Kary Antholis:

On today’s podcast my guest is, once again, Georgetown Law Professor, MSNBC Legal Analyst and Crime Story Consulting Editor, Paul Butler. In our conversation, Paul and I discuss the recent decision by a Kentucky grand jury to charge Louisville detective Brett Hankison with three felony counts of wanton endangerment and their decision not to charge him or the other officers involved with any accounts related to the death of Breonna Taylor. We also discuss the opening statement that Paul Butler would give if he was prosecuting the case against all three officers (which you can find here). 

Kary Antholis:

Paul Butler, thank you for joining me today.

Paul Butler:

Great to be here, Kary.

Kary Antholis:

Let’s talk about recent events. You presented for Georgetown University and on the Crime Story web site your opening statement if you were prosecuting the police officers who killed Breonna Taylor.

Paul Butler:

That’s right.

Kary Antholis:

We’ve had a decision from a grand jury in Louisville announced by the prosecutor in Louisville. Tell me your thoughts in reaction to that decision.

Paul Butler:

I think that the facts of the Breonna Taylor case warrant homicide charges. I made an opening statement in the case to show the prosecutor how it’s done, and I hope he knows how to try a case. So what I was doing was aligning my effort with the Movement for Black Lives activists and, really, concerned people all over the world who want to see justice in that case.

Paul Butler:

And while there’s been, I think, more attention to this case than to any other case involving police violence against an African American woman, it still was insufficient. I think that the attorney general of Kentucky made an overtly political decision that’s antithetical to justice and to his mission as the chief law enforcement officer of a state.

Kary Antholis:

Where do you think we go from here?

Paul Butler:

I think that we go where we always go with the 1,000 people who the United States police kill every year. The vast majority of those cases turn out exactly like this one, except that there’s not even an investigation. In almost all of those cases, the shooting is ruled “justified,” which is the word that the prosecutor used at his press conference.

Paul Butler:

And so the tragedy is this case is not unusual. This case is typical, and what’s different and offers some hope is that the attorneys for Breonna’s family and her own family members had the foresight to demand some reforms from the police as part of the settlement. And so one of the reforms is that there will have to be more supervision of police officers who obtain search warrants.

Paul Butler:

Another reform is incentives to get cops to live in the cities that they patrol. In many big cities now when we have a situation in which police departments are quite diverse, in New York and Washington and Los Angeles, happily, police officers are looking more like the cities they patrol. Unfortunately, with white officers they tend to live in the suburbs. The data suggest that African American and Latinx officers live in the city.

Paul Butler:

So part of this settlement in the civil case involving Breonna Taylor’s killing is incentives that will hopefully get more officers to live in the city. If you could imagine what a difference it might’ve made if the three police officers who killed Breonna Taylor were actually her neighbors. I doubt that they would’ve shot up the apartment complex in the same way if they have friends or people or people who they care about who- lived in that community.

Kary Antholis:

In your book, Chokehold, you talk about the use of force by Black and Latinx police officers against young Black men. And I believe you say that the rates of brutality by those officers is not all that much different than by white officers. Can you talk a bit about that in the context of what you just mentioned about the Louisville settlement with Breonna Taylor’s family?

Paul Butler:

So there’s one question about whether the race of police officers makes a difference in terms of Black people’s risk of being victims of police violence. And then there’s another question about when officers live in the communities they patrol, whether that makes them more effective officers.

Paul Butler:

So with regard to the race dynamic in terms of officer-involved shooting, part of the movement for criminal legal system reform as we’ve discussed before is the idea of being smart on crime rather than tough on crime, which calls for evidence-based practices to determine what actually works, what makes a difference. And we don’t have a whole lot of data on the race and how that matters with regard to officer-involved shootings.

Paul Butler:

But a couple of well-done studies, one from Philadelphia, suggests that an unarmed African American man is most at risk of being shot by a Latinx cop followed by an African American cop. This study found that a white cop was actually least likely to make a mistake called “threat vulnerability perception,” which means that you think that this cell phone I’m holding up is a gun and you shoot. So we don’t know why that is.

Paul Butler:

There’s a theory that because Black and Latinx officers tend to be deployed more frequently in Black and Latinx neighborhoods that’s why, but we don’t really know. But I was really interested, just again, in thinking about what the evidence suggests and this perception that their problem is unarmed Black men being shot by white cops. It’s not nearly that simple.

Paul Butler:

So the other issue is when officers live in the communities that they patrol, does that make a difference? And I think the limited evidence suggests that it does. You know, I think common sense, people’s own stories would confirm that. It’d be nice to have more information. But if you’re pointing to a tension between the idea that African American cops are more likely to live in the city and yet also are more likely to be involved in shootings or unarmed Black men, I think that’s interesting, and that’s an interesting point.

