ARTICLES

SOMETHING ROTS IN LAW ENFORCEMENT

AND IT’S THE SEARCH WARRANT:

THE BREONNA TAYLOR CASE

BLANCHE BONG COOK

ABSTRACT

When police rammed the door of Breonna Taylor’s home and shot her five

times in a hail of thirty-two bullets, they lacked legal justification for being

there. The affidavit supporting the warrant was perjurious, stale, vague, and

lacking in particularity. The killing of Breonna Taylor, however, is not just a

story about the illegality of the warrant. It is also about the legality of the

circumstances that facilitated her killing. Police officers lying to obtain

warrants and magistrates rubber-stamping facially defective warrants are the

stories of individual failings. This Article examines a weightier structural

problem: How the Supreme Court fashioned legal doctrine that created the

conditions that led to Breonna Taylor’s death.

This Article transcends the narrative of bad-apple cops. It is the first to

present a structural framework for analyzing how Court rulings about the

acquisition and execution of search warrants inequitably distribute premature

death in marginalized communities. When the Court refused to apply the

exclusionary rule to evidence obtained in violation of the knock-and-announce

requirement, it incentivized police to ignore the rule. The result has been

carelessness in the acquisition of warrants and callousness in their execution.

Associate Professor of Law, University of Kentucky J. David Rosenberg College of

Law. B.A., Vassar College. J.D., University of Michigan Law School. Assistant United

States Attorney, 2005-2014, United States Department of Justice. I would like to thank the

University of Kentucky J. David Rosenberg College of Law for supporting this research

with a summer research grant. Thank you to all of the following for deeply appreciated

feedback: Christopher Bradley, Jennifer Chacon, Ramsi Woodcock, and Harold

McDonough. I must specially thank my loyal and brilliant research assistants, without

whom I would lose inspiration: Bennett Tuleja, Sarah Byres, Olivia Sandlin, and Chabre

Woods. I want to express my gratitude to the Boston University Law Review editors who

remarkably pushed this scholarship forward. I must also thank my Administrative Assistant

April Brooks, particularly for all of her trips to my home during the pandemic. I want to

dedicate this article to the memory of Breonna Taylor and Tamika Palmer, Breonna Taylor’s

mother. I can only hope this Article provides a very small fraction of the justice that you

both deserve.

2 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

When the Court gave police immunity for violating the rule, it sealed Breonna

Taylor’s fate. Police refusal to knock and announce and to engage in a

substantial waiting period before ramming the door is untenable in an age of

increased Stand Your Ground Laws and unbridled gun ownership. The proper

protocols for police home invasion demand the Supreme Court’s review.

The spectacle of Breonna Taylor’s killing, along with so many others,

inflicted a cultural trauma on the public, particularly marginalized

communities. The illegal warrant that set Breonna Taylor’s death in motion,

therefore, demands a public vetting, preferably in an adversarial setting where

one party does not monopolize both the facts and the narratives surrounding

those facts. The repeated failure to hold police accountable for their killings

will destroy the criminal justice system as we know it. The next Breonna Taylor

is both foreseeable and preventable.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 3

CONTENTS

INTRODUCTION .................................................................................................... 4

I. THE SEARCH WARRANT ......................................................................... 13

A. Background ..................................................................................... 13

B. The Affidavit ................................................................................... 14

C. The Affidavit Was Obtained with Intentional

Misrepresentations ......................................................................... 17

D. The Affidavit Is a Product of the War on Drugs ............................. 18

II. INSUFFICIENCY OF THE AFFIDAVIT ......................................................... 21

A. It Would Not Survive a Franks Hearing ......................................... 22

B. It Did Not Meet the Standard of Probable Cause .......................... 29

C. It Was Stale ..................................................................................... 33

D. It Lacked an Evidentiary Nexus that Connected Taylor to Drug

Activity ............................................................................................ 36

E. After-Acquired Evidence Does Not Apply ...................................... 44

F. The Leon Good-Faith Exception Does Not Apply .......................... 45

III. NO-KNOCK WARRANTS ......................................................................... 47

A. The Legal History of No-Knock Warrants ...................................... 47

B. Jaynes’s Affidavit Failed to Satisfy the Threshold for a

No-Knock Warrant ......................................................................... 50

C. No-Knock Warrants Have Become Routine ................................... 54

D. The Slippery Slope to Ram-and-Announce Warrant Executions .... 55

IV. THE LACK OF POLICE ACCOUNTABILITY ............................................... 60

A. The Police Were Not Held Accountable for Their Actions ............. 60

B. No Video Record of the Botched Raid Exists ................................. 62

C. The Police Had Time to Craft Narratives of Innocence ................. 64

V. POLICE VIOLENCE AND PEOPLE OF COLOR ............................................ 66

A. Police Shootings and State-Sanctioned Violence ........................... 67

B. Spectacle and Cultural Trauma ...................................................... 74

VI. RESPONDING TO PUBLIC OUTCRY: SOLUTIONS TO POLICING

PROBLEMS .............................................................................................. 78

A. Create Multiple Layers of Independent Review of

Police Conduct ............................................................................... 79

B. Apply the Exclusionary Rule to Unconstitutional Warrants .......... 81

C. Require Higher Justification for No-Knock Entry .......................... 82

D. Collect Data on Dynamic Entries and Make It Available

to the Public .................................................................................... 82

E. Use Independent Review Boards to Monitor Judges ...................... 84

CONCLUSION ...................................................................................................... 85

4 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

I want you to know that I’m still proud to be a cop.

. . . I know we did the legal, moral and ethical thing that night. It’s sad

how the good guys are demonized, and criminals are canonized.

—Sergeant Jonathan Mattingly, Louisville Metro Police Department, in

an email to 1,000 of his colleagues, September 22, 2020.

[T]his group of people, it is straight cashflow for them.

. . . [T]hey get other people involved and it’s usually females. It’s usually

baby mamas . . . or it’s girlfriends that they can trust. They can trust them

with their money and their stuff.

—Detective Joshua Jaynes, when asked why he targeted Breonna

Taylor’s home.

INTRODUCTION

Shortly after midnight on March 13, 2020, seven Louisville Metro Police

Department (“LMPD”) officers raided the home of Breonna Taylor, armed and

wearing full military gear.

During the execution of a search warrant, they used

a battering ram to rip her door from its hinges and shot her five times in a hail

of thirty-two bullets.

They found no drugs, guns, cash, or contraband.

Taylor

E-mail from Jonathan Mattingly, Sergeant, Louisville Metro Police Dep’t (Sept. 22,

2020, 2:09 AM), reprinted in Jonathan Bullington, Wounded Officer in Breonna Taylor

Case Emails Cops: ‘I’m Proof They Do Not Care About You,’ COURIER J. (Louisville) (Sept.

23, 2020, 10:52 AM), https://www.courier-journal.com/story/news/local/breonna-

taylor/2020/09/22/sgt-jonathan-mattingly-emails-officers-about-breonna-taylor-

shooting/5865327002/.

Interview by Jason Vance with Josh Jaynes, Detective, Louisville Metro Police Dep’t

20-21 (May 19, 2020) [hereinafter Interview with Josh Jaynes], https://louisville-

police.org/DocumentCenter/View/1808/PIU-20-019-Transcripts [https://perma.cc/X96Q-

WGDQ].

Tessa Duvall, Breonna Taylor Shooting: A Minute-by-Minute Timeline of the Events

That Led to Her Death, COURIER J. (Louisville) (Sept. 25, 2020, 6:45 PM),

https://www.courier-journal.com/story/news/local/breonna-taylor/2020/09/23/minute-by-

minute-timeline-breonna-taylor-shooting/3467112001/; Tessa Duvall, Breonna Taylor

Shooting: A One-Year Timeline Shows How Her Death Changed Louisville, COURIER J.

(Louisville) (Mar. 13, 2021, 11:12 AM), https://www.courier-journal.com/in-

depth/news/local/breonna-taylor/2021/03/04/breonna-taylor-shooting-timeline-details-year-

since-her-death/4546097001/; Tessa Duvall, Fact Check 2.0: Separating the Truth from the

Lies in the Breonna Taylor Police Shooting, COURIER J. (Louisville) (Mar. 17, 2021, 4:34

PM) [hereinafter Duvall, Fact Check], https://www.courier-

journal.com/story/news/crime/2020/06/16/breonna-taylor-fact-check-7-rumors-

wrong/5326938002/; Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-

Burroughs, What to Know About Breonna Taylor’s Death, N.Y. TIMES (Apr. 26, 2021),

https://www.nytimes.com/article/breonna-taylor-police.html.

Oppel Jr. et al., supra note 3.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 5

was not a suspect in the drug investigation, which is why there was no arrest

warrant for her.

She had no criminal history.

According to the search warrant

affidavit, no one had witnessed her with or near drugs.

No one had seen drugs

in her home.

There was no evidence that implicitly or explicitly stated that she

trafficked drugs.

Taylor, a twenty-six-year-old emergency room technician, had just

completed a double shift and had retired for the evening.

There was no

evidence that she was dangerous or a flight risk, which is why a SWAT team

was not deployed.

Only one officer was charged in her killing, for stray

bullets he wantonly and indiscriminately shot into another home.

It took

almost a year to terminate any officer implicated in her killing.

LMPD

Detective Joshua Jaynes, who acquired the search warrant, is fighting for

reinstatement with back pay.

Although he made false statements to obtain the

Radley Balko, Opinion, Correcting the Misinformation About Breonna Taylor, WASH.

POST (Sept. 24, 2020), https://www.washingtonpost.com/opinions/2020/09/24/correcting-

misinformation-about-breonna-taylor/.

See id. (“The portion of the warrant affidavit that requested a no-knock raid was the

exact same language used in the other four warrants. It stated that drug dealers are

dangerous and might dispose of evidence if police knock and announce. It contained no

particularized information as to why Taylor herself was dangerous or presented such a

threat.”).

Radley Balko, Opinion, The No-Knock Warrant for Breonna Taylor Was Illegal,

WASH. POST (June 3, 2020), https://www.washingtonpost.com/opinions/2020/06/03/no-

knock-warrant-breonna-taylor-was-illegal/ (stating that the closest she came to one was a

dismissed shoplifting charge from 2012).

See Affidavit for Search Warrant paras. 1-14 (Mar. 12, 2020) (No. 20-1371)

[hereinafter Affidavit for Search Warrant], https://reason.com/wp-

content/uploads/2020/06/Breonna-Taylor-search-warrants.pdf [https://perma.cc/NQW5-

6RCG] (failing to disclose in affidavit any such witnesses if they existed).

See id. (failing to disclose in affidavit any such witnesses if they existed).

See id. (failing to even implicate any such evidence if it existed).

See ZZ Packer, Cultural Comment, The Empty Facts of the Breonna Taylor Decision,

NEW YORKER (Sept. 27, 2020), https://www.newyorker.com/culture/cultural-comment/the-

empty-facts-of-the-breonna-taylor-decision.

See Balko, supra note 7.

Ben Tobin, What AG Said About Findings; Read Cameron’s Speech on Grand Jury

Decision, COURIER J. (Louisville), Sept. 24, 2020, at B6.

See Oppel Jr. et al., supra note 3.

Jackelyn Jorgensen, Former LMPD Detective Who Wrote Breonna Taylor Warrant

Files Lawsuit to Get His Job Back, WHAS11 (Sept. 20, 2021, 2:59 PM),

https://www.whas11.com/article/news/local/joshua-jaynes-files-lawsuit-against-merit-

board-to-get-job-back/417-de226d14-919d-4da7-909f-c12fcea82297

[https://perma.cc/4H76-DZPZ].

6 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

warrant, he insists that he did nothing wrong.

John Mattingly, one of three

LMPD officers who shot Taylor while executing the warrant, has since retired

with a full pension and a book deal based on his participation in Taylor’s

killing.

As a threshold matter, the legal justification for police presence in Taylor’s

home is highly contested. The search warrant that authorized their home

invasion was perjurious, stale, vague, and lacking in particularity.

When

Jaynes obtained the warrant, he swore under oath that he had “verified”

through a United States Postal Inspector that Jamarcus Glover, one of the

targets of a drug investigation, had been receiving packages at Taylor’s

home.

After Taylor’s death, the Postal Inspector flatly rejected Jaynes’s

claim, stating that no packages were being delivered to Taylor’s home.

LMPD’s own internal investigation concluded that LMPD was repeatedly told

that “no packages, ‘suspicious or otherwise,’ [were] delivered to Taylor’s

home.”

To explain his affidavit, Jaynes claimed that Mattingly told him that

Glover was receiving packages at Taylor’s home but that the Postal Inspector

Tessa Duvall & Ayana Archie, Live Updates: LMPD Investigator Who Looked into

Cop Who Got Breonna Taylor Warrant Takes Stand, COURIER J. (Louisville) (June 3, 2021,

3:34 PM), https://www.courier-journal.com/story/news/local/breonna-taylor/2021/06/03/ex-

louisville-cop-joshua-jaynes-pushes-get-job-back-live-updates/7511197002/.

Tessa Duvall, Louisville Police Officer Shot in Breonna Taylor Raid Retires from

LMPD, COURIER J. (Louisville) (June 2, 2021, 1:32 PM), https://www.courier-

journal.com/story/news/local/breonna-taylor/2021/06/02/louisville-cop-shot-breonna-taylor-

raid-leaves-lmpd/7507269002/ (“Mattingly is eligible to retire with a full pension.”);

Elizabeth A. Harris & Alexandra Alter, Controversial Title Presents Tightrope Act for a

Publisher, N.Y. TIMES, Apr. 17, 2021, at B5 (indicating that Post Hill Press still intends to

publish Mattingly’s book even though Simon & Schuster refuses to distribute it).

See infra Part II.

Affidavit for Search Warrant, supra note 8, para. 9; Travis Ragsdale, Attorney for

LMPD Detective Says Breonna Taylor Search Warrant ‘Reeks’ of Probable Cause, WDRB

(Oct. 13, 2020), https://www.wdrb.com/in-depth/attorney-for-lmpd-detective-says-breonna-

taylor-search-warrant-reeks-of-probable-cause/article_52ed7f36-0d65-11eb-912a-

cfc617ea0187.html [https://perma.cc/FF4G-5T9W].

See Jason Riley, Marcus Green & Travis Ragsdale, Louisville Postal Inspector: No

‘Packages of Interest’ at Slain EMT Breonna Taylor’s Home, WDRB (Sept. 29, 2020),

https://www.wdrb.com/in-depth/louisville-postal-inspector-no-packages-of-interest-at-slain-

emt-breonna-taylor-s-home/article_f25bbc06-96e4-11ea-9371-97b341bd2866.html

[https://perma.cc/AR8B-BE65].

Ragsdale, supra note 19.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 7

had not designated any as suspicious.

Mattingly denies making that

statement.

A confluence of the War on Drugs, the subsequent militarization of policing,

and the Supreme Court’s gradual erosion of Fourth Amendment protections

facilitated Taylor’s death.

Under the Court’s watch, dynamic and forcible-

entry methods have become law enforcement’s favored tool, when executing

search warrants, particularly in neighborhoods branded as “high crime areas,”

where there is a perceived increased risk of flight, destruction of evidence, or

injury.

These entry methods occur disproportionately in low-income

communities.

No‐knock raids or dynamic entries occur when police barge

onto property without notifying the occupants and ram the door off the hinges

See Tyler Emery, Attorney for LMPD Det. Jaynes Says There’s ‘Overwhelming

Evidence’ for Search Warrant of Breonna Taylor’s Home, WHAS11 (Oct. 15, 2020, 12:02

AM), https://www.whas11.com/article/news/investigations/breonna-taylor-case/attorney-

for-lmpd-det-jaynes-says-theres-overwhelming-evidence-for-search-warrant-of-breonna-

taylors-home/417-870bf644-0436-4adc-86f3-0cff4275f35f [https://perma.cc/X5Q3-7MB9]

(“Jaynes said Mattingly told him in February that Glover was receiving mail packages at

Taylor’s home, but he said they were not designated as ‘suspicious’ by the Postal

Inspector.”); Phylicia Ashley, Breonna Taylor: New Videos, Audio Recordings, Documents

Reveal More from March 13th Shooting, WAVE3 NEWS (Dec. 10, 2020, 1:14 AM),

https://www.wave3.com/2020/12/09/breonna-taylor-new-videos-audio-recordings-

documents-reveal-more-march-th-shooting/ [https://perma.cc/8FW3-9A2H] (noting

Jaynes’s assertion that a witness observed the conversation where Mattingly “told Jaynes

there were suspected packages going to Taylor’s home”).

