly, waited for a period of time, battered the door open, and were met with gunfire from inside the apartment), but see Eggert Affidavit (explaining that the adjacent neighbor never heard police announce their presence and multiple neighbors heard Mr. Walker shouting for help). ↑
28. Id. ↑
29. Id. ↑
30. Id.; 20-CR-00767 (explaining that charges were dropped). ↑
31. UN A/HRC/51/53. ↑
32. UNHCR, supra note 1, at ¶ 42. ↑
33. Id. ↑
34. Id. ↑
35. Id. at ¶ 47. ↑
36. Id. at ¶ 46. ↑
37. Id. ↑
38. Id. ↑
39. Id. at ¶ 42-48. ↑
40. Id. at ¶ 17. ↑
41. Id. at ¶ 48. ↑
42. Id. at 42-44. (this blog focuses on the latter). ↑
43. Id. at 50. ↑
44. Id. at ¶ 55. ↑
45. Amnesty International, supra note 1, at 20. ↑
46. UNHCR, supra note 1 at ¶ 50. ↑
47. Id. ↑
48. Id. at 56-57. ↑
49. Id. ↑
50. Amnesty International, supra note 1, at 17. ( ↑
51. UNHCR, supra note 1 at ¶ 58. ↑
52. Id. ↑
53. Id. at ¶ 59. ↑
54. Id. (explained further in ¶ 63). ↑
55. Id. ↑
56. Id. at ¶ 60. ↑
57. Id. ↑
58. Id. ↑
59. Id. ↑
60. Id. at ¶ 65. ↑
61. Id. ↑
62. Id. ↑
63. Id. at ¶ 70. ↑
64. Id. at ¶ 72. ↑
65. Id. ↑
66. Id. at ¶ 73. ↑
67. Id. at ¶ 78. ↑
68. Id. ↑
69. Id. at ¶ 79. ↑
70. Id. at ¶ 82. ↑
71. Id. at ¶ 83. ↑
72. Id. at ¶ 84. ↑
73. US Constitution, 10^th Amendment. ↑
74. Berman v. Parker, 348 U.S. 26 (1954). ↑
75. UNHCR, supra note 1, at ¶ 50. ↑
76. KRS §503.090(2). ↑
77. KRS §503.090(2)(a). ↑
78. Search warrant 20-1371 ; Department of Justice, supra note 16 (explaining that detectives knew the warrant would be executed at night by officers with their weapons drawn which created a risk that a person in the home could be injured or killed). ↑
79. KRS §503.090(2)(b). ↑
80. KRS §218A.1412; KRS §218A.1415. ↑
81. KRS §503.090(2)(c). ↑
82. UNHCR, supra note 1, at ¶ 58. ↑
83. Department of Justice, supra note 16 (explaining that Detective Kelly Goodlett and another former detective falsified the affidavit to obtain the search warrant to search Breonna Taylor’s home without probable cause and covered up the false warrant by lying to criminal investigators). ↑
84. UNHCR, supra note 1, at ¶ 59. ↑
85. Id. ↑
86. 20-CR-00767 Notice-Motion Order ↑
87. Eggert Affidavit (explaining that the adjacent neighbor never heard police announce their presence and multiple neighbors heard Mr. Walker shouting for help). ↑
88. Department of Justice, supra note 16 (explaining that Detective Goodlett and other detectives admitted to providing false information to investigators after her death). ↑
89. UNHCR, supra note 1, at ¶ 60. ↑
90. Id. ↑
91. Id. ↑
92. Id. ↑
93. Jada Pinkett Smith, Willow Smith, & Adrienne Banfield-Norris, Red Table Talk: How the Police Murdered Breonna Taylor: The Only Witness Speaks Out, Facebook Watch, https://www.facebook.com/redtabletalk/videos/1305022870316428. ↑
94. Id. ↑
95. UNHCR, supra note 1 at ¶ 65. ↑
96. Id, ↑
97. UNHCR, supra note 1, at ¶ 78. ↑
98. Tessa Duvall, Louisville police release the Breonna Taylor incident report. It’s virtually blank, Louisville Courier Journal (Jun. 11, 2020), https://www.courier-journal.com/story/news/crime/2020/06/10/breonna-taylor-shooting-louisville-police-release-incident-report/5332915002/. ↑
99. Id. ↑
100. Id. ↑
101. Marlene Lenthang, Former Louisville police officer Brett Hankison, who was charged in Breonna Taylor case, has trial delayed to 2022, ABC News (Apr. 24, 2021), https://abcnews.go.com/US/louisville-police-officer-brett-hankison-charged-breonna-taylor/story?id=77287643.; Steve Almasy, Aaron Cooper, & Eric Levenson, Ex-officer Brett Hankison was found not guilty of endangering Breonna Taylor’s neighbors in a botched raid, CNN, (Mar. 4, 2022), https://www.cnn.com/2022/03/03/us/brett-hankison-trial-closing/index.html. ↑
102. Id. ↑
103. Current and Former Louisville, Kentucky Police Officers Charged with Federal Crimes Related to Death of Breonna Taylor, The United States Department of Justice (Aug. 4, 2022), https://www.justice.gov/opa/pr/current-and-former-louisville-kentucky-police-officers-charged-federal-crimes-related-death. ↑
104. Id. ↑
105. Id. ↑
106. UNHCR, supra note 1, at ¶ 82. ↑
107. UN A/HRC/51/53. ↑
108. Id. ↑
109. Id. ↑
110. Id. ↑
111. Amnesty International, supra note 5 at 34. ↑