Kary Antholis:

What do you think the impact of this will be on use-of-force standards in Kentucky and beyond and on middle-of-the-night search warrants in Kentucky and beyond? I know that they’ve done away with no-knock warrants. But the idea that these cops say they announce themselves, although we have no recording to prove that they announced themselves, and-

Paul Butler:

We have one witness who says that the police announced themselves and 11, according to The New York Times, who says that they did not. The attorney general credited the one witness over the 11.

Kary Antholis:

What do you think the national standard should be with respect to breaking into a person’s home and using a search warrant? And similarly, what do you think the national standard should be in terms of use-of-force escalation, particularly in a situation where there are potentially innocent bystanders at risk?

Paul Butler:

Let’s break that down into a couple of different issues. So one is what happened in that case, and whether what happened in that case is an example of the need for systemic reform or is it a case of a few bad-apple cops? And while there are huge systemic problems in the American criminal legal process, which really is the subject of my book, Chokehold: Policing Black Men, I actually think this is a case of three bad-apple cops.

Paul Butler:

Because no-knock warrants are so dangerous, there are protocols in place in Louisville for how they should be executed. So one is because they’re so dangerous, there has to be an ambulance standing by in the community where the warrant is being served. Another is the place where the no-knock warrant is going to be executed has to be under surveillance for many hours before the warrant is executed so that police know exactly who is in the home before they barge into it.

Paul Butler:

Neither one of those was observed. The ambulance actually showed up and the police told it to go away. The person who was supposed to be watching the apartment fell down on the job. So this was negligence. Breonna’s life could’ve been saved not by implementing new policies but by simply following the existing rules. And again, that’s why this is a case involving bad-apple cops.

Paul Butler:

When people think about accountability, there is this desire for transformation and structural reform and new laws. But with regard to accountability for these officers, manslaughter and reckless homicide are already in the books. Those are crimes.

Paul Butler:

And I think it’s interesting that if you look at the politics, everyone gets that there’s a problem with policing. Conservatives and Republicans tend to say that it’s a problem of a few bad-apple cops. Democrats and progressives say the problems are more systemic.

Paul Butler:

I think when most Republicans and conservatives say that the problem is a few bad-apple cops, they don’t mean it, and I think the Breonna Taylor case is an example how they don’t mean it. We have this conservative African American prosecutor, the attorney general of Kentucky, who is the decider. We can pretend like it’s the grand jury who decides, but we all know who the legal adviser to the grand jury is. We all know who actually is making the decision, which Daniel Cameron essentially didn’t try to hide. His press conference was his justification for why there shouldn’t be charges.

Paul Butler:

And this in a sense should be an appropriate case for a conservative who thinks that the problem is bad-apple cop because here we have three bad-apple cops. And if you think about conservative values, quote/unquote, “values,” this is also a perfect case for them because if you’re a libertarian, you should be outraged at the specter of agents of the state breaking into your house in the middle of the night to look for drugs.

Paul Butler:

If you’re a faith-based conservative, you ought to be concerned about the sanctity of life and how a prosecution might actually promote that sanctity. If you’re a proponent of the Second Amendment, then the fact that Breonna’s boyfriend had a legal gun and he used that to repel what he thought was a home invasion, you should champion him.

Paul Butler:

By and large, we don’t hear these conservatives stepping up. There’ve been some support from libertarians with regard to understanding the tragedy of this case. But mainly from conservatives, there hasn’t been support for prosecuting these officers.

Paul Butler:

So when Republicans say that they get that there’s a problem but the problem is a few bad apples, don’t believe them. They don’t have a problem, by and large, with state violence against Black people.

Kary Antholis:

I think this is also an opportunity to talk about use-of-force standards. Each state sets its standards for use of force by police officers. 

Paul Butler:

Would that it was, because at least that would offer some kind of centralization. Unfortunately, it tends to happen police department by police department, and there are 18,000 different police departments in the United States.

Paul Butler:

So in Chokehold, I have some actual examples from police departments about what’s called use-of-force continuum. Policing, the way that it works in the United States is quite violent. And what use-of-force continuums are are official diagrams of the kind of violence that officers should use and when. So it starts from relatively minor.

Paul Butler:

Command stance is the way that officers use their bodies and their voices to exert authority and goes out from putting hands on people to handcuffs to batons to pepper spray, non-lethal to deadly force. And professional police departments train their officers about how to use these different levels of force depending on the circumstance.

Paul Butler:

So I think that that’s an important issue when we look at some of the other high-profile cases this summer, including the George Floyd case, where the officer used a chokehold that’s been barred in many jurisdictions but not all. So that’s hands-on.