See Tessa Duvall, Did He Lie or Didn’t He? Ex-Cop Who Got Breonna Taylor

Warrant Fights for His Job Back, COURIER J. (Louisville) (June 3, 2021, 5:24 PM),

https://www.courier-journal.com/story/news/local/breonna-taylor/2021/06/03/fired-

louisville-cop-who-got-breonna-taylor-search-warrant-fights-his-job-back/7504721002/

(“Mattingly, who did not testify Thursday and recently retired from LMPD, has said he told

Jaynes [that] Glover wasn’t getting packages at Taylor’s apartment.” (emphasis added)).

See Devon W. Carbado, From Stopping Black People to Killing Black People: The

Fourth Amendment Pathways to Police Violence, 105 CALIF. L. REV. 125, 149-55 (2017)

(describing general sequence of decisions that lead to police violence against Black people);

see also Paul Butler, The White Fourth Amendment, 43 TEX. TECH L. REV. 245, 250 (2010)

(“The Whren opinion assures police officers that courts examining the validity of a search

must ignore the officers’ racially biased motivations in effectuating a search.” (citing Whren

v. United States, 517 U.S. 806, 810-13 (1996))).

Butler, supra note 24, at 254 (“The police have more power in high-crime

neighborhoods than in low-crime neighborhoods.”); see also Andrew Guthrie Ferguson,

Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas,” 63 HASTINGS

L.J. 179, 183 (2011) (noting “high crime areas” are relevant consideration of courts when

reviewing police officers’ reasonable suspicions); Margaret Raymond, Down on the Corner,

Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable

Suspicion, 60 OHIO ST. L.J. 99, 100 (1999) (“Whether persons are subjected to stops turns to

a substantial extent on where they live.”).

See Kevin Sack, Door-Busting Drug Raids Leave Trail of Blood, N.Y. TIMES, Mar. 19,

2017, at 1.

8 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

while yelling “Police!”

Although the Court has mandated particularized

evidence in search warrant applications to avoid disasters like Taylor’s killing,

LMPD and the magistrate that issued the warrant disregarded those

requirements, and Taylor is dead.

The killing of Breonna Taylor, however, is not just a story about the

illegality of the warrant. It is also about the legality of circumstances that

facilitated her killing. Jaynes’s lying, Mattingly’s failure to intervene, and the

magistrate’s rubber-stamping a facially defective warrant are the stories of

individual failings. A weightier contributing factor is the Supreme Court. The

Court created the conditions that led to Breonna Taylor’s death.

In Hudson v.

Michigan,

after centuries of fealty to the castle doctrine and constitutional

devotion to the sanctity of the home, the Court took a dramatic turn and held

that the exclusionary rule did not apply to evidence obtained in violation of the

knock-and-announce requirement.

That requirement gives startled residents a

moment to come to their senses before the police invade and before the

residents resort to self-defense.

Hudson freed the police to ignore the knock-

and-announce rule and to engage in dynamic entries unconstrained by the

Fourth Amendment.

Refusing to apply the exclusionary rule incentivizes

carelessness in the acquisition of the warrant and callousness in its execution, a

trickle-down effect throughout the system.

When police know that evidence

obtained in violation of the Constitution will not be suppressed, they become

less vigilant about investigations, surveillance, verification of information, and

the exercise of caution when executing warrants.

All of these factors sealed

Taylor’s fate.

See Authority of Federal Judges and Magistrates to Issue “No-Knock” Warrants, 26

Op. O.L.C. 44, 44 (2002) (defining no-knock warrants).

See infra notes 268-98 and accompanying text.

See generally Osagie K. Obasogie, More than Bias: How Law Produces Police

Violence, 100 B.U. L. REV. 771, 775-814 (2020) (discussing Supreme Court precedent that

has led to police’s increase of “use-of-force” tactics).

547 U.S. 586 (2006).

See id. at 594 (“Since the interests that were violated in this case have nothing to do

with the seizure of the evidence, the exclusionary rule is inapplicable.”).

See id. (describing functions of knock-and-announce rules).

See id. at 609 (Breyer, J., dissenting) (“As in Mapp, some government officers will

find it easier, or believe it less risky, to proceed with what they consider a necessary search

immediately and without the requisite constitutional (say, warrant or knock-and-announce)

compliance.” (citing Mapp v. Ohio, 367 U.S. 643 (1961))).

See id. (stressing fact that exclusionary rule provides safeguard such that officers will

respect Fourth Amendment requirements); Balko, supra note 7 (discussing fear that ruling

in Hudson would eventually lead to police “ignor[ing] the knock-and-announce rule

entirely”).

Balko, supra note 7 (concluding this change in police behavior would “mean that more

people—both cops and civilians—would die”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 9

In Hudson, a five-to-four decision authored by Justice Antonin Scalia, the

Court jettisoned Fourth Amendment precedents and applied a questionable

reinterpretation of its problematic cost-benefit approach to Fourth Amendment

analysis.

There, the Court raised the evil specter of the boogeyman to tip the

scales. According to the Court, the danger of releasing dangerous criminals

(crack cocaine dealers) into society greatly outweighed less onerous

alternatives to disincentivizing police violence, namely civil rights claims and

increased police professionalism.

The Court’s sanguine faith in better

policing is of no comfort to Tamika Palmer, Breonna Taylor’s mother, and the

families of the thousands of other victims the police kill yearly.

As it weighed the societal interests at stake in Hudson, the Court specifically

foresaw that unannounced entries had the potential to provoke violence from a

startled resident acting in self-defense—the very tragedy that befell Taylor.

The Court, however, elected to prioritize drug prosecutions over the Fourth

Amendment right to be safe and secure in the home. In this way, the Court’s

doctrinal approach and embrace of a cost-benefit analysis “allow[ed]

ostensibly ‘neutral’ legal rules” to “predictably lead to avoidable death[].”

Many scholars have examined how legal doctrine is a contributing factor to

death and injury in the police use-of-force context.

This Article examines

how legal doctrine creates the conditions that lead to death in the warrant

acquisition and execution process. More pointedly, it transcends the narrative

of bad-apple cops and instead presents a structural framework for analyzing

how Supreme Court rulings about the acquisition and execution of search

warrants inequitably distributes premature death in marginalized

communities.

The story of Breonna Taylor is more than a tale of police and

judges acting outside the confines of the law. Rather, the rule of law is itself

the source of her death.

Hudson opted to place broad discretion in the hands

of the police untethered from the Fourth Amendment, leaving the public

unprotected.

This is untenable in an age of increased Stand Your Ground

See Hudson, 547 U.S. at 594-95 (opining that the costs of permitting a no-knock entry

are small compared to “the jackpot” of evidence suppression, resulting often in “a get-out-

of-jail-free card”).

See id. at 594.

Id. (“[U]nannounced entry may provoke violence in supposed self-defense by the

surprised resident.”).

Obasogie, supra note 29, at 771, 774.

See, e.g., id. at 774 (citing Paul Butler, Devon Carbado, and Tracey Maclin as three

such scholars).

See, e.g., Carbado, supra note 24, at 149-55 (discussing the ways practical application

of police tools results in disproportionate impact on communities of color).

Id. at 151-55.

See supra notes 30-39 and accompanying text.

10 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

laws

and unbridled gun ownership.

Both the knock-and-announce rule and

the length of the waiting period before dynamic entries demand the Court’s

review.

The absence of justification for the warrant, the callousness with which it

was executed, the subsequent attempts to cover up police excess while

demonizing Taylor, and the Supreme Court’s distribution of premature death

have eradicated the threadbare credibility of criminal justice, particularly in

marginalized communities that endure oversurveillance, overcriminalization,

death, and destruction.

The killing of Breonna Taylor was part of an all-too-

common absurdist nightmare of Black people murdered through state-

sanctioned violence as they go about common activities in their daily lives:

walking to a candy store (Trayvon Martin),

playing with a toy gun in a park

(Tamir Rice),

sitting on a couch at home eating ice cream (Botham Jean),

See Stand Your Ground Laws Are a License to Kill, EVERYTOWN FOR GUN SAFETY

SUPPORT FUND: EVERYTOWN RSCH. & POL’Y (Sept. 8, 2021),

https://everytownresearch.org/report/stand-your-ground-laws-are-a-license-to-kill/

[https://perma.cc/85UN-SV2H] (“A recent study comparing the five years before states

began enacting these laws (2000–2004) to the 13-year period following their enactment

(2005–2017), found justifiable firearm homicide rates increased by 55 percent in states that

enacted Stand Your Ground, while these rates increased by 20 percent in states that did not

have such laws.”).

See Lisa Dunn, How Many People in the U.S. Own Guns?, WAMU (Sept. 18, 2020),

https://wamu.org/story/20/09/18/how-many-people-in-the-u-s-own-guns/

[https://perma.cc/T6BW-V6P3] (reporting that “[a]bout 40% of Americans say they or

someone in their household owns a gun”).

In 2020, 35% of Americans said they agreed that the police use the right amount of

force in every situation—this is a decrease from 2016, when 45% of respondents agreed

with that statement. See Majority of Public Favors Giving Civilians the Power to Sue Police

Officers for Misconduct, PEW RSCH. CTR. (July 9, 2020),

https://www.pewresearch.org/politics/2020/07/09/majority-of-public-favors-giving-

civilians-the-power-to-sue-police-officers-for-misconduct/ [https://perma.cc/C2BA-KCSU].

The percentage of respondents who believe police treat racial and ethnic groups equally

dropped from 47% in 2016 to 34% in 2020, and the share of those who thought the justice

system was doing a good job of holding officers accountable when misconduct occurs fell

from 44% in 2016 to 31% in 2020. Id.

In February 2012, George Zimmerman, a self-appointed watchman, shot and killed

unarmed teenager Trayvon Martin. See Ursula Perano, Deaths Without Consequences,

AXIOS (May 30, 2020), https://www.axios.com/police-killings-black-lives-8fbd7c70-486a-

4231-824f-fbd9faa4a817.html [https://perma.cc/X256-LEQ4].

In November 2014, Officer Timothy Loehmann shot and killed twelve-year-old Tamir

Rice while he was playing with a toy gun in a park. See id.; Daniel Funke & Tina Susman,

From Ferguson to Baton Rouge: Deaths of Black Men and Women at the Hands of Police,

L.A. TIMES (July 12, 2016, 3:45 PM), https://www.latimes.com/nation/la-na-police-deaths-

20160707-snap-htmlstory.html.

In September 2018, Officer Amber Guyger shot and killed Botham Jean while he was

sitting unarmed in his home. See Marina Trahan Martinez, Sarah Mervosh & John Eligon,

Ex-Officer Is Guilty of Murder in Neighbor’s Death, N.Y. TIMES, Oct. 2, 2019, at A11; see

also Perano, supra note 47.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 11

selling loose cigarettes (Eric Garner),

walking in the street when there are no

sidewalks (Michael Brown),

sleeping at home (Breonna Taylor),

and

countless other innocuous activities.

Law enforcement’s repeated murders of Black people and the machinations

police have used to cover up their excess have thoroughly undermined the

legitimacy of the criminal justice system, leaving scholars to label it the

“criminal legal process” and activists to demand abolition.

This Article

serves the public function of bridging the gap between the siloed halls of

academe and public-sector demands for systemic change that include a radical

reimagining and reconstituting of policing. Public outcry in response to police

killings of Black people demands transparency, accountability, and candor.

“The criminal law’s purpose is not simply to deter criminal activity but [also]

to impart expressive messages about what our democratic society perceives as

moral.”

As Lisa Kern Griffin argues, “[a]lthough morality is but one source

In July 2014, Officer Daniel Pantaleo strangled Eric Garner to death in New York

City. Funke & Susman, supra note 48; Perano, supra note 47.

In August 2014, just a month after Eric Garner’s murder, Officer Darren Wilson shot

and killed Michael Brown in Ferguson, Missouri, after Wilson ordered Brown to stop

walking in the street. See Funke & Susman, supra note 48; Perano, supra note 47.

In March 2020, Breonna Taylor was lying in bed when police battered down her door

and shot and killed her in her home. See Oppel Jr. et al., supra note 3.

In March 2018, Officers Jared Robinet and Terrence Mercadal fired twenty shots at

Stephon Clark, hitting him seven times, while he held a cellphone in his grandmother’s

backyard. Perano, supra note 47. In July 2016, Officer Jeronimo Yanez shot and killed

Philando Castile during a traffic stop after Castile disclosed he was legally carrying a gun

and reached for something in his car. Id. In April 2015, Officer Michael Slager shot and

killed Walter Scott in North Charleston, South Carolina, after pulling Scott’s car over.

Funke & Susman, supra note 48. The list of unarmed Black people killed by police brutality

goes on. See, e.g., Say Their Name, GONZ. UNIV. (website removed; archived at

https://perma.cc/ZV5H-7BAH on Dec. 6, 2021, 3:10 AM).

Paul Butler uses the term “criminal process” instead, to highlight the lack of justice in

the process. See PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN 11 (2017) (“The

Chokehold is ‘the system’ for black men.”); see also Jalila Jefferson-Bullock & Jelani

Jefferson Exum, That Is Enough Punishment: Situating Defunding the Police Within

Antiracist Sentencing Reform, 48 FORDHAM URB. L.J. 625, 627 (2021) (describing mass

movement responding to unjust systems); Dorothy E. Roberts, The Supreme Court 2018

Term—Foreword: Abolition Constitutionalism, 133 HARV. L. REV. 1, 6 (2019) (discussing

changes in language to reflect the reality of the carceral state).

Kate Levine, Police Suspects, 116 COLUM. L. REV. 1197, 1232 n.185 (2016) (citing

Lisa Kern Griffin, Criminal Lying, Prosecutorial Power, and Social Meaning, 97 CALIF. L.

REV. 1515, 1549 (2009)).

12 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

of the criminal law’s credibility, it functions best when it imposes requirements

perceived as just and punishes those deemed deserving.”

The deliberate failure to obtain any criminal charges or an indictment

against the white officers who killed Michael Brown, Tamir Rice, and Breonna

Taylor, all Black Youths, achieved the same task as the killings themselves—

“the vilification of [Black people], the valorization of [white police officers],

and the reassurance of white heteropatriarchal preeminence, vindication,

safety, and security.”

The existence of dual systems of process, whereby

police receive process and the Black people the police kill receive none, has

highlighted the perennial precarity of the marginalized. This grossly unequal

distribution of process will ultimately lead to its demise.

This Article has six parts. Parts I through III establish the illegality of the

search warrant for Taylor’s home. These Parts lay bare highly questionable

police conduct in both the acquisition and execution of the warrant that set

Taylor’s killing in motion. These opening Parts also examine how the Supreme

Court erected legal doctrines that led to Taylor’s death, specifically through its

refusal to apply the exclusionary rule to forced entries. The Court’s refusal

disincentivizes police from exercising essential caution. Part IV discusses the

systemic problems in policing that Taylor’s killing exposed, including lying in

search warrant affidavits, lack of judicial oversight in the warrant-issuing

process, assembly-line processing of warrants, and the fatal dangerousness of

dynamic entries, all of which are disproportionately inflicted on persons of

color. Part V examines how the spectacle of Taylor’s killing inflicted a cultural

trauma on the public, particularly marginalized communities, which demands a

public reckoning. Part VI recommends several remedies for mitigating police

excess in the acquisition and execution of search warrants.

Griffin, supra note 55, at 1549; see also Josh Bowers & Paul H. Robinson,

Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of

Legitimacy and Moral Credibility, 47 WAKE FOREST L. REV. 211, 217 (2012) (arguing “[a]

criminal law with liability and punishment rules that conflict with a community’s shared

intuitions of justice will undermine its moral credibility”).

Blanche Bong Cook, Biased and Broken Bodies of Proof: White Heteropatriarchy, the

Grand Jury Process, and Performance on Unarmed Black Flesh, 85 UMKC L. REV. 567,

568 (2017); see also Roberts, supra note 54, at 27 (describing killing Black Americans as

part of maintaining social order protected by police).

A recent Gallup poll found that 56% of white Americans have confidence in the

police; for Black Americans, the statistic is 19%. Jeffrey M. Jones, Black, White Adults’

Confidence Diverges Most on Police, GALLUP (Aug. 12, 2020),

https://news.gallup.com/poll/317114/black-white-adults-confidence-diverges-police.aspx

[https://perma.cc/6TJT-PMSK].

2022] SOMETHING ROTS IN LAW ENFORCEMENT 13

I. THE SEARCH WARRANT

Warrants obtained through intentional or reckless misrepresentations are

invalid under the Fourth Amendment.

