People are understandably angry that the only charges in the death of Breonna Taylor are against one officer for wantonly endangering Taylor’s neighbors. Alongside this reaction, it is worth keeping in mind that there is little evidence that criminal prosecutions of individual officers will do much to protect people from unnecessary police violence. To eliminate the types of police searches and uses of force that led to Taylor’s killing, we need to look beyond such prosecutions.
Police shootings like the one that killed Taylor occur in part because our legal system has, for far too long, tolerated inaccurate statements by police officers seeking warrants to search homes and excused unnecessary police violence in executing those search warrants, especially in cases involving alleged drug trafficking. Judges, prosecutors and legislators, alongside police, bear responsibility for this. Taylor’s death underscores the need for each of those actors to take ownership for fixing this deadly problem.
The search warrant that resulted in the forced entry into Breonna Taylor’s home might never have been issued if judges were in the habit of more stringently probing the statements officers make to secure warrants. A Louisville detective stated in a sworn affidavit that he was told by a postal inspector that the primary suspect in the drug case they were investigating had been receiving packages at Taylor’s home. The inspector says he was not consulted by officers and did not find anything suspicious in the packages delivered to Taylor’s home. We may never know the truth, but we do know that the law gives judges little incentive to probe the accuracy of officers’ sworn statements in affidavits.
The Constitution requires that to obtain a search warrant, police must first set out facts in an affidavit demonstrating “probable cause.” But around the time the war on drugs started, the Supreme Court started to water down this requirement. Now, even if an officer commits perjury or includes facts in an affidavit with “reckless disregard” to whether they are true, the warrant is still valid as long as the other information in the affidavit is enough to establish probable cause. This hardly encourages officers to be sure of their facts, or judges to review closely officer affidavits.
Further, judges generally consider challenges to search warrants only when raised by a criminal defendant. A judge can be hard pressed to find a search warrant invalid in these circumstances, no matter how many falsehoods the affidavit contained. After all, the officer found drugs, lending after-the-fact credence to what would otherwise be a shaky claim.
Nor do judges often have occasion to consider challenges to searches where officers found nothing. It can be easy for judges to fall into thinking that officers always have their facts right or, at least, right enough. Unsurprisingly, studies have found that warrant affidavits often include extensive “boilerplate” passages regarding how trustworthy information or informants are, or the facts giving rise to probable cause.
Many judges nonetheless diligently probe affidavits. But it is hard to have confidence in the accuracy of warrants generally, or in the particular warrant issued to search Taylor’s home, given this lack of legal constraints.
Officers had little legal incentive even to consider giving Taylor a genuine opportunity to let them into her home before they forced their way in, even though that was theoretically her constitutional right. The Supreme Court confirmed 25 years ago that the Constitution generally requires that police “knock and announce” before entering homes, even with a warrant. But the court has since rendered this requirement largely ineffectual. In 2006, the Supreme Court held that the exclusionary rule — which limits the use of illegally obtained evidence — does not apply to violations of the knock-and-announce rule. This decision removed the primary legal restraint on constitutional overreach by officers during searches of homes.
Finally, there has long been insufficient constitutional incentive for the Louisville Police Department, or any law enforcement agency, to require and train its officers to do what they can to avoid situations where deadly force is likely to be required. This is because the constitutional reasonableness of an officer’s force is based on whether it was reasonable at the moment it was used, rather than considering also whether the officer could have avoided a situation involving deadly force by using safer tactics.
The laxity of the constitutional case law regarding search warrants and police use of force underscores the need for state legislatures to fill in the gap by updating antiquated statutes or drafting new ones. It also underscores the need for prosecutors and judges to redouble their efforts to ensure that police are diligent in justifying the need to destroy peoples’ homes and endanger their lives when executing search warrants. It is better to prevent crimes by police officers than to prosecute them after the fact.
Christy E. Lopez is a professor at the Georgetown University Law Center in Washington, D.C.