Paul Butler:

But it turned out to be lethal in the context of how they used it against Mr. Floyd. And there the issue was reportedly they were trying to get him to get in the police car, and he didn’t want to get in the police car because he was claustrophobic and because he’d had bad experiences being beat up police in the past. And in order to make him get in the police car, they do this bizarre violent act of one officer putting his knee on Mr. Floyd’s neck, another restraining Mr. Floyd by the back and another by the legs, and the whole world knows what happened.

Paul Butler:

I don’t know if use of force itself is an issue in the Breonna Taylor case. So in that case, the police are executing this warrant. It was a no-knock warrant, which means that they don’t have to knock and announce, which is the usual requirement. And what the police actually do they talk among themselves.

Paul Butler:

They weren’t concerned about any violence from Breonna, which is why, supposedly, they dismissed the ambulance that was supposed to be there and why they didn’t pay a whole lot of attention to the negligent surveillance of the scene that should’ve occurred but didn’t. They just didn’t think it was going to be a big deal.

Paul Butler:

So they get the no-knock warrant, but what they do is worst of all. They knock but they don’t identify themselves as police. And I say they don’t identify themselves as police because if 11 people tell me something didn’t happen and one person tells me something did happen, I’m probably going to believe the 11 people who tell me that it didn’t happen. In that way I’m different than the attorney general of Kentucky.

Paul Butler:

So the evidence suggests that the police are banging on the door at 12:30 in the morning and not saying they’re cops. And Breonna and her boyfriend have drifted off to sleep. The boyfriend, Kenneth Walker, had a legal gun, so when they hear this banging on the door, they freak out like anybody would, and they throw on some clothes. Kenneth has a legal gun, and this is why people have guns: for situations like this.

Paul Butler:

They go to the hallway. They’re screaming, “Who is it? Who is it?” There’s no answer. And all of a sudden the door is broken down with a battering ram, and the police enter, whereupon Kenneth fires what he says was a warning shot, and it ends up hitting one officer in the leg. The officers were in plain clothes.

Paul Butler:

After Breonna’d been killed and the cops then leave, Kenneth calls 911, ironically, in retrospect. He thinks there’s been a home invasion. He has no idea that the people who just burst into his home and killed his girlfriend are police officers. So when people burst into your home and you fire, you’re acting in self-defense if you perceive a deadly threat.

Paul Butler:

That’s the case that I would’ve presented to the jury and, ironically enough, just that part of the case is accepted, apparently, by the Louisville police and prosecutors. Because at first, Kenneth was charged with attempted murder for shooting at the police officers who broke into his home, but those charges have been dropped, which is a concession that he has a right to shoot strangers who he didn’t know were police officers who invaded his home in the middle of the night.

Paul Butler:

Now, the way the attorney general is looking at the case is because Kenneth shot first, because he hit one cop in the leg, that the police were justified in shooting back. Because Kenneth shot first, they had the right to shoot back. And that is correct as a statement of law, but for a couple problems. One is the officers fire blindly. One officer literally doesn’t go inside the home. He’s outside firing through a screen door that’s both closed and covered. He literally can’t see what he’s shooting.

Paul Butler:

The other two officers fire over 20 rounds, and we know that this was blind and random shooting in part because Kenneth, the guy with the gun, who shot one officer, he doesn’t get shot at all by the cops. Breonna, who was unarmed and posed no threat to these cops, she gets shot six times. And so while in theory the officers had a right to use deadly force because they’d been shot at first, the problem with that self-defense theory in this case is that they continue to shoot well after the threat was gone.

Paul Butler:

There’s a neighbor who hears gunshots and she calls 911. For a 911 call, it goes on kinda long. 68 seconds until, 68 seconds in- into the call, 68 seconds into the call on the 911 tape you can still hear these bullets flying. Those two cops shot so much they have to stop and reload their guns. So this wasn’t about self-defense.

Paul Butler:

The other problem with the self-defense theory is that in Kentucky as in many other places, you can’t shoot somebody in self-defense if you’re placing innocent people at danger. So if the officers had burst into the apartment and one cop gets shot in the leg, let’s say that they run out of the apartment, all three of them, and they grab the bomb from their car and they toss the bomb into the apartment. That would be illegal. You can’t claim self-defense when the kind of force that you use is going to endanger other people.

Paul Butler:

And that’s essentially what they did. They didn’t use a bomb. They just wrongly fired 30 rounds all around the apartment complex. So that’s a long-winded way of saying that while often when officers use deadly force is an issue in these high-profile cases of police violence, in this case the issue isn’t so much how they used deadly force but whether under the law of self-defense, they were justified in shooting Breonna. If they shot the guy who was the threat, Mr. Walker, I don’t think we’d be talking about this case now. The problem is that they killed a person who was completely innocent.