Taylor’s killing exposed systemic

problems in law enforcement that have fueled a public outcry for answers,

explanations, transparency, reform, reparations, and a reconstitution of

policing. Even if Jaynes and Mattingly can concoct a narrative of innocence or

semantic evasion, or if a fact finder should find Jaynes’s lies to be innocent

mistakes that lacked intentionality or willfulness, Taylor’s death highlights the

callous manner in which police conduct business.

Whether Jaynes’s

statement stands or is excised, the evidence that was used to justify the

intrusion into Taylor’s home fell below constitutional requirements.

A. Background

After LMPD killed Taylor, prosecutors offered several plea agreements to

Jamarcus Glover, the actual target of the drug investigation, that were

predicated on implicating Taylor in his drug dealing.

In July 2020, the

attorneys for Taylor’s family reported that prosecutors offered Glover a plea

agreement that listed Taylor as a co-defendant.

Prosecutors responded that

the plea offer was a draft, although the Taylor family’s attorney states that this

See, e.g., Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (“[W]here the defendant

makes a substantial preliminary showing that a false statement knowingly and intentionally,

or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,

and if the allegedly false statement is necessary to the finding of probable cause, the Fourth

Amendment . . . requires that a hearing be held at the defendant’s request.”); see also

Herring v. United States, 555 U.S. 135, 142 (2009) (citing United States v. Leon, 468 U.S.

897, 922 (1984)) (“When police act under a warrant that is invalid for lack of probable

cause, the exclusionary rule does not apply if the police acted ‘in objectively reasonable

reliance’ on the subsequently invalidated search warrant.”); Leon, 468 U.S. at 923

(“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing

a warrant was misled by information in an affidavit that the affiant knew was false or would

have known was false except for his reckless disregard of the truth.”).

See 2 Officers Shot in Louisville Protests Over Breonna Taylor Charging Decision,

N.Y. TIMES (Apr. 16, 2021), https://www.nytimes.com/2020/09/23/us/breonna-taylor-

decision-verdict.html (describing nationwide protests in wake of grand jury declining to

charge police officers who shot and killed Breonna Taylor).

Janelle Griffith & Laura Strickler, Breonna Taylor’s Ex Was Offered a Plea Deal to

Say She Was Part of an ‘Organized Crime Syndicate,’ NBC NEWS (Sept. 2, 2020, 3:37 PM),

https://www.nbcnews.com/news/us-news/breonna-taylor-s-ex-was-offered-plea-deal-say-

she-n1239021 [https://perma.cc/9226-2FXQ] (noting draft plea sheets included Taylor’s

name to “implicate her in an ‘organized crime syndicate’”).

See id.

14 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

explanation is dubious.

Despite the pressure from law enforcement to claim

otherwise, Glover has consistently stated that Taylor had no dealings with

drugs.

On September 23, 2020, Kentucky Attorney General Daniel Cameron

announced that the grand jury had declined to indict the officers who shot

Taylor on any charges related to her death.

Instead, one officer was charged

with wanton endangerment for shooting bullets into a nearby apartment.

Cameron refused to appoint a special prosecutor and instead retained Taylor’s

case himself.

During his press conference, Cameron made several statements

that elicited calls for police reform (if not abolition): that the executing officers

had announced themselves before they entered Taylor’s apartment; that

Kenneth Walker, Taylor’s partner, had shot Mattingly; that Mattingly was not

involved in obtaining the warrant; and that the grand jury had found that the

officers were justified in their use of force.

B. The Affidavit

The focus of the LMPD investigation that led to Taylor’s killing involved

two men, Jamarcus Glover and Adrian Walker (not related to Kenneth Walker,

See Amina Elahi, Did Prosecutors Offer Jamarcus Glover a Plea Deal That

Incriminated Breonna Taylor?, 89.3 WFPL (Aug. 31, 2020), https://wfpl.org/did-

prosecutors-offer-jamarcus-glover-a-plea-deal-that-incriminated-breonna-taylor/

[https://perma.cc/ED7B-FJMX] (quoting Taylor family’s attorney stating prosecutor’s

“press release creates even more questions”).

See Balko, supra note 5 (“Glover has . . . publicly said that Taylor had no involvement

in his drug dealing.” (citation omitted)); Andrew Wolfson, Darcy Costello & Tessa Duvall,

Judge Concerned LMPD Detective Lied to Get Taylor Search Warrant; Records Show

Police Were Told No ‘Suspicious’ Packages Sent to Home, COURIER J. (Louisville), Oct. 2,

2020, at A6 (describing Glover’s assertion that Taylor was not involved in drug dealing).

Tobin, supra note 13; Kendall Karson, Kentucky AG Daniel Cameron Pitches

President Trump as ‘Best for This Country’ Amid Racial Strife, ABC NEWS (Aug. 28, 2020,

9:44 AM), https://abcnews.go.com/Politics/kentucky-ag-daniel-cameron-pitches-president-

trump-best/story?id=72621580 [https://perma.cc/F3XB-MWDT]; Morgan Watkins,

President Trump Calls AG Daniel Cameron a “Star” on Handling of Breonna Taylor

Decision, COURIER J. (Louisville) (Sept. 23, 2020, 8:11 PM), https://www.courier-

journal.com/story/news/local/breonna-taylor/2020/09/23/donald-trump-praises-daniel-

cameron-wake-breonna-taylor-decision/3511197001/.

Tobin, supra note 13.

See Tessa Duvall, A Council Refused to Appoint a Special Prosecutor in Breonna

Taylor Case. An Outcry Ensued, COURIER J. (Louisville) (Dec. 4, 2020, 1:17 PM),

https://www.courier-journal.com/story/news/local/breonna-taylor/2020/12/04/breonna-

taylor-kentucky-group-declines-appoint-special-prosecutor/3812184001/.

Watch Live: Kentucky AG Holds Press Conference After Breonna Taylor Grand Jury

Decision, HILL (Sept. 30, 2020, 12:57 PM), https://thehill.com/video/in-the-news/517810-

watch-live-kentucky-ag-holds-press-conference-following-breonna-taylor, transcribed in

Tobin, supra note 13.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 15

Taylor’s partner).

At one point, Taylor had dated Glover, but she had ended

their relationship before LMPD secured the search warrant.

LMPD was

investigating Glover and Walker for suspected drug dealing out of a house that

was ten miles away from Taylor’s home.

On March 12, 2020, LMPD Detective Joshua Jaynes applied for and

received a search warrant for Taylor’s residence

along with four other

warrants. The other warrants did not mention Taylor.

Because this Article

focuses on the absence of probable cause in the affidavit that supported the

search warrant for Taylor’s home, it is reproduced here in its entirety:

1.) On 01/02/2020, Affiant had LMPD tech unit place a “pole camera” at

the intersection of S. 24th Street and Elliott Avenue. Within an hour of

surveillance, Affiant witnessed approximately 15-20 vehicles go to and

from 2424 Elliott Avenue within a short period of time which is

indicative of trafficking in narcotics.

2.) On 01/2/2020, Detectives observed Adrian O. Walker,

DOB:06/02/1992, in operation of the above listed red 2017 Dodge

Charger go to and from 2424 Elliott Avenue for a short period of time.

Mr. Walker drove W/B [West Bound] on Elliott Avenue at a high rate of

speed to which a traffic stop was conducted shortly after. Detectives

could smell a strong odor of marijuana coming from the listed vehicle. A

small amount of marijuana was located inside the vehicle along with a

large undetermined amount of US currency located in the center console

of the listed vehicle.

Phillip M. Bailey, Darcy Costello & Tessa Duvall, Ex: Breonna Taylor Had No Drug

Ties; Glover Denies She Held Money for Him, COURIER J. (Louisville), Aug. 28, 2020, at

A12; Darcy Costello, Man Linked to Drug Investigation That Led Police to Breonna

Taylor’s Door Is Fatally Shot, COURIER J. (Louisville) (Nov. 20, 2020, 5:30 PM),

https://www.courier-journal.com/story/news/local/breonna-taylor/2020/11/20/breonna-

taylor-suspect-drug-investigation-led-taylor-shot/6359459002/.

See Bailey et al., supra note 69 (“Glover said in the interview Wednesday how he and

Taylor dated for about 2 ½ years before breaking up in 2018.”).

Duvall, Fact Check, supra note 3; see also Oppel Jr. et al., supra note 3 (describing a

judge’s approval of a search warrant for Taylor’s home despite the fact the alleged drug

dealing took place “far from Ms. Taylor’s home”).

Oppel Jr. et al., supra note 3.

See Tessa Duvall & Ben Tobin, Louisville Detective Who Obtained No-Knock Search

Warrant for Breonna Taylor Reassigned, COURIER J. (Louisville) (Aug. 30, 2020, 3:13 PM),

https://www.courier-journal.com/story/news/local/2020/06/10/breonna-taylor-louisville-

detective-joshua-jaynes-no-knock-warrant-reassigned/5333604002/ (implying that Taylor

was not mentioned in any of the other four warrants by explaining that “Taylor was named

on the warrant for her apartment, [but] Jamarcus Glover and Adrian Walker . . . were named

on all five warrants”).

The Elliot address was the “trap house” or drug house operated by Jamarcus Glover

and ten miles away from Taylor’s residence. See Oppel Jr. et al., supra note 3.

16 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

3.) Adrian Walker has a pending court case for COMP [Complicit]

Convicted Felon in Possession of a Firearm, Drug Paraphernalia —

Buy/Possess, ENH [Enhanced] Trafficking in Marijuana (less than 8oz)

Offense, COMP Trafficking in a Controlled Substance 1

Degree, 1

Offense (>=4GMS Cocaine) (19-F-013851).

4.) On 01/08/2020, at approximately 1336 hours, Detectives observed

Jamarcus Glover operating the above listed red 2017 Dodge Charger with

Adrian Walker as a passenger. Detectives observed on the pole camera

Jamarcus Glover exit the vehicle, walk over to the property line of 2425

and 2427 Elliott Avenue (near there is a chain- link fence that ends with

an amount of large rocks appearing to be disturbed). Jamarcus Glover is

seen on a zoomed camera dropping a large, blue cylinder-shaped object

near the rocks and then appears to be covering it up to avoid detection.

5.) Jamarcus Glover has the following pending court cases: Convicted

Felon in Possession of a Firearm, Convicted Felon in Possession of a

Handgun, Receiving Stolen Property (Firearm), Drug Paraphernalia –

Buy/Possess, Trafficking in a Controlled Substance 1

Degree, 1

Offense (<4GMS Cocaine) (20-F-000098), COMP Possession of a

Controlled Substance 1

Degree, 1

Offense (Heroin), COMP Possession

of a Controlled Substance 1

Degree, 1

Offense (Cocaine), Tampering

With Physical Evidence, COMP Trafficking in Marijuana (less than 8oz)

Offense (19-CR-001583-003), COMP Trafficking in a Controlled

Substance 1

Degree, 1

Offense (<4GMS Cocaine), COMP Tampering

With Physical Evidence (19-CR-002323).

6.) Affiant has conducted surveillance multiple times on site near the

physical location of 2424 Elliott Avenue and through the pole camera.

Affiant has witnessed on occasion subjects running from 2424 Elliott

Avenue to the rock pile near the property line of 2425 and 2427 Elliott

Avenue where Jamarcus Glover dropped the suspected narcotics and then

the subjects then run back into 2424 Elliott Avenue. Affiant believes

through my 10 years of narcotics related detective work and experience

that Jamarcus Glover and Adrian Walker are the sources of narcotics for

the “trap house” (where drugs are sold) at 2424 Elliott Avenue. When the

narcotics being dealt from 2424 Elliott Avenue are low (pedestrian and

vehicular traffic is minimal), Mr. Walker and/or Mr. J. Glover show up

operating the red 2017 Dodge Charger and appear to “re-up” the drug

house at 2424 Elliott Avenue. Mr. Walker and/or Mr. J. Glover are seen

either entering/exiting 2424 Elliott Ave. or going to drop suspected

narcotics at the rock pile near the property line of 2425 and 2427 Elliott

Avenue. Once they leave the area, normal pedestrian and vehicular traffic

resumes.

7.) Affiant has observed the listed red 2017 Dodge Charger make frequent

trips from 2424 Elliott Avenue to 3003 Springfield Drive. Both Mr.

Glover and Mr. Walker have been known to operate the listed vehicle.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 17

8.) On 01/16/2020, during the afternoon hours, Affiant witnessed

Jamarcus Glover operating the listed red 2017 Dodge Charger. Mr. J.

Glover pulled up and parked in front of 3003 Springfield Drive. Affiant

then observed Mr. J. Glover walk directly into apartment #4. After a short

period of time, Mr. J. Glover was seen exiting the apartment with a

suspected USPS package in his right hand. Mr. Glover then got into the

red 2017 Dodge Charger and drove straight to 2605 W. Muhammed Ali

Blvd. which is a known drug house.

9.) Affiant verified through a US Postal Inspector that Jamarcus Glover

has been receiving packages at 3003 Springfield Drive #4.

Affiant

knows through training and experience that it is not uncommon for drug

traffickers to receive mail packages at different locations to avoid

detection from law enforcement. Affiant believes through training and

experience, that Mr. J. Glover may be keeping narcotics and/or proceeds

from the sale of narcotics at 3003 Springfield Drive #4 for safe keeping.

10.) Affiant has observed the above listed white 2016 Chevrolet Impala

park in front of 2424 Elliott Avenue on different occasions. This vehicle

is registered to Breonna Taylor.

12.) Affiant has verified through multiple computer databases that

Breonna Taylor lives at [redacted]

13.) Affiant verified through multiple computer databases that as of

02/20/2020, Jamarcus [redacted] Drive #4 as his current home address.

14.) Mr. J. Glover and Mr. Walker are acquaintances and have been seen

going to and from 2424 Elliott Avenue. Additionally, the red 2017 Dodge

Charger has been driven by these individuals mentioned within this

affidavit. Affiant has witnessed during physical surveillance the suspected

drug traffickers sharing the red 2017 Dodge Charger numerous times to

transport and store their suspected narcotics.

C. The Affidavit Was Obtained with Intentional Misrepresentations

The search warrant that authorized an intrusion into Taylor’s home was

based on a lie. In paragraph nine of his affidavit, Jaynes swore that he had

“verified” through a United States Postal Inspector that Glover had been

receiving packages at Taylor’s home.

After Taylor was killed, the Postal

The Springfield Drive address is the home of Breonna Taylor. See Crystal Bonvillian,

Breonna Taylor: Debunking 6 Myths and Bits of Misinformation About Deadly Police

Shooting, WHIO TV (Sept. 25, 2020, 8:24 PM),

https://www.whio.com/news/trending/breonna-taylor-debunking-6-myths-bits-

misinformation-about-deadly-police-shooting/2RTM6XRS2JG55FI5RLILAS5LJM/

[https://perma.cc/HNP9-6MRU].

Affidavit for Search Warrant, supra note 8, paras. 1-14.

See id. para. 9.

18 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

Inspector refuted Jaynes’s claim.

He stated that another law enforcement

agency had asked whether Taylor was receiving suspicious packages and that

his office had confirmed that she was not.

Jaynes has admitted that he did not

speak directly to the Postal Inspector but that instead Mattingly had made an

inquiry to the Shively Police Department (“SPD”), who spoke with the Postal

Inspector, and that Mattingly had told him that Glover was receiving packages

at Taylor’s home.

Mattingly denies making this statement.

Jaynes’s lie was

no small matter. Judge Mary Shaw, who issued the search warrant, relied on

Jaynes’s affidavit to justify the invasion of Taylor’s home. Since Taylor’s

death, Judge Shaw has stated that Jaynes “may have lied” to obtain the

warrant.

D. The Affidavit Is a Product of the War on Drugs

Public outrage about increased incidences of crime during the War on Drugs

and a consensus about the face of crime and what constitutes criminality

prompted the Supreme Court to fashion doctrine that concentrated power and

discretion in the hands of the police while gradually eroding Fourth

Amendment protections, particularly the protection of the body and the

See Duvall, supra note 23.

Riley et al., supra note 20 (“Tony Gooden said a different law enforcement agency

asked his office in January to investigate whether Taylor’s home was receiving any

potentially suspicious mail. After looking into the request, he said, the local office

concluded that it wasn’t.”).

See Duvall, supra note 23 (noting Jaynes asserts he asked Mattingly to “look into

whether Glover was getting packages delivered to the apartment”); SPECIAL INVESTIGATIONS

DIV., PUB. INTEGRITY UNIT, LOUISVILLE METRO POLICE DEP’T, FILE NO. 20-019,

INVESTIGATIVE REPORT 155 (2020) [hereinafter INVESTIGATIVE REPORT], https://louisville-

police.org/DocumentCenter/View/1818/PIU-20-019-Investigative-Reports [https://perma.cc

/2DKL-5A2V] (stating that Mattingly contacted Detective Mike Kuzma of SPD, who

contacted Postal Inspector Charlie Klein “to inquire about the package history to the listed

address”).

Duvall, supra note 23.

Wolfson et al., supra note 64.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 19

home.

Courts, including the Supreme Court, have consistently lowered the

requirements of proof necessary to justify police encounters, privacy

intrusions, and the use of force.

In doing so, courts have shielded police from

Implicit bias research has quantitatively captured the nanosecond and ubiquitous

associations of Black people and criminality. As Professor Jennifer Eberhardt explains,

“[O]ne of the strongest stereotypes in American society associates blacks with criminality.”

JENNIFER L. EBERHARDT, BIASED: UNCOVERING THE HIDDEN PREJUDICE THAT SHAPES WHAT

WE SEE, THINK, AND DO 6 (2019); see also, e.g., Stephanie Holmes Didwania, Discretion

and Disparity in Federal Detention, 115 NW. U. L. REV. 1261, 1313-14 (2021) (describing

effect that implicit bias and race has on pretrial detention); Jennifer L. Eberhardt, Phillip

Atiba Goff, Valerie J. Purdie & Paul G. Davies, Seeing Black: Race, Crime, and Visual

Processing, 87 J. PERSONALITY & SOC. PSYCH. 876, 888-89 (2004) (describing study that

found “[w]hen officers were given no information other than a face and when they were

explicitly directed to make judgments of criminality, race played a significant role in how

those judgments were made”); Mary Beth Oliver, African American Men as “Criminal and

Dangerous”: Implications of Media Portrayals of Crime on the “Criminalization” of

African American Men, 7 J. AFR. AM. STUD. 3, 4 (2003) (“Research and public opinion polls

of people’s attitudes and beliefs about crime reveal that whites express greater fear of crime

when in the presence (or assumed presence) of African Americans . . . .”). Lest we are

inclined to think that associating Black people with criminality is limited to thoughts alone,

Devon Carbado meticulously establishes that during the War on Drugs the Supreme Court

used the Fourth Amendment to make African Americans more vulnerable to police

encounters that facilitate death. See Carbado, supra note 24, at 129 (“Over the past four

decades, the Supreme Court has interpreted the Fourth Amendment to enable and sometimes

expressly legalize racial profiling. . . . [T]he Court’s legalization of racial profiling exposes

African Americans not only to the violence of ongoing police surveillance and contact but

also to the violence of serious bodily injury and death.”).

See Carbado, supra note 24 at 137-38 (documenting how the Court has decided Fourth

Amendment cases so that African Americans become vulnerable to police discretion, which

accelerates encounters with police and subsequent increases in force, which can ultimately

end in death as part of doctrinal design); see also Frank Edwards, Hedwig Lee & Michael

Esposito, Risk of Being Killed by Police Use of Force in the United States by Age, Race-

Ethnicity, and Sex, 116

PROC. NAT’L ACAD. SCIS. 16793, 16793-98 (2019) (presenting study

results regarding the connection between police use of force and different social groups);

Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. REV. 1182, 1193-212

(2017) (describing characteristics of what makes seizures reasonable).

20 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

accountability and facilitated policing cultures of recklessness that have led to

death, destruction, and injury.

The “central value of the Fourth Amendment” shields homes from

unreasonable searches and seizures.

During the War on Drugs, however, the

Supreme Court scaled back Fourth Amendment protections in the interest of

See Carbado, supra note 24, at 127 (“This ‘front-end’ police contact—which Fourth

Amendment law enables—is often that predicate to ‘back end’ police violence . . . .”); see

also Edwards et al., supra note 84, at 16793-98; Ristroph, supra note 84, at 1188. “Michel

Foucault described the evolution of punishment in the Western world away from torture to

the modern prison.” BUTLER, supra note 54, 107. See generally MICHEL FOUCAULT,

DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (1979) (discussing torture in Part One,

punishment in Part Two, and discipline, including carceral discipline, in Part Three).

Foucault argued that torture, which I discuss as “spectacle,” see infra Section V.B, “blurred

the line between investigation and punishment.” BUTLER, supra note 54, at 107. Angela Y.

Davis makes a similar argument stating, “[Practices of torture] emanate from techniques of

punishment deeply embedded in the history of the institution of prison.” ANGELA Y. DAVIS,

ABOLITION DEMOCRACY: BEYOND EMPIRE, PRISONS, AND TORTURE 49 (2005); see also

Carbado, supra note 24, at 128 (“Davis’s point about torture killings applies to police

killings. By and large, Americans tend to think of police killings of African Americans as

aberrant and extraordinary, failing to see their connections to the routine, to the everyday,

and to the ordinary.”). By way of example, take the class case of Illinois v. Wardlow, where

the Supreme Court held that headlong flight in areas of high crime constituted reasonable

suspicion and contributed to a justification for a stop and frisk. 528 U.S. 119, 124-26 (2000).

I have argued that Wardlow is an example of how the Court makes “high crime areas,”

which translates to areas occupied by Black people, legible (a kind of branding) for

increased police surveillance and therefore state-sanctioned control. See Cook, supra note

57, at 610-11 n.199.

Georgia v. Randolph, 547 U.S. 103, 115 (2006); see also Kyllo v. United States, 533

U.S. 27, 40 (2001) (noting that “the Fourth Amendment draws ‘a firm line at the entrance to

the house’” (quoting Payton v. New York, 445 U.S. 573, 590 (1980))); Wilson v. Layne,

526 U.S. 603, 610 (1999) (“Our decisions have applied these basic principles of the Fourth

Amendment to situations, like the one in this case, in which police enter a home under the

authority of an arrest warrant in order to take into custody the suspect named in the

warrant.”); United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972)

(“[P]hysical entry of the home is the chief evil against which the wording of the Fourth

Amendment is directed . . . .”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 21

concentrating power and discretion in the hands of law enforcement.

The

courts have sacrificed accuracy, safety, and a fairer distribution of process for

more streamlined and efficient criminal administrative practices.

During the

decades of the War on Drugs, the Supreme Court has given law enforcement

the weapons necessary to declare war on certain communities, namely areas

demarcated or branded as “high crime areas,” where the “characteristics” of a

neighborhood continued the long historical treatment of making the bodies

inside those places vulnerable to and legible for detection, surveillance,

policing, and control.

This form of disciplining and policing empowered law

enforcement to inflict humiliation on vulnerable bodies as a form of taming

and racialized social control that feeds back as “law and order.”

II. INSUFFICIENCY OF THE AFFIDAVIT

LMPD will never file criminal charges against Breonna Taylor for two

reasons: (1) It did not find evidence to justify charges against her, and

(2) LMPD killed her. As a result, there will not be a suppression hearing to

challenge the validity of the search warrant. Nevertheless, Taylor’s death

demands a public vetting of the warrant and the manner of its execution. This

Part explores the constitutional validity of the warrant to expose problematic

police conduct in the warrant application process. Because Jaynes provided

material falsities in his affidavit and because the affidavit provided less than

probable cause, he set in motion an unconstitutional search that ultimately led

to Taylor’s death.

See Ristroph, supra note 84, at 1191 (arguing that “Fourth Amendment suspicion

standards have been adopted, and lowered, with open acknowledgment of the burdens these

standards will impose on persons of color”); see also Utah v. Strieff, 136 S. Ct. 2056, 2064

(2016) (limiting scope of the Fourth Amendment’s exclusionary rule); Herring v. United

States, 555 U.S. 135, 147-48 (2009) (holding that good-faith exception applies where an

officer makes arrest based on incorrect warrant information); Whren v. United States, 517

U.S. 806, 813 (1996) (ignoring racial profiling by holding that “[s]ubjective intentions” that

may be racially discriminatory “play no role in ordinary, probable-cause Fourth Amendment

analysis”); Tennessee v. Garner, 471 U.S. 1, 9-20 (1985) (justifying use of force based on

officer perceptions); Terry v. Ohio, 392 U.S. 1, 27 (1968) (lowering standard that would

justify police encounters to reasonable suspicion); BUTLER, supra note 54, at 57 (“In a series

of cases, the conservatives on the Court have given the police unprecedented power, with

everybody understanding that these powers will mainly be used against African Americans

and Latinos.”); Carbado, supra note 24, at 129 (“[T]he legalization of racial profiling

facilitates the precarious line between stopping black people and killing black people.”).

See Strieff, 136 S. Ct. at 2068-71 (Sotomayor, J., dissenting) (discussing police

officers’ lack of incentive to comply with the Fourth Amendment and distribute encounters

equally).

See, e.g., Wardlow, 528 U.S. at 124-25.

See BUTLER, supra note 54, at 17-18; see also Roberts, supra note 54, at 18 (“Torture

has been accepted as a technique of racialized carceral control.”).

22 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

A. It Would Not Survive a Franks Hearing

In Franks v. Delaware,

the United States Supreme Court established the

following test to determine whether a defendant would receive a hearing in

support of a claim that the affidavit supporting a search warrant contained

material misrepresentations:

There is, of course, a presumption of validity with respect to the affidavit

supporting the search warrant. To mandate an evidentiary hearing, the

challenger’s attack must be more than conclusory and must be supported

by more than a mere desire to cross-examine. There must be allegations

of deliberate falsehood or of reckless disregard for the truth, and those

allegations must be accompanied by an offer of proof. They should point

out specifically the portion of the warrant affidavit that is claimed to be

false; and they should be accompanied by a statement of supporting

reasons. Affidavits or sworn or otherwise reliable statements of witnesses

should be furnished, or their absence satisfactorily explained. Allegations

of negligence or innocent mistake are insufficient. The deliberate falsity

or reckless disregard whose impeachment is permitted today is only that

of the affiant, not of any nongovernmental informant. Finally, if these

requirements are met, and if, when material that is the subject of the

alleged falsity or reckless disregard is set to one side, there remains

sufficient content in the warrant affidavit to support a finding of probable

cause, no hearing is required. On the other hand, if the remaining content

is insufficient, the defendant is entitled, under the Fourth and Fourteenth

Amendments, to his hearing.

The standard of proof in a Franks proceeding is a preponderance of the

evidence.

The challenging party must prove both that the contested

statements are in fact false and that their inclusion in the affidavit amounted to

perjury or reckless disregard for the truth.

The prosecution may, however,

counter with facts outside the affidavit that tend to prove the truthfulness of the

facts contained in the affidavit.

When the Franks defect involves statements

in an affidavit that demonstrate reckless disregard for the truth or information

438 U.S. 154 (1978).

Id. at 171-72 (footnote omitted).

Id. at 155-56. The same preponderance of the evidence standard applies in Kentucky.

Gibson v. Commonwealth, No. 2014-SC-000158-MR, 2015 WL 9243583, at *2-3 (Ky. Dec.

17, 2015) (confirming Franks test applies in Kentucky).

See Commonwealth v. Smith, 898 S.W.2d 496, 503 (Ky. Ct. App. 1995) (interpreting

Franks decision).

2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT

§ 4.4(d) (6th ed.), Westlaw (database updated Sept. 2020).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 23

that the affiant knows to be false, that information must be excised and the

affidavit must be judged based on the remaining information.

In the Taylor case, the affiant and the misrepresentation in the affidavit did

not involve a third party, a confidential informant, a “snitch,” or a private

citizen. The affiant was a sworn law enforcement officer, a veteran with “10

years of narcotics related detective” experience.

Moreover, Jaynes stated that

the misrepresentation he used to form the basis of probable cause was from a

federal officer, a United States Postal Inspector.

It is critical to read each sentence and paragraph of Jaynes’s affidavit in its

full context.

Jaynes’s misrepresentation occurs in paragraph nine of his

affidavit, where he attempted to convince the magistrate that there was

probable cause to believe that illegal narcotics were in Taylor’s home.

100

specifically, Jaynes alleged that the criminal conduct (drug dealing) was

ongoing.

101

In this paragraph, Jaynes sought to persuade the magistrate that

Glover was receiving drugs through the mail at Taylor’s home.

102

Drug

traffickers regularly have drug packages delivered to third parties because they

believe that the third party has not attracted the attention of surveilling

police.

103

In paragraph nine, Jaynes made two false statements: (1) that he had

“verified through a US Postal Inspector” and (2) that Glover had been

receiving packages at Taylor’s apartment.

104

But “Jaynes later admitted to

LMPD investigators that neither he nor another LMPD officer verified that

directly with a postal inspector.”

105

In terminating Jaynes, LMPD Chief Yvette

See, e.g., Franks, 438 U.S. at 156; Hayes v. Commonwealth, 320 S.W.3d 93, 101 (Ky.

2010). Although the Kentucky remedy for a Franks violation is excision, other states require

more robust and rigorous correctives. For example, the California Supreme Court has held

that under the California Constitution, where a defendant demonstrates that an affiant has

made deliberate and intentional false statements, regardless of materiality to the finding of

probable cause, the defendant is entitled to have the warrant quashed and any evidence

seized pursuant thereto suppressed. People v. Cook, 583 P.2d 130, 141 (Cal. 1978).

Affidavit for Search Warrant, supra note 8, para. 6.

Id. para. 9.

Search warrant affidavits are to be judged on the totality of the circumstances, not line-

by-line scrutiny. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (“The task of the issuing

magistrate is simply to make a practical, common-sense decision . . . given all the

circumstances set forth in the affidavit . . . .”); see also United States v. Woosley, 361 F.3d

924, 926 (6th Cir. 2004) (“[P]robable cause determinations must be based on the totality of

the circumstances . . . .”).

100

Affidavit for Search Warrant, supra note 8, para. 9.

101

Id.

102

Id.

103

Id.

104

Id.; Duvall & Tobin, supra note 73.

105

Eleanor Klibanoff & Graham Ambrose, LMPD Investigative File Sheds Light on

Breonna Taylor Warrant, WFPL (Oct. 7, 2020), https://wfpl.org/kycir-lmpd-investigative-

documents-shed-light-on-warrant-that-left-breonna-taylor-dead/ [https://perma.cc/Q8AD-

VWTP].

24 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

Gentry stated that Jaynes had “‘failed to inform the judge that [he] had no

contact with the’ [P]ostal [I]nspector.”

106

Gentry added, “Your sworn

information was not only inaccurate, it was not truthful.”

107

After hearing

Jaynes’s testimony, assessing his demeanor, and judging his credibility, the

LMPD Review Board upheld his termination for lying in the affidavit.

108

Jaynes’s lack of candor exemplifies how police can undermine the search

warrant application process. When a magistrate receives an affidavit, they have

few checks on the affiant’s veracity or the truth of the underlying evidence.

109

The process of obtaining a warrant from a magistrate is not open to public

scrutiny.

110

It does not take place in an adversarial setting where an adversary

tests the truth of the underlying evidence.

111

Instead, it is strictly a private

affair; only the judge, the affiant, and possibly a prosecutor are present. The

targeted suspects are not entitled to be present and are not given notice. As a

result, veracity in search warrants is of singular importance.

112

Jaynes’s

representation that he had “verified” information was intended to assure the

magistrate of the accuracy of his underlying claim that he had personally

verified with the Postal Inspector that Glover had packages that contained

drugs delivered to Taylor’s home.

113

Jaynes’s knowledge that he had not

verified anything with the Postal Inspector makes it impossible for him to

claim truthfully that his statement was a negligent oversight.

114

His falsehood

about that issue can only be attributed to intentionality or recklessness. The

affidavit uses the noun “[a]ffiant” (himself), not the name of a second or third

party, as the actor who “verified through a US Postal Inspector that Jamarcus

Glover has been receiving packages” at Taylor’s address.

115

106

David K. Li, 2 Louisville Police Officers Fired Over Roles in Fatal Shooting of

Breonna Taylor, NBC NEWS (Jan. 6, 2021, 6:14 PM), https://www.nbcnews.com/news/us-

news/2-louisville-police-officers-fired-over-roles-fatal-shooting-breonna-n1252751

[https://perma.cc/W9E6-5NYS].

107

Id.

108

Jason Riley, Louisville Police Merit Board Upholds Firing of Joshua Jaynes for

Lying in Breonna Taylor Warrant, WDRB (July 1, 2021), https://www.wdrb.com/in-

depth/louisville-police-merit-board-upholds-firing-of-joshua-jaynes-for-lying-in-breonna-

taylor-warrant/article_bdbfd56c-d9bf-11eb-94d3-9b8851d7acab.html

[https://perma.cc/6LBR-9A53].