Kary Antholis:

Part of what’s interesting to me about the conversation, and I completely take your point about the uniqueness of the Breonna Taylor situation. But in the context of the district attorney race here in Los Angeles, the challenger to Jackie Lacey, George Gascon, has repeatedly made a point of saying that the State of California needs to legislatively change the standard for a wrongful shooting in this state in order for prosecutors to have a better chance of convicting cops who wrongfully kill individuals.

Paul Butler:

Earlier we were talking about how you would hope, or I would hope that if you’re a conservative Republican who values the sanctity of life, you would support prosecution of the officers who killed Breonna Taylor. You know, one reason I think this case is getting so much attention is different from other high-profile cases in which Black people and brown people have been killed by the police.

Paul Butler:

Breonna was not a suspect in any crime. The police were executing a search warrant for drugs in her home because they thought that her ex-boyfriend had sent drugs through the mail to her home. But they didn’t think that she was involved in any kind of criminal activity.

Paul Butler:

And that’s different from many other tragic cases. So with Eric Garner, the police were investigating him for selling a loosie cigarette. For Mike Brown in Ferguson, the police were investigating him at first for literally jaywalking. With George Floyd in Minneapolis, the police were investigating him for passing a counterfeit bill, allegedly. Dumb shit to result in the police killing you.

Paul Butler:

But the difference with Breonna and perhaps one reason it’s captured the public imagination is that she was not the subject of any kind of law enforcement investigation. She was completely innocent, as is quite likely those other three men I mentioned were. But not even a suggestion of suspicion in Breonna.

Paul Butler:

So you might think that this would be an ideal case for people who claim to value the sanctity of life to get involved, and yet we really haven’t seen that. And that’s consistent with reform efforts and who’s on what side. So you might think that both as just a civic virtue and as a conservative value that police officers would be instructed to kill people only as a last resort. And if there’s a way that they can resolve a situation that doesn’t involve killing somebody, then that’s what they should do.

Paul Butler:

Guess what? That’s not what the law requires. So in the George Floyd Justice Act of 2020, there is a requirement that in order for local police departments to get federal money, they would have to require their police officers to only use deadly force as a last resort, to only use deadly force as a last resort.

Paul Butler:

So it may be that the issue in the district attorney’s race in Los Angeles is whether that should be required of the LAPD. And the reason that it’s an issue in cases in which police shoot people is because the defense never is “I had to shoot them. I didn’t have any other choice.” The defense is “The law allows me to shoot them.”

Paul Butler:

And so if these laws that only permit deadly force as a last resort are enacted, then if one of those officers is prosecuted, the prosecutor could ask on cross-examination, you know, “Officer Jones, was there another way that you could’ve resolved the situation? Was there another way that you could’ve made George Floyd get in the car or arrested George Floyd that didn’t involve using deadly force, that didn’t involve killing him?”

Paul Butler:

Now under the current law, defense attorney is going to say, “Objection, Your Honor. Irrelevant. It doesn’t matter if there was another way. That’s not what the law requires.”

Paul Butler:

If this new law is enacted, if the cop admits or the evidence suggests that, “Yeah, we could’ve just waited all night for George Floyd to get in the car. It’s not like it was a crime of the century. It’s not like we thought he was a threat.” Or “We could’ve gotten 10 officers. We knew he didn’t have a weapon. We could have gotten 10 officers and just picked him up and put him in the car.” If those reasonable alternatives existed, then killing him would be the crime that it should be.

Kary Antholis:

I just wanna ask one more question. I really appreciate your time, Paul. We’ve got 45 days to the election. What do you see as the greatest threats to the rule of law in the country over the course of those 45 days and thereafter?

Paul Butler:

The greatest threat is that President Trump is going to steal the election. I’m not concerned that if Biden is declared the winner and Trump somehow refuses to leave that that’s going to be a big problem. If, on January 20th, he doesn’t want to leave, he will be escorted out by the Secret Service or the Metropolitan Police Department.

Paul Butler:

But if he, if his campaign continues to work with the Russians as it did in 2016 but this time with the apparatus of the most powerful office in the world and, unfortunately, people much smarter and strategic than the president himself also working for this anti-democratic, despotic, malicious, diabolical bull, I think it could happen.

Kary Antholis:

These are perilous times, and I really appreciate your being on the front lines of advocating for righteous reform and justice.

Paul Butler:

Thank you, Kary, and thank you also for your great work. You know, the Chinese symbol for revenge is a symbol that means “Tell 10 families.” And when I think of the importance of Crime Story, I think you’re telling 10 families. I think that we are getting the word out.

Paul Butler:

It’s not partisan in a sense because the main thing that we’re doing is telling stories about what’s really happening. I think it might have an impact on folks in a way that makes them want change. But the beauty and the value of what we’re doing and under your leadership is just telling the stories. So  thank you for that.

Kary Antholis:

I really appreciate the kind words and, of course, all of your efforts contributing to what we’re doing.