109

See LAFAVE, supra note 95, § 4.4(a) (“[T]he warrant is issued in an ex parte hearing

where the magistrate’s only check on the affiant’s veracity is a search for internal

inconsistency in his statement.” (quoting Steven M. Kipperman, Inaccurate Search Warrant

Affidavits as a Ground for Suppressing Evidence, 84 HARV. L. REV. 825, 835 (1971))).

110

See id. (describing ex parte nature of warrant hearings).

111

Id.

112

Id.

113

Affidavit for Search Warrant, supra note 8, para. 9.

114

Cf. Franks v. Delaware, 438 U.S. 154, 171 (1978) (discussing how “negligence or

innocent mistake are insufficient” in establishing falsity of affidavit).

115

Affidavit for Search Warrant, supra note 8, para. 9.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 25

Jaynes’s falsities inject a new element into the analysis, the doctrine that a

witness’s knowingly false statement in one part of his testimony undermines

the whole. This principle is encapsulated in the common law maxim “falsus in

uno, falsus in omnibus.”

116

Jaynes’s misrepresentation about his “verification”

undermines his credibility in the remainder of the affidavit.

Jaynes’s second misrepresentation—that Glover was receiving packages at

Taylor’s residence—has far graver consequences. LMPD’s internal

investigation concluded that Jaynes’s affidavit lacked truth, was misleading,

and should be reviewed for criminal actions.

117

This is not a case where an

affiant has acted reasonably under the circumstances—for example, where the

affiant receives information from a third-party cooperator who provides a

misrepresentation without the officer’s knowledge.

118

In Taylor’s case, an

officer from another police department, Detective Mike Kuzma of SPD, told

Mattingly that “there was no parcel history at the location.”

119

Kuzma relayed

to his colleague, Timothy Salyer, that he (Kuzma) had told Mattingly no

packages had been delivered to Taylor’s residence.

120

Both United States

Postal Inspector Charlie Klein and Kuzma clearly stated that no packages had

been delivered to Taylor.

121

Each man also clearly communicated that exact

information to the next person in the series, e.g., Klein to Kuzma, then Kuzma

to Mattingly.

122

Both Klein and Kuzma stated that they could not make any

representations about packages delivered to Taylor’s home.

123

The available evidence demonstrates that there is a highly material issue of

fact between Jaynes’s claim that Mattingly had told him “that Glover was

receiving Amazon and mail packages” at Taylor’s address

124

and Mattingly’s

flat denial that he had done so.

125

Unfortunately, we will never know the facts

as they would have been reported to an investigating officer immediately after

116

See Sebree v. Rogers, 102 S.W. 841, 842 (Ky. 1907) (“[I]f a witness is impeached in

one particular, it is then within the province of the trial court (or jury) to disregard his

testimony on that account on other points.”); see also, e.g., Florez v. Groom Dev. Co., 348

P.2d 200, 205 (Cal. 1959); Nelson v. Black 275 P.2d 473, 473 (Cal. 1954); In re Estate of

Friedman, 172 P. 140, 143 (Cal. 1918); People v. Soto, 59 Cal. 367, 369-70 (1881). One

court argued that “[n]o reason appears why it should not apply to sworn statements in an

affidavit for a warrant and as well as in trial testimony.” People v. Cook, 583 P.2d 130, 140

(Cal. 1978).

117

INVESTIGATIVE REPORT, supra note 80, at 229.

118

LAFAVE, supra note 95, § 4.4(b).

119

INVESTIGATIVE REPORT, supra note 80, at 152.

120

Id. at 154.

121

Id.

122

Id. at 152, 154.

123

Id. at 153 (“He also stated he could not say if the address received packages . . . .”).

124

Id. at 149.

125

See Ashley, supra note 22 (quoting Mattingly’s attorney as saying that Mattingly

“never advised Officer Jaynes that packages for Jamarcus Glover had been delivered at

Breonna Taylor’s apartment”).

26 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

Taylor was gunned down. By the time these questions were asked, both Jaynes

and Mattingly had substantial time to consult with counsel, coordinate their

stories with other officers and with the evidence, and concoct narratives of

innocence and semantic evasion to explain the discrepancies.

126

In addition to these structural impediments to the truth-seeking function,

several problems remain with Jaynes’s misrepresentations. First, several pieces

of evidence confirm the falsity of his claims. Both Kuzma and Salyer have

stated that there was no package history at Taylor’s home and that they clearly

conveyed that information to Mattingly.

127

Mattingly later confirmed with

Kuzma and Salyer that he relayed the information to Jaynes.

128

Second, after

LMPD killed Taylor, Jaynes engaged in conduct indicative of deceit. On April

10, 2020, when Jaynes understood that it was time to cover his tracks, he

texted the following message to Salyer from an unknown number: “Hey

brother, it’s Josh Jaynes, your neighbor at LMPD Narc. Seeing if you or

Kuzma could look at an individual or address to see if a guy was getting

mail.”

129

Salyer replied that the address had not received packages in months

and that the Postal Inspector would be notified if any new packages were

delivered.

130

Salyer also told Jaynes that the postal carrier was the only person

who would know if Glover had received mail at Taylor’s home.

131

Kuzma told

Jaynes that a parcel history for a specific address does not indicate who sent

the parcel and that, in any case, there was no parcel history at Taylor’s

home.

132

When Jaynes was confronted about the texts he sent after Taylor’s

death to cover his tracks, he said that he had asked Mattingly to confirm what

he had told him months earlier, before he obtained the warrant, and that he had

reached out to Salyer directly because Mattingly could not remember.

133

126

See id. (noting Mattingly’s denial in October, seven months after Taylor’s death).

127

INVESTIGATIVE REPORT, supra note 80, at 152, 154.

128

Id. at 152 (reporting Kuzma claims that “Mattingly told . . . Detective Jaynes there

was no parcel history to the address”); id. at 155 (reporting Salyer claims that “Mattingly

stated he told Detective Jaynes there was no package history at the address”).

129

Klibanoff & Ambrose, supra note 105.

130

INVESTIGATIVE REPORT, supra note 80, at 154-55.

131

Id. at 155.

132

Id. at 153.

133

Klibanoff & Ambrose, supra note 105. In remarking on Jaynes’s behavior and the

victim-blaming investigation tactics by LMPD after they killed Taylor, Attorney Lonita

Baker, who represented the Taylor family and is a former state prosecutor, stated that

LMPD’s Public Integrity Unit attempted to justify the actions of LMPD officers on the night

of the raid instead of investigating them:

2022] SOMETHING ROTS IN LAW ENFORCEMENT 27

that point, Jaynes knew that both Salyer and Kuzma could testify against the

information he provided in the warrant. Jaynes’s knowledge that his statements

were false also explains why he sought to evade detection by using an

unknown number from a new, potentially untraceable phone, when he

contacted Salyer.

134

LMPD’s internal investigation concluded that Jaynes misled the

magistrate.

135

LMPD found that Mattingly told Jaynes that “Glover was NOT

receiving suspicious packages” at Taylor’s residence.

136

Moreover, LMPD

“learned throughout the investigation [that] the inspector’s office was only

asked to check for parcels that were flagged as suspicious[,] not for any other

type of parcel.”

137

Thus, Jaynes’s statement that he had “verified through a US

Postal Inspector that Jamarcus Glover has been receiving packages at 3003

Springfield Drive #4” does not align with any of the evidence.

138

LMPD’s

internal investigation concluded that “the affidavit is misleading” and “should

be reviewed for criminal actions.”

139

Jaynes not only made an affirmative misrepresentation; he also sought to

mislead the magistrate by failing to tell her that Taylor had no package history

and by depriving her of dispositive information necessary for a probable cause

determination. If Jaynes had written “no suspicious packages” in the search

warrant, there would have been no search warrant. This material omission is

more than a failure to inform: It is a deliberate (or at least reckless) attempt to

mislead.

140

In United States v. Jacobs,

141

the Eighth Circuit recognized that the

affiant had an affirmative duty to inform the magistrate of information that

“It’s disturbing that anyone would attempt to justify that a warrant premised on lies

is justified,” Baker said. “Det. Jaynes knows, just as anyone with any criminal law

experience knows, that observing someone at a location and nothing further does not

constitute probable cause. It’s even more absurd that Jaynes would ask people to

believe he was still investigating the Springfield address as a connection to Glover over

two months after Breonna’s murder since it was still closed off for investigative

purposes. That follow-up call was nothing more than an attempt to cover-up his own

criminal action of perjury, which led to the murder of Breonna Taylor.”

Phylicia Ashley, Joshua Jaynes: Detective’s Attorney Acknowledges Breonna Taylor Search

Warrant Was ‘Inaccurate,’ FOX19 NOW (Oct. 15, 2020, 6:05 PM),

https://www.fox19.com/2020/10/16/joshua-jaynes-detectives-attorney-acknowledges-

breonna-taylor-search-warrant-was-inaccurate/.

134

See Klibanoff & Ambrose, supra note 105 (recounting Salyer’s receipt of a text from

Jaynes from an unknown number).

135

INVESTIGATIVE REPORT, supra note 80, at 229.

136

Id.

137

Id.

138

Affidavit for Search Warrant, supra note 8, para. 9.

139

INVESTIGATIVE REPORT, supra note 80, at 229.

140

See United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir. 1993) (applying doctrine

against false statements in affidavits for search warrants “to cover material that has been

deliberately or recklessly omitted”).

141

986 F.2d 1231 (8th Cir. 1993).

28 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

undermined the sufficiency of the probable cause determination when the

omission of such information would be deliberate or reckless.

142

In Jacobs, the

affiant informed the magistrate that a drug-sniffing dog (“K9”) had shown

interest in a suspected narcotics package but failed to state that a second K9

had not alerted to the same package.

143

The Eighth Circuit found that the

officer omitted the information with the intent to mislead or with reckless

disregard for the truth.

144

The court noted that “the failure to include the

information and a reckless disregard for its consequences may be inferred from

the fact that the information was omitted.”

145

It concluded that “[a]ny

reasonable person would have known that this was the kind of thing the judge

would wish to know.”

146

In Taylor’s case, the failure to inform the magistrate that there were no

suspicious packages enticed the magistrate to infer that Taylor was receiving

narcotics through the mail for Glover and that this activity was ongoing. Had

Jaynes written the affidavit to accurately state the facts before him, it would

have read something like: “Glover was seen taking a package out of Taylor’s

home, placing it in his car, and then going into a known ‘trap house’ without

142

See id. at 1235; see also Bailey v. City of Howell, 643 F. App’x 589, 597 (6th Cir.

2016) (citing Jacobs, 986 F.2d at 1235) (stating reckless omission may be inferred upon

defendant’s showing that omitted material would clearly go against finding probable cause);

United States v. Davis, 226 F.3d 346, 351 (5th Cir. 2000) (noting that factual

misrepresentations or omissions in the affidavit must be dispositive, meaning that without

falsehood or omission there would not be probable cause); United States v. Tomblin, 46

F.3d 1369, 1377 (5th Cir. 1995) (citing United States v. Stanert, 762 F.2d 775, 780 (9th Cir.

1985)) (noting that the Fifth Circuit extended the Franks exception to omissions in the

affidavit); United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986) (holding that search

warrant would be defective if police misled judge by intentionally or recklessly omitting

facts that, were they included, would have led the judge not to find probable cause); United

States v. Bogen, No. 2:16-cr-00040, 2017 WL 497756, at *4 (E.D. La. Feb. 7, 2017)

(acknowledging an exception to the good-faith exception where a search warrant affiant

gives knowingly or recklessly false information); Gerth v. State, 51 N.E.3d 368, 374 (Ind.

Ct. App. 2016) (finding that “[a] probable cause affidavit must include all ‘material facts’

known to law enforcement, which includes facts that ‘cast doubt on the existence of

probable cause’” (quoting Ware v. State, 859 N.E.2d 708, 718 (Ind. Ct. App. 2007))); State

v. Alexander, 784 N.E.2d 1225, 1235 (Ohio Ct. App. 2003) (“The omission of material

information is viewed in the same light as the inclusion of false information, so that the

failure to inform the court that a drug-sniffing dog failed to alert on an item constitutes

misleading information as prohibited by Franks.”).

143

Jacobs, 986 F.2d at 1233.

144

Id. at 1234-35 (citing Reivich, 793 F.2d at 961; United States v. Lueth, 807 F.2d 719,

726 (8th Cir. 1986)).

145

Id. at 1235 (citing Reivich, 793 F.2d at 961).

146

Id.; see also United States v. Davis, 430 F.3d 345, 358 (6th Cir. 2005) (evaluating the

sufficiency of a search warrant affidavit by considering “a material fact omitted from the

affidavit by the affiant”); Commonwealth v. Smith, 898 S.W.2d 496, 504 (Ky. Ct. App.

1995) (finding omission of information to be at least “reckless disregard of whether the

affidavit was made misleading” by the omission).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 29

the package. According to the Postal Inspector, no suspicious packages were

delivered to Taylor’s home.”

147

Such an application on its face would not

support a finding of probable cause. Jaynes’s claim that Mattingly told him that

Glover was receiving Amazon packages and mail packages at Taylor’s address

does not hold up.

148

LMPD’s own investigation says as much.

149

There would

be so little corroborative weight to the evidence remaining in the affidavit,

after the misrepresentations were removed, that a Franks hearing would have

clearly been warranted.

B. It Did Not Meet the Standard of Probable Cause

Even if Jaynes’s affidavit were to survive a Franks challenge and the

perjured testimony were not excised, the affidavit lacks the necessary evidence

an issuing magistrate would need to determine that illegal narcotics were in

Taylor’s home. The information Jaynes gave does not amount to probable

cause: Taylor’s car (with no identified occupants) traveled between Taylor’s

home and a “trap house” (with no associated date); the car (with no identified

occupants) was observed outside the trap house (with no associated date);

Glover came out of Taylor’s home, allegedly with a package from USPS

(which we know is not true) and went to the trap house (with no further

mention of the package); and Glover used Taylor’s address as his own (with no

specific information about the source of the evidence).

150

The paltry evidence

in Jaynes’s affidavit simply did not rise to the standard needed to establish

probable cause to invade Taylor’s sanctuary.

The “chief evil” the Fourth Amendment deters is the physical invasion of

the home.

151

The Fourth Amendment states that a search warrant may be issued

only upon a showing of probable cause.

152

Indeed, “the right of a [citizen] to

retreat into [one’s] home and there be free from unreasonable governmental

147

See supra text accompanying notes 104-34.

148

See INVESTIGATIVE REPORT, supra note 80, at 149.

149

See supra text accompanying notes 136-39.

150

See Affidavit for Search Warrant, supra note 8, paras. 6-10.

151

United States v. U.S. District Court (Keith), 407 U.S. 297, 313 (1972) (“[P]hysical

entry of the home is the chief evil against which the wording of the Fourth Amendment is

directed . . . .”); see Payton v. New York, 445 U.S. 573, 576, 585 (1980) (quoting Keith, 407

U.S. at 313) (holding that the Fourth Amendment “prohibits [state] police from making a

warrantless and nonconsensual entry into a suspect’s home . . . to make a routine felony

arrest”); Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir. 2003) (quoting Payton,

445 U.S. at 585) (reiterating home invasion’s status as the Fourth Amendment’s “chief

evil”).

152

U.S. CONST. amend. IV (“[N]o Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.”); see also KY. CONST. § 10 (“[N]o warrant shall issue to

search any place, or seize any person or thing, without describing them as nearly as may be,

nor without probable cause supported by oath or affirmation.”).

30 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

intrusion” is the core of the Amendment.

153

Central to the requirement of

probable cause is a preoccupation with protecting citizens from the whims of

police

154

The requirement of probable cause has roots that are deep in our

history. The general warrant, in which the name of the person to be

arrested was left blank, and the writs of assistance, against which James

Otis inveighed, both perpetuated the oppressive practice of allowing the

police to arrest and search on suspicion. Police control took the place of

judicial control, since no showing of “probable cause” before a magistrate

was required. The Virginia Declaration of Rights, adopted June 12, 1776,

rebelled against that practice . . . .

. . . .

That philosophy later was reflected in the Fourth Amendment. And as

the early American decisions both before and immediately after its

adoption show, common rumor or report, suspicion, or even “strong

reason to suspect” was not adequate to support a warrant for arrest. And

that principle has survived to this day. . . . It was against this background

that two scholars recently wrote, “Arrest on mere suspicion collides

violently with the basic human right of liberty.”

155

Probable cause is fundamental to search warrant protections. It is intended

to guarantee a substantial probability that a home invasion is justified by the

discovery of evidence. “Probable cause exists when there is a ‘fair

153

Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States,

365 U.S. 505, 511 (1961)).

154

LAFAVE, supra note 95, § 3.1.

155

Henry v. United States, 361 U.S. 98, 100-01 (1959) (footnotes and citations omitted)

(first quoting Conner v. Commonwealth, 3 Binn. 38, 39 (Pa. 1810); and then quoting James

E. Hogan & Joseph M. Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47

GEO. L.J. 1, 22 (1958)). In Illinois v. Gates, the Court defined probable cause as “a fluid

concept—turning on the assessment of probabilities in particular factual contexts—not

readily, or even usefully, reduced to a neat set of legal rules.” 462 U.S. 213, 232 (1983). The

Court has never provided clear guidance about how much evidence constitutes probable

cause (e.g., 30%, 60%, 80%). See id. at 235 (declining to “fix some general, numerically

precise degree of certainty corresponding to ‘probable cause’ [because it] may not be

helpful”). Some courts have said that probable cause is more than a mere hunch but less

than proof beyond a reasonable doubt. See, e.g., Whitaker v. Estelle, 509 F.2d 194, 196 (5th

Cir. 1975) (defining probable cause to require “sufficient facts to support a genuine

probability, though not necessarily a certainty or a conclusion beyond a reasonable doubt,”

not just “a hunch or mere speculation”). Unfortunately, this has limited usefulness because a

mere hunch may not be much more than zero and proof beyond a reasonable doubt is much

closer to 100%. Probable cause is less than a preponderance of the evidence. See United

States v. Juwa, 508 F.3d 694, 701 (2d Cir. 2007) (“[P]robable cause is a lower standard than

preponderance of the evidence; it ‘requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.’” (quoting United States v.

Bakhtiari, 913 F.2d 1053, 1062 (2d Cir. 1990))).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 31

probability’ . . . that contraband or evidence of a crime will be found in a

particular place.”

156

In sum, a magistrate needs “reasonable grounds for belief”

that evidence will be found in order to justify the issuance of a search

warrant.

157

When an affidavit is the basis for a probable cause determination,

the “affidavit must provide the magistrate with a substantial basis for

determining the existence of probable cause . . . .”

158

Search warrant affidavits

are to be judged on the totality of the circumstances, not on the basis of line-

by-line scrutiny.

159

In Taylor’s case, there may have been enough evidence to establish that

Glover was a drug dealer, but there was no evidence that Taylor was a drug

dealer and insufficient evidence to support the possibility that drugs were in

her home. The meager evidence Jaynes provided to support his claim that

Glover was a drug dealer was not enough to support a search of Glover’s

home, let alone Taylor’s. The Fourth Amendment does not allow an inference

that drugs are in a location simply because a drug dealer frequents the location,

lives there, or receives mail there.

160

Moreover, the probable cause in the other

warrants presented to the magistrate cannot be read into the search warrant for

Taylor’s home. The probable cause determination for Jaynes’s affidavit is

limited to the four corners of the affidavit.

161

During his interview with LMPD’s Public Integrity Unit (“PIU”), Jaynes

declared that he targeted Taylor’s home because, “[t]his group of people, it is

straight cashflow for them . . . . [T]hey get other people involved and it’s

usually females. It’s usually baby mamas . . . or it’s girlfriends that they can

trust. They can trust them with their money and their stuff.”

162

Jaynes’s

statement reflects a culture of disregard for humanity, a disregard for the rule

156

United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991) (quoting United States

v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985) (per curiam)).

157

United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990).

158

See Gates, 462 U.S. at 239.

159

Id. at 245 n.14; see also United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004).

160

As an example of the quantum of evidence necessary to secure a search warrant for a

package, consider United States v. Bogen, No. 2:16-cr-00040, 2017 WL 497756, at *5 (E.D.

La. Feb. 7, 2017), where the successful affidavits stated that “the packages were mailed with

Express Mail, that drug dealers frequently use Express Mail, that the packages were sent

from a fictitious address to an address with fictitious recipients, the signature requirement

was waived, and that drug-detecting dogs who were trained to alert to drugs alerted to the

presence of drugs in the packages.” See also United States v. Daniel, 982 F.2d 146, 151-52

(5th Cir. 1993) (finding that an affidavit that explained why a package was suspicious by

pointing to its suspicious source city and the alert of a trained drug-detecting dog “clearly

constitutes a substantial basis for issuing a warrant”); State v. Thein, 977 P.2d 582, 584,

588-89 (Wash. 1999) (holding “a reasonable nexus is not established as a matter of law”

when warrant was issued for drug dealer’s home with almost no evidence relating drug

dealing activities to residence).

161

See United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006) (citing United States v.

Frazier, 423 F.3d 526, 531 (6th Cir. 2005)).

162

Interview with Josh Jaynes, supra note 2, at 387-88.

32 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

of law, and the exemplification of the politics of disgust.

163

Jaynes’s “baby

mamas” arguments are an ideological justification for murder and have no

place in law. His statements further reflect that neither facts nor evidence are

driving the train in the affidavit, but rather, vicious and demeaning stereotypes

about how “these people” behave. Simply, his affidavit lacked any evidence

that connected Taylor to drug trafficking

164

While Jaynes may argue that the issuing magistrate is entitled to draw

reasonable inferences that evidence is likely to be kept where drug dealers

live,

165

the Sixth Circuit has specifically rejected that argument where there is

insufficient evidence that the suspect is actually a drug dealer.

166

In United

States v. McPhearson,

167

the defendant was not a known drug dealer.

168

“[H]is

prior convictions were for property crimes, and the warrant on which the police

163

Ange-Marie Hancock, coined the term “the politics of disgust” to unpack interlocking

systems of race, gender, and class oppression that materialize as stereotypes about Black

women. These stereotypes undergird disciplinary and punitive measures that further justify

intrusions into Black women’s intimate spaces, particularly the home. ANGE-MARIE

HANCOCK, THE POLITICS OF DISGUST: THE PUBLIC IDENTITY OF THE WELFARE QUEEN 3

(2004); see also Ange-Marie Hancock, Contemporary Welfare Reform and the Public

Identity of the “Welfare Queen,” 10 RACE GENDER & CLASS 31, 36-38 (2003) (discussing

the intersectional harm caused by use of oxymoron “welfare queen”). Citing Hancock,

Priscilla Ocen argues that the politics of disgust is a form of hatred and ideological

justification for police excess. It is indicative of police culture’s pathologizing Black

women, which animates the lack of security and privacy that Black women have in their

homes. UC Berkeley Sch. of L., Professors Devon Carbado and Priscilla Ocen: Police

Violence and Black Women, YOUTUBE, at 31:10-1:01:44 (Apr. 6, 2018),

https://www.youtube.com/watch?v=66830_oEgaM [https://perma.cc/PT4K-Y34X].

Controlling images like “welfare queen” and “baby mama,” are projected onto the bodies of

Black women to justify home invasions and murder. In this way, “home” for Black women

becomes an unprotected space of vulnerability to all violence, particularly state-sanctioned

violence. Thus, where the Fourth Amendment should act as a bulwark against governmental

intrusion, it becomes a vehicle for justified invasion and death. Id. at 35:28-36:38

(highlighting Black women who have had their privacy invaded such as Dollree Mapp, who

had to take her landmark case to the Supreme Court to vindicate her Fourth Amendment

rights).

164

Interview with Josh Jaynes, supra note 2, at 386-88 (referring to an amorphous group

as “these people” nine times over the course of three responses to questions).

165

This position has been explicitly adopted by the Seventh Circuit. United States v.

McClellan, 165 F.3d 535, 546 (7th Cir. 1999) (quoting United States v. Reddrick, 90 F.3d

1276, 1281 (7th Cir. 1996)) (“[I]n issuing a search warrant, a magistrate is entitled to draw

reasonable inferences about where the evidence is likely to be kept . . . and . . . in the case of

drug dealers[,] evidence is likely to be found where the dealers live.”).

166

See United States v. McPhearson, 469 F.3d 518, 524-25 (6th Cir. 2006) (finding the

inference that an individual is likely to have drugs stored in his home is drawn permissibly

where “independently corroborated fact[s show] that the defendants were known drug

dealers at the time the police sought to search their homes”).

167

McPhearson, 469 F.3d 518.

168

Id. at 524-25 (citing McClellan, 165 F.3d at 546).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 33

arrested him was for simple assault.”

169

The court held that “[i]n the absence of

any facts connecting McPhearson to drug trafficking, the affidavit . . . [could

not] support the inference that evidence of wrongdoing would be found in

McPhearson’s home because drugs were found on his person.”

170

In Taylor’s

case, the magistrate would be doubly disallowed from drawing such an

inference—not only is it disallowed because there was no evidence Taylor was

a drug dealer, but there was also no evidence a known drug dealer was living

in Taylor’s home.

C. It Was Stale

Glover picked up a package from Taylor’s home on January 16, 2020,

roughly two months before officers executed the warrant and killed Taylor.

171

Glover used Taylor’s address as his own as of February 20, roughly a month

before the execution.

172

Except for these incidents, Jaynes’s observations that

pertain to Taylor lack dates.

173

In United States v. Spikes,

174

the Sixth Circuit adopted the following four-

prong staleness test:

[(1)] the character of the crime (chance encounter in the night or ongoing

conspiracy?), [(2)] the criminal (nomadic or entrenched?), [(3)] the thing

to be seized (perishable and easily transferable or of enduring utility to its

holder?), [and (4)] the place to be searched (mere criminal forum of

convenience or secure operational base?), etc.

175

In the context of drug crimes, information for search warrant affidavits goes

stale very quickly because drugs are usually sold and consumed promptly.

176

169

Id. at 525.

170

Id. (finding further that the magistrate “lacked a substantial basis for concluding that

probable cause existed for issuing the warrant”); see also United States v. Abernathy, 843

F.3d 243, 252-54 (6th Cir. 2016) (quoting McPhearson, 469 F.3d at 524-25) (applying

McPhearson among, other cases, to find no probable cause for a home search after

marijuana was found in defendant’s trash).

171

Affidavit for Search Warrant, supra note 8, para. 8; Riley et al., supra note 20 (noting

January 16 as date when Glover was observed by police picking up a package from Taylor’s

house).

172

Affidavit for Search Warrant, supra note 8, para. 13.

173

See id. paras. 8-13.

174

158 F.3d 913 (6th Cir. 1998).

175

Id. at 923 (quoting Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975));

see also United States v. Hammond, 351 F.3d 765, 771-72 (6th Cir. 2003) (citing United

States v. Greene, 250 F.3d 471, 480-81 (6th Cir. 2001)) (applying Spikes factors to find that

tip was not stale, although the tip on its own was still insufficient for establishing probable

cause).

176

United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009) (contrasting prompt

consumption of drugs with child pornography, which “can have an infinite life span”), cited

with approval in United States v. Bell, 504 F. Supp. 3d 640, 649 (W.D. Ky. 2020) (applying

factors from Frechette).

34 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

While some courts have uniformly rejected a bright-line rule regarding

staleness,

177

others have also rejected evidence as stale that exceeded as little

as forty-eight hours in cases involving drug possession

178

and older than

several weeks in cases involving drug trafficking.

179

The Sixth Circuit has rejected undated evidence. In United States v.

Hython,

180

the Sixth Circuit rejected the use of an undated cocaine transaction

177

E.g., United States v. Sutton, 742 F.3d 770, 774 (7th Cir. 2014) (“[T]here is no bright

line rule for determining staleness.”); United States v. Wagner, 989 F.2d 69, 75 (2d Cir.

1993) (“[T]here is no bright line rule for staleness . . . .”).

178

United States. v. Leaster, 35 F. App’x 402, 409-11 (6th Cir. 2002) (finding that

confidential informant’s allegations that he saw cocaine in defendant’s home forty-eight

hours before a search warrant execution were “arguably” stale, but ultimately upholding

search based on good-faith exception); see also United States v. Fairchild, 774 F. Supp.

1544, 1552-53 (W.D. Wis. 1990) (holding that informant’s claim that he had seen

methamphetamine at defendant’s apartment within previous thirty-six hours was stale

because affidavit “failed to present any evidence as to the quantity, location, storage or use

of the drug or other circumstances which would have allowed the judge to make an

informed decision as to the probability that the methamphetamine would be found at the

apartment when the warrant was issued”).

179

United States v. Helton, 314 F.3d 812, 822 (6th Cir. 2003) (noting that, despite

relatively long duration of storage of drug money as evidence, two-month delay between

seeing money in defendant’s home and making search warrant affidavit insufficient for

probable cause); see also United States v. Payne, 181 F.3d 781, 790 (6th Cir. 1999) (holding

month-old tip to be stale because drugs are not objects that are likely to be kept and because

tip from confidential informant contained no indication of ongoing activity); Wagner, 989

F.2d at 74-75 (holding that affidavit stating that informant had purchased marijuana from

defendant six weeks before search warrant was issued was stale); United States v. Bender,

423 F. Supp. 3d 473, 479 (M.D. Tenn. 2019) (holding that marijuana odor that was twenty

days old was stale evidence); United States v. Myles, 307 F. Supp. 3d 676, 681-82 (E.D.

Mich. 2018) (holding that photographs on defendant’s Instagram page showing defendant

with drugs that were taken several months prior to execution of warrant and informant’s

observation of defendant selling heroin seven months before execution of search were stale

pieces of information); United States v. Fritts, No. 16-cr-20554, 2016 WL 7178739, at *4

(E.D. Mich. Dec. 9, 2016) (holding that domestic abuse report that was two months old was

in danger of being stale when used to determine defendant’s residence, especially because

“there is a likelihood that the living arrangements would have changed after the dispute”);

United States v. Williams, No. 10-cr-00008, 2010 WL 1796578, at *3 (E.D. Ky. May 4,

2010) (holding that marijuana seeds, stems, and torn plastic bag in garbage that included

items that appeared to be three weeks old were too stale to support probable cause for

cocaine-related offenses); Fairchild, 774 F. Supp. at 1552-53 (holding that informant’s

claim that he had seen methamphetamine at defendant’s apartment within previous thirty-six

hours was not sufficient to support probability that drug would be found at apartment when

warrant was issued).

180

443 F.3d 480 (6th Cir. 2006).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 35

to support the validity of a no-knock warrant.

181

In finding the undated drug

transaction stale, the court stated, “the sale of drugs out of a residence—is not

inherently ongoing. Rather, it exists upon a continuum ranging from an

individual who effectuates the occasional sale from his or her personal

holdings of drugs to known acquaintances, to an organized group operating an

established and notorious drug den.”

182

The court further found that the

affidavit lacked evidence that the search involved a secure operational base for

an ongoing drug enterprise; rather, the evidence consisted solely of one

undated controlled buy.

183

Jaynes may have established evidence of ongoing drug distribution

involving Glover, but the evidence he submitted that connected Taylor to those

activities was paltry and insufficient. No one saw Taylor handling drugs or in

the vicinity of any drugs.

184

No one saw drugs on Taylor’s premises.

185

The

absence of such evidence cannot support an inference that drugs were in

Taylor’s home, let alone an inference that Taylor’s home was an operational

base for an ongoing drug conspiracy. Jaynes failed to provide detailed or

contextual evidence that would implicate Taylor in an ongoing criminal

enterprise or a single transaction; thus, there was no evidence that would

extend the staleness inquiry and lend flexibility to the analysis. If the courts

have found that first- or third-hand accounts of drug possession go stale in

forty-eight hours or a few months, then it is certain that courts cannot assess

the freshness of the evidence where no one has seen drugs at all, much less

determine how entrenched the criminal enterprise is.

In Jaynes’s affidavit, no date is associated with his observations concerning

Taylor’s car or the Dodge that Glover drove.

186

The magistrate had no way of

knowing when these observations were made. Were they made two years

earlier? Five? Furthermore, Glover was not part of a marijuana grow

181

Id. at 485, 488-89 (affirming district court holding that warrant authorizing search

was “invalid due to staleness” when supporting evidence was “undated” and no additional

evidence “ground[ed] the undated [evidence] within a finite period of investigation”); see

also Frechette, 583 F.3d at 378 (“[I]nformation of an unknown and undetermined vintage

relaying the location of mobile, easily concealed, readily consumable, and highly

incriminating narcotics could quickly go stale in the absence of information indicating an

ongoing and continuing narcotics operation.” (quoting United States v. Kennedy, 427 F.3d

1136, 1142 (8th Cir. 2005) (alteration in original))).

182

Hython, 443 F.3d at 485.

183

Id. at 486 (“[T]he investigation consisted solely of one modified controlled

buy . . . . More importantly, the affidavit offers no clue as to when this single controlled buy

took place.”).

184

See Affidavit for Search Warrant, supra note 8, paras. 8-13 (lacking any assertions

that Taylor handled or was in vicinity of drugs).

185

See id. (revealing that only stated connection between Taylor and suspected drug

activity was that car registered to Taylor’s name was seen parked in front of suspected drug

house).

186

Id. paras. 2, 7-8, 10, 14.

36 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

investigation or criminal activity that was permanent or sedentary in nature.

Instead, he participated in hand-to-hand transactions involving narcotics.

187

The absence of dates for all incidents of alleged drug trafficking provides no

way to assess the freshness of the evidence, and the two pieces of evidence

with dates are stale.

D. It Lacked an Evidentiary Nexus that Connected Taylor to Drug Activity

The Sixth Circuit has required more nexus evidence than Jaynes supplied

between the suspected activity and Taylor’s home.

188

In United States v.

Carpenter,

189

the Sixth Circuit held that because the Fourth Amendment

requires a search warrant to describe with particularity the place to be searched

and the persons or things to be seized, the affidavit must demonstrate a “nexus

between the place to be searched and the evidence sought.”

190

In order to

satisfy probable cause, the evidence in the affidavit must establish a

“connection between the residence and the evidence of criminal activity [that]

must be specific and concrete, not ‘vague’ or ‘generalized.’”

191

“If the affidavit

does not present sufficient facts demonstrating why the police officer expects

to find evidence in the residence rather than in some other place, a judge may

not find probable cause to issue a search warrant.”

192

Determining “whether an

187

See id. para. 4 (describing Glover’s alleged drug trafficking activity as dropping

cylindrical objects (suspected drugs) for pick-up by customers).

188

Instead of adopting a per se rule that authorizes search warrants for a drug dealer’s

home based solely on evidence that the defendant is in fact a drug dealer, the Sixth Circuit

has required a “plus” factor, additional evidence forming a nexus between the place to be

searched and the evidence sought. See United States v. Miggins, 302 F.3d 384, 393 (6th Cir.

2002) (two roommates arrested after receiving delivery of cocaine package lived together at

residence searched and were previously involved in drug trafficking); United States v.

Jones, 159 F.3d 969 (6th Cir. 1998) (confidential informant had been on premises, but

outside the searched house, seventy-two hours preceding the affidavit and had there

witnessed the defendant in possession of cocaine for distribution); United States v. Caicedo,

85 F.3d 1184, 1193 (6th Cir. 1996) (defendant lied about his address to arresting officers);

United States v. Davidson, 936 F.2d 856, 857-60 (6th Cir. 1991) (officers witnessed

coconspirators entering and exiting the defendant’s residence in the course of conspiracy);

United States v. Martin, 920 F.2d 393, 399 (6th Cir. 1990) (“[O]ne of the narcotics sales

took place very near the residence and the confidential informant had been inside the

residence and provided some information as to what was kept there.”); United States v.

Newton, 389 F.3d 631, 641-42 (6th Cir. 2004) (requiring some tangible connection between

the suspect and the alleged criminal activity).

189

360 F.3d 591 (6th Cir. 2004).

190

Id. at 594 (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir.

1998)); see also United States v. Brown, 828 F.3d 375, 382 (6th Cir. 2016) (citing

Carpenter, 360 F.3d at 594).

191

Brown, 828 F.3d at 382 (citing Carpenter, 360 F.3d at 595).

192

Id. (citing Carpenter, 360 F.3d at 595).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 37

affidavit establishes a proper nexus [involves] a fact-intensive” inquiry that

requires an examination of the totality of the circumstances.

193

Although courts have struggled with determining the quantum of evidence

necessary to establish a nexus between alleged criminal activity and the place

to be searched, the Sixth Circuit has specifically addressed the nexus

requirement in the context of drug trafficking.

194

It has held that “if the

affidavit fails to include facts that directly connect the residence with the

suspected drug dealing activity, or the evidence of this connection is

unreliable, it cannot be inferred that drugs will be found in the defendant’s

home—even if the defendant is a known drug dealer.”

195

The Sixth Circuit is

clear:

[A] defendant’s status as a drug dealer, standing alone, does [not] give[]

rise to a fair probability that drugs will be found in his home.

Where . . . the warrant affidavit is based almost exclusively on the

uncorroborated testimony of unproven confidential informants (none of

whom witnessed illegal activity on the premises of the proposed search),

the allegation that the defendant is a drug dealer, without more, is

insufficient to tie the alleged criminal activity to the defendant’s

residence.

196

193

Id. (citing Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Brown, 732

F.3d 569, 573 (6th Cir. 2013)).

194

Id. at 381-82 (“The Fourth Amendment concern with protection from unreasonable

intrusion in the home has resulted in a wide river of cases . . . . One recurring fact pattern

involving nexus requirements in searches related to drug trafficking is presented here.”).

195

Id. at 384.

196

United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). To be clear, where there

is evidence that the defendant is a drug dealer, the Sixth Circuit has allowed an inference

that drugs will be stored in the defendant’s home. See United States v. Miggins, 302 F.3d

384, 393 (6th Cir. 2002) (finding probable cause where roommates engaged in drug

trafficking together would have “narcotics and equipment used in the distribution of

narcotics” in their home); United States v. Davidson, 936 F.2d 856, 859 (6th Cir. 1991)

(holding that police had probable cause for issuance of a search warrant since “the

affidavit . . . reveal[ed] a substantial basis for concluding that a search of [the defendant’s]

apartment ‘would uncover evidence of wrongdoing’” (quoting Gates, 462 U.S. at 236)).

38 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

The court requires some reliable evidence that connects the known drug

dealer’s ongoing criminal activity to the residence.

197

That is, the court has

required facts showing that a residence has been used in drug trafficking, such

as an informant who has observed drug deals or drug paraphernalia in or

around the residence.

198

Several cases illustrate how Jaynes’s affidavit was too vague, generalized,

and insubstantial to establish a proper nexus between narcotics trafficking and

For cases in other circuits with similar holdings, see United States v. Feliz, 182 F.3d 82,

87-88 (1st Cir. 1999) (finding that it was reasonable to suppose drug dealer stored evidence

of dealing at home, even though no drug trafficking was observed to occur there); United

States v. McClellan, 165 F.3d 535, 546 (7th Cir. 1999) (“[I]n issuing a search warrant, a

magistrate is entitled to draw reasonable inferences about where the evidence is likely to be

kept . . . and . . . in the case of drug dealers evidence is likely to be found where the dealers

live.” (quoting United States v. Reddrick, 90 F.3d 1276, 1281 (7th Cir. 1996))); United

States v. Henson, 123 F.3d 1226, 1239 (9th Cir. 1997) (“In the case of drug dealers,

evidence is likely to be found where the dealers live.” (quoting United States v. Angulo-

Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986))); United States v. Luloff, 15 F.3d 763, 768 (8th

Cir. 1994) (ruling that observations of drug trafficking occurring away from dealer’s

residence, coupled with officer’s statement in his affidavit that drug dealers often store

evidence of drug dealing in their residences, provided probable cause for search of dealer’s

house); United States v. Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993) (per curiam)

(concluding that observations of drug trafficking away from dealer’s residence can provide

probable cause to search dealer’s house); and United States v. Williams, 974 F.2d 480, 482

(4th Cir. 1992) (per curiam) (finding that affidavit establishing that known drug dealer

resided in motel was sufficient to show probable cause to search motel room for drug

paraphernalia).

197

See, e.g., United States v. Jones, 159 F.3d 969, 974-75 (6th Cir. 1998).

198

Compare id. at 974-75 (finding probable cause to issue warrant where confidential

informant purchased drugs from defendant, was at defendant’s residence during monitored

drug transactions, and observed defendant in possession of cocaine), United States v.

Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (finding inference proper because reliable

confidential informant had “observed someone come out of [the defendant’s] residence,

engage in a drug transaction, and then return into the residence”), and United States v.

Berry, 565 F.3d 332, 339 (6th Cir. 2009) (“Although a defendant’s status as a drug dealer,

standing alone, does not give rise to a fair probability that drugs will be found in defendant’s

home, . . . there is support for the proposition that status as a drug dealer plus observation of

drug activity near defendant’s home is sufficient to establish probable cause to search the

home.”) (internal citation omitted), with Frazier, 423 F.3d at 532 (finding inference

improper because affidavit failed to establish the informants’ reliability and informants had

not “witnessed [the defendant] dealing drugs from his [new] residence,” only from his old

residence). The court has also found probable cause in cases involving drug dealers who are

“major players in a large, ongoing drug trafficking operation.” See Brown, 828 F.3d at 383

n.12 (citing United States v. Kenny, 505 F.3d 458, 461-62 (6th Cir. 2007) (finding probable

cause where defendant, who was operating methamphetamine lab, was identified as the

“cook” for a large drug operation by informant whose information regarding drug operation

was corroborated by independent evidence)); Miggins, 302 F.3d at 388; United States v.

Gunter, 551 F.3d 472, 476-77 (6th Cir. 2009) (finding probable cause where numerous

conversations were recorded between informant and defendant regarding distribution of

large quantities of cocaine).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 39

Taylor’s home. In Carpenter, law enforcement presented an affidavit that

stated only that an officer had observed numerous marijuana plants growing

near the residence and a road that connected the residence to the plants.

199

Although the affidavit set forth some semblance of a connection between the

marijuana plants and the residence, the court held that the information that

plants growing outside a residence were connected to that residence by a road

was “too vague, generalized, and insubstantial to establish probable cause.”

200

Similarly, in McPhearson, the Sixth Circuit held that an affidavit failed to

“establish the requisite nexus between the place to be searched and the

evidence to be sought” in a case where crack cocaine was found in the pocket

of a defendant who lived at the address when he was arrested on a non-drug

offense.

201

The court dismissed the claim that “an individual arrested outside

his residence with drugs in his pocket is likely to have stored drugs and related

paraphernalia in that same residence” because there was no additional evidence

that the defendant was or had been involved in drug crimes.

202

The court also found the nexus insufficient where an informant identified

the defendant’s residence as the site of a drug operation, but law enforcement

failed to establish the informant’s reliability.

203

In United States v. Higgins,

204

police stopped a vehicle and found narcotics, including cocaine base and

powdered cocaine.

205

The driver and his passengers stated that they had

received the drugs from the defendant in his apartment.

206

Officers

corroborated that the defendant lived at the address and obtained a search

warrant stating that a confidential informant, whose name they revealed,

reported that he had obtained the drugs from the defendant’s apartment.

207

The

court found no probable cause, explaining that the affidavit did not “assert that

the informant had been inside [the defendant’s] apartment, that he had ever

seen drugs or other evidence inside [the defendant’s] apartment, or that he had

seen any evidence of a crime other than the one that occurred when [the

defendant] allegedly sold him drugs.”

208

The court concluded that “[w]ithout

such an assertion, the affidavit fails to establish the necessary ‘nexus between

the place to be searched and the evidence sought.’”

209

Moreover, the rejected

affidavit relied on an unproven tipster and provided no evidence that the tipster

199

United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004).

200

Id. at 595.

201

United States v. McPhearson, 469 F.3d 518, 524-25 (6th Cir. 2006).

202

Id. (citation omitted).

203

See United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009).

204

Higgins, 557 F.3d 381.

205

Id. at 385.

206

Id.

207

Id.

208

Id. at 390.

209

Id. (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)).

40 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

had observed narcotics or evidence of illegal drug sales associated with the

defendant’s residence.

210

Citing Higgins as controlling, in United States v. McClain,

211

the court

rejected an affidavit in which police failed to state that an informant had been

inside the defendant’s girlfriend’s home, had seen drugs inside it, or had seen

evidence of a crime:

The affidavit in this case contains no “substantial independent police

corroboration” of the claims made by the unidentified informant;

therefore, those claims must be disregarded, and the affidavit establishes

nothing more than the fact that [the defendant] was a known drug dealer

who had been seen going in and out of his girlfriend’s apartment. This,

under Brown, is insufficient to establish probable cause that evidence of

narcotics trafficking would be found in the apartment.

212

Similarly, in United States v. Newton,

213

the defendant was part of a large

drug ring involving controlled deliveries and reliable informants.

214

However,

the court rejected the search warrant for the home of the defendant’s fiancée

because police had attempted to establish a nexus with evidence that the car the

defendant was driving when he was arrested belonged to his fiancée, and that

she had ties to two other addresses where the defendant dealt drugs.

215

Jaynes’s affidavit was far sparser than those in Higgins, McClain, or

Newton.

216

It lacked any first-, second-, or third-hand evidence about what was

in Taylor’s home. No one had been inside Taylor’s home, and no one had seen

narcotics in it or evidence of any crime.

217

There is a complete absence of an

evidentiary nexus between Taylor’s home and drug dealing in the affidavit.

Regardless, if any inference could be drawn about Glover’s drug dealing and,

therefore, a search of his home, there was little to no evidence that Glover was

living at Taylor’s residence, which would allow for a search of Taylor’s home

based on Glover’s status as a drug dealer.

Jaynes may well defend his affidavit by arguing that what matters for

establishing probable cause is not whether a particular piece of evidence

proves something but whether the evidence establishes “the kind of ‘fair

probability’ on which ‘reasonable and prudent [people,] not legal technicians,

210

Id. (“[T]his affidavit does not assert that the informant had been inside [defendant’s]

apartment, [or] that he had ever seen drugs or other evidence inside [defendant’s]

apartment . . . .”).

211

No. 3:16-cr-00054, 2017 WL 1375196 (W.D. Ky. Apr. 13, 2017).

212

Id. at *8.

213

210 F. Supp. 2d 900 (E.D. Mich. 2002).

214

Id. at 901-03.

215

Id. at 905 (“There is simply a lack of ‘evidentiary nexus’ between this address and

criminal activity.” (citing United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994))).

216

See Affidavit for Search Warrant, supra note 8, paras. 8-13.

217

Id. (failing to mention anything that was occurring inside Taylor’s home).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 41

act.’”

218

The evidence in Jaynes’s affidavit, however, failed to provide the

particularity necessary to establish a fair probability that Taylor’s home held

evidence of drug dealing:

(1) Jaynes observed a red Dodge Charger (not people) that targets of the

investigation used (none of which were Taylor) make trips between

Taylor’s home and a known trap house.

219

The affidavit fails to state who

got in the car, who came out of the car, whether anyone got of the car and

went into Taylor’s home, or when this happened.

220

(2) On January 16, 2020, Jaynes saw Glover go into Taylor’s home,

emerge “with a suspected USPS package in his right hand,” and drive to a

trap house.

221

The affidavit fails to state what was in the package, whether

Glover took the package to the trap house, or whether Glover took

anything out of the package and took that into the trap house.

222

(3) Jaynes stated that he had “verified through a US Postal Inspector” that

Glover had been “receiving packages” at Taylor’s home.

223

This

statement is a lie.

224

(4) Jaynes observed Taylor’s Impala parked outside a trap house “on

different occasions.”

225

He did not name any person who was in or near

Taylor’s car.

226

None of these statements in isolation or together establish any nexus

between Taylor’s home and drugs. Jaynes did not state who occupied the

Dodge or the Impala because Jaynes had tracking devices on both cars, as

opposed to direct surveillance. The lack of direct surveillance would explain

why his affidavit fails to state who got out of the car, who went into the car,

who operated the cars, or where the occupants of the cars went.

227

Apart from

one incident, Jaynes gave no information about anyone carrying anything into

the cars, Taylor’s home, or the trap houses. His claims that the Dodge traveled

between two places and that Taylor’s car was parked outside a trap house

allow for highly limited inferences, certainly none that would establish the

218

Florida v. Harris, 568 U.S. 237, 244 (2013) (alteration in original) (quoting Illinois v.

Gates, 462 U.S. 213, 231, 238 (1983)).

219

See Affidavit for Search Warrant, supra note 8, paras. 7, 14.

220

See id.

221

Id. para. 9.

222

See id.

223

Id.

224

See Duvall, Fact Check, supra note 3.

225

Affidavit for Search Warrant, supra note 8, para. 10.

226

See id.

227

Darcy Costello, Jamarcus Glover, A Key Figure in Breonna Taylor Case, Arrested on

Warrants, COURIER J. (Louisville) (Aug. 27, 2020, 4:51 PM), https://www.courier-

journal.com/story/news/local/breonna-taylor/2020/08/27/jamarcus-glover-breonna-taylor-

case-booked-jail/3444810001/.

42 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

presence of narcotics at Taylor’s home. Except for January 16, Jaynes states

that he saw the Dodge make frequent trips to Taylor’s home, but Jaynes fails to

state how many trips, or more importantly, when these trips occurred, whether

they were in the last week, month, or year.

228

There was a pole camera outside

the trap house but none outside Taylor’s home.

229

If Taylor or Glover emerged

from Taylor’s car and went into the trap house, that information should have

been in the affidavit. If Taylor, Glover, or anyone else emerged from Taylor’s

home with packages and proceeded to the trap house, that information should

have been in the affidavit. If anyone made any interception of packages and

discovered narcotics, that information should have been in the affidavit. If any

officer made a traffic stop to determine if there was anything incriminating in

the car, that information should have been in the affidavit. If any person made

any accusation about narcotics in Taylor’s home or packages containing

narcotics being delivered to her home, that information should have been in the

affidavit. The absence of this information and the absence of those claims

might lead to the conclusion that such information did not exist.

Jaynes claimed that his viewing Glover take a package, on one occasion,

from Taylor’s home justified an inference that there were narcotics in Taylor’s

home.

230

Carrying a package out of a residence, however, is insufficient

evidence to infer that narcotics were in the home. Jaynes failed to describe the

package as to size, shape, and color, and why he concluded it contained drugs.

This single observation was made almost two months before the search warrant

was obtained.

231

Consequently, it was too vague and stale. Assuming arguendo

that Glover carried one package out of Taylor’s home establishes nothing

about what remained in Taylor’s home. Glover carrying one package out of

Taylor’s home two months before LMPD executed a warrant did not render the

continued presence of narcotics probable at Taylor’s home. As far as the

affidavit describes, no one saw what was in Glover’s package; no one

performed a traffic stop and attempted a consent search to find out what was in

the package; no “snitch” or confidential informant offered any information

about the contents of the package or Taylor’s home; and no one attempted to

intercept packages to Taylor’s home through the mail or to do a K9 alert

because no packages were going to Taylor’s home. Law enforcement made no

effort to install a pole camera outside Taylor’s building to monitor traffic in

and out of her home, Glover’s egress and ingress in and out of her home, or the

movement of packages in and out of her home. In fact, we can infer that

Glover did not emerge from the car and go into the trap house with the

package, because that information would have been in the affidavit. Nothing in

the affidavit states that Glover took anything out of the package or took the

228

Affidavit for Search Warrant, supra note 8, para. 7.

229

Id. paras. 1, 7.

230

See Interview with Josh Jaynes, supra note 2, at 388-95.

231

Affidavit for Search Warrant, supra note 8, para. 9 (observing Glover’s entry into

Taylor’s home on January 16, 2020, but signing affidavit on March 12, 2020).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 43

package itself into the trap house.

232

Similarly, no information in the affidavit

states that Taylor was operating her car in or around the trap house.

233

In fact,

we do not know who was operating Taylor’s car because the warrant does not

include that information.

To satisfy probable cause, the evidence in the affidavit must establish a

connection between the residence and criminal activity, and it must be specific

and concrete, not vague or generalized.

234

In Taylor’s case, Jaynes made a

perjured statement that Glover had been receiving several parcels in the mail at

Taylor’s home.

235

The affidavit lacked any evidence that the packages

contained drugs, and it lacked specific information about what kind of drugs or

what quantity of drugs the packages contained.

236

The affidavit provided no

evidence that Glover, let alone Taylor, had been found in possession of

drugs.

237

The search warrant stated, in essence, that Glover was a drug dealer

and that he had received packages at Taylor’s home. That statement adds

nothing to the probable cause determination. The Supreme Court rejected this

paltry level of evidence in Richards v. Wisconsin

238

: “[I]n each case, it is the

duty of a court confronted with the question to determine whether the facts and

circumstances of the particular [situation] justified” the Fourth Amendment

intrusion.

239

In Zurcher v. Stanford Daily,

240

the Court had previously

articulated, “The critical element in a reasonable search is not that the owner of

the property is suspected of crime but that there is reasonable cause to believe

that the specific ‘things’ to be searched for and seized are located on the

property to which entry is sought.”

241

The information that an individual was a

suspected drug trafficker did not give the police carte blanche to search

Glover’s home, let alone Taylor’s.

242

Based on Jaynes’s affidavit, Judge Shaw had no way of knowing what the

relationship was between Taylor and Glover, what the packages the affidavit

232

See id. para. 9.

233

Id. para. 10.

234

See supra notes 150-70 and accompanying text.

235

See Duvall, Fact Check, supra note 3.

236

See Affidavit for Search Warrant, supra note 8, paras. 3, 5, 9 (mentioning only

narcotics related offenses for which Glover and Walker were being charged with at time of

affidavit, but not presence of drugs in package Glover carried out of Taylor’s home on

January 16, 2020).

237

See id.

238

520 U.S. 385 (1997).

239

Id. at 394.

240

436 U.S. 547 (1978).

241

Id. at 556.

242

See United States v. Newton, 389 F.3d 631, 642 (6th Cir. 2004) (Moore, J.,

concurring in part and dissenting in part), vacated, 546 U.S. 801, 803 (2005) (“That an

individual is suspected of drug trafficking should not give the police carte blanche to search

her home and that this and most of the other courts of appeals have come close to so holding

is unfortunate.”).

44 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

mentioned contained, or that the Postal Inspector had concluded that there was

nothing suspicious about those packages.

243

If she had spent more time

reviewing Jaynes’s affidavit, she might have thought to ask whether there

could be an innocent explanation for the interactions between Taylor and

Glover that had nothing to do with drugs.

244

Although Jaynes presented

compelling evidence of drug dealing by Glover, the inferences about Taylor

were largely driven by guilt by association, a notion courts have decisively

rejected.

245

E. After-Acquired Evidence Does Not Apply

Jaynes may argue that the affidavit must be judged on what it has, not on

what it lacks. It is true that when determining whether an affidavit establishes

probable cause, the court must “look only to the four corners of the affidavit;

information known to the officer but not conveyed to the magistrate is

irrelevant.”

246

But that argument is a two-way street; Jaynes cannot use after-

acquired evidence to buttress his affidavit. The probable cause determination is

made on the sufficiency of the evidence contained within the four corners of

the affidavit, not on any evidence beyond the four corners to substantiate his

claim of innocence.

The May 1, 2020, police report disclosed that Glover had listed Taylor’s

apartment as his address for a Chase bank account in February and that he had

listed Taylor’s phone number as his own when he filed a complaint against a

police officer that same month.

247

On March 13, 2020, during a taped phone

call made roughly twelve hours after he was arrested, Glover told a girlfriend

that Taylor was holding $8,000 dollars for him (although no money was found

243

See Affidavit for Search Warrant, supra note 8, paras. 8-13.

244

See Rukmini Callimachi, The Untold Story of Breonna Taylor: Her Life Was

Changing. Then the Police Came to Her Door, N.Y. TIMES, Aug. 30, 2020, at A1 (“[T]he

information the police had compiled to suggest that Ms. Taylor’s apartment was used in the

operation was thinner.”).

245

E.g., Barber v. Rewerts, No. 1:19-cv-00498, 2021 WL 4295853, at *9-10 (W.D.

Mich. June 9, 2021) (“Guilt by association has no place in the American criminal justice

system.”); cf. Zurcher, 436 U.S. at 555 (“[T]he premise of the District Court’s holding

appears to be that state entitlement to a search warrant depends on culpability of the owner

or possessor of the place to be searched and on the State’s right to arrest him. The cases are

to the contrary.”).

246

United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010) (citing United States v.

Pinson, 321 F.3d 558, 565 (6th Cir. 2003)); see also Commonwealth v. Pride, 302 S.W.3d

43, 49 (Ky. 2010) (“We also review the four corners of the affidavit and not extrinsic

evidence in analyzing the warrant-issuing judge’s conclusion.”).

247

Darcy Costello & Tessa Duvall, Why Were Police at Breonna Taylor’s Home? Here’s

What an Investigative Summary Says, USA TODAY (Sept. 24, 2020, 10:03 AM),

https://www.usatoday.com/story/news/nation/2020/09/04/report-details-why-louisville-

police-wanted-search-breanna-taylors-home/5706161002/.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 45

at Taylor’s apartment).

248

No other source has ever corroborated Glover’s

statement. In fact, on another recorded call, one of Glover’s co-defendants said

that another woman had been handling the conspiracy’s money.

249

In an

interview with the Courier Journal, Glover denied that Taylor had ever had

anything to do with illicit drugs or money.

250

Glover has consistently stated

that Taylor had nothing to do with drug dealing even when he was under

immense pressure to do so and had every incentive to lie.

251

Glover told the

Courier Journal that he had previously asked Taylor to have his packages,

including shoes and clothing, delivered to her apartment because he was afraid

someone would steal them if they were delivered to his home.

252

The last time

Glover picked up a package from Taylor’s home was January 16, 2020.

253

The

above-referenced evidence, even if it were helpful in implicating Taylor in the

drug trafficking, which it is not, is outside the affidavit and cannot support a

probable cause determination.

F. The Leon Good-Faith Exception Does Not Apply

In United States v. Leon,

254

the Supreme Court established a test to

determine when officers act in good faith and reasonably rely on a search

warrant that is ultimately found to be invalid.

255

Even under the generously

carved out good-faith exception under Leon, both Jaynes’s and Mattingly’s

conduct fail. Under Leon, the test is whether a reasonably trained officer would

have known that the warrant was illegal despite the magistrate’s

authorization.

256

The Leon good-faith exception bars the use of the

exclusionary rule to exclude evidence where the officers objectively and

reasonably relied on the warrant.

257

Leon identified four situations where the

good-faith exception does not apply:

248

Andrew Wolfson, Report Details Why Louisville Police Decided to Forcibly Search

Taylor’s Home, COURIER J. (Louisville) (Aug. 25, 2020), https://www.courier-

journal.com/story/news/local/breonna-taylor/2020/08/25/report-details-why-louisville-

police-decided-to-forcibly-search-breonna-taylor-home/5593502002/ (“Glover . . . told a

girlfriend that Taylor was holding $8,000 for him and that she had been ‘handling all my

money.’ No money was found at [Taylor’s] residence during the police search.”).

249

Id. (“Demarius Brown, who was arrested with Glover, told his sister that another

woman, Alicia ‘Kesha’ Jones . . . had been given the group’s money.”).

250

See Bailey et al., supra note 69.

251

Id.

252

Id.

253

Affidavit for Search Warrant, supra note 8, para. 9.

254

468 U.S. 897 (1984).

255

Id. at 922 n.23 (holding that “good-faith inquiry is confined to the . . . question

whether a reasonably well-trained officer would have known that the search was illegal

despite the magistrate’s authorization”).

256

Id.

257

Id. at 922-23.

46 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

(1) when the warrant is issued on the basis of an affidavit that the affiant

knows (or is reckless in not knowing) contains false information;

(2) when the issuing magistrate abandons his neutral and detached role

and serves as a rubber stamp for police activities; (3) when the affidavit is

so lacking in indicia of probable cause that a belief in its existence is

objectively unreasonable; and, (4) when the warrant is so facially

deficient that it cannot reasonably be presumed to be valid.

258

As previously discussed, Jaynes secured the warrant through perjury.

259

The

warrant for Taylor’s home fails the “substantial basis” and “objectively

reasonable” tests, both when the perjured testimony is included and when it is

not.

260

When “viewed in light of ‘all of the circumstances,’ the fatal flaws in

the affidavit”—the vague, stale, completely unrefreshed, thoroughly

uncorroborated statements; the perjury; and the lack of any evidence

connecting Taylor to drug activity—lead to an inevitable conclusion that “a

reasonably well trained officer would have known that the search was illegal

despite the magistrate’s authorization.”

261

The affidavit also fails the third Leon

exception because the perjured testimony and the absence of probable cause

render the warrant facially flawed.

262

As to the remaining Leon exception, Judge Shaw failed to act as a barrier

between the overzealous and perhaps perverse motives of LMPD.

263

Instead,

she rubber-stamped a stack of warrants, perhaps in seamless harmony with the

police and their union.

264

The face of Jaynes’s affidavit failed to provide

evidence that there was a fair probability that Taylor’s home contained

contraband. Jaynes’s affidavit failed to establish probable cause and a warrant

should not have been issued. Taylor’s case is an example of the regularity with

258

United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (citing Leon, 468 U.S.

at 914-23); Leon, 468 U.S. at 923; see also United States v. Glover, 755 F.3d 811, 818-20

(7th Cir. 2014) (analyzing two of four situations when good-faith exception is inapplicable:

(1) facial deficiency and (2) “deliberate or reckless disregard of truth”).

259

See supra Sections II.A-II.E.

260

Illinois v. Gates, 462 U.S. 213, 239 (1983) (establishing “substantial basis” test);

Leon, 468 U.S. at 922-23 (establishing “objectively reasonable” test).

261

United States v. Thomas, 605 F.3d 300, 318 (6th Cir. 2010) (quoting Leon, 468 U.S.

at 922 n.23); see also United States v. Weaver, 99 F.3d 1372, 1380-81 (6th Cir. 1996)

(listing reasons why officer could not rely on warrant affidavit without corroboration efforts,

including that officer lacked “firsthand information” and had “no personal observations”).

262

United States v. Boyce, 601 F. Supp. 947, 954-55 (D. Minn. 1985) (stating that Leon

cannot be applied when an affidavit is insufficient on its face, regardless of the materiality

of the statements to the probable cause determination (citing Franks v. Delaware, 438 U.S.

154, 155-56 (1978))); WILLIAM E. RINGEL, SEARCHES AND SEIZURES, ARRESTS AND

CONFESSIONS § 7:5 (2d ed.), Westlaw (database updated Nov. 2021) (explaining “[u]se of

material misstatements to establish probable cause”).

263

See Leon, 468 U.S. at 914-23.

264

See Balko, supra note 5 (analyzing whether Judge Shaw rubber-stamped the warrant).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 47

which judges grant no-knock warrants with less than the required evidence.

265

Both police and judges would think twice about less-than-viable search

warrant applications if the exclusionary rule applied across the board to

illegally obtained evidence regardless of the standing of the person whose

Fourth Amendment rights were violated or the willfulness of police conduct.

Rigorous judicial and administrative scrutiny of search warrants is a necessary

check on police power. Perhaps, too, if judges had more accountability for

issuing warrants, they would be better incentivized to take more care in

scrutinizing the police.

III. NO-KNOCK WARRANTS

After centuries of fealty to key legal precedents upholding the sanctity of the

home that served as a brake on police excess, the Court pivoted in Hudson v.

Michigan when it undermined the exclusionary rule.

266

In Hudson, the Court

refused to apply the exclusionary rule to evidence obtained in violation of the

knock-and-announce requirements.

267

In doing so, the Court incentivized

carelessness in the acquisition of search warrants and callousness in their

execution, all of which contributed to Breonna Taylor’s death. Section III.A of

this Part lays the foundational legal history of knock-and-announce

requirements. Section III.B argues that Jaynes utterly failed to provide

particularized evidence to excuse the knock-and-announce requirement. In

fact, Jaynes used boilerplate language that the Supreme Court specifically

rejected. Section III.C explores the regularity with which police engage in

dynamic entries, a practice that has proven extremely dangerous, particularly

in marginalized communities. Section III.D argues that the Supreme Court

created the conditions that led to Taylor’s death.

268

A. The Legal History of No-Knock Warrants

The Fourth Amendment embraces the Castle Doctrine and the knock-and-

announce rules.

269

The Castle Doctrine, which dates back to English common

law, holds that the home should be a place of peace and sanctuary.

270

Given the

sanctity of the home, when police execute a search warrant, the default

position is for the officer to give notice of his intention to conduct a search and

show the search warrant to the person in control of the premises before using

265

See id. (explicating how no particularized information regarding Taylor was

mentioned in the affidavit, which is insufficient to grant no-knock warrant under Supreme

Court precedent).

266

Hudson v. Michigan, 547 U.S. 586, 592 (2006).

267

Id.

268

See Obasogie, supra note 29, at 773 (introducing “legal doctrine” as a “significant

contributor to police violence”).

269

See Wilson v. Arkansas, 514 U.S. 927, 931 (1995).

270

See id. (describing the common law doctrine as protecting the home as a “castle of

defense and asylum” (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *288)).

48 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

force.

271

In Wilson v. Arkansas,

272

the Supreme Court said that “[a]n

examination of the common law of search and seizure leaves no doubt that the

reasonableness of a search of a dwelling may depend in part on whether law

enforcement officers announced their presence and authority prior to

entering.”

273

The Court used common law history and the intent of the framers

to solidify the requirement that law enforcement announce its presence:

Although the common law generally protected a man’s house as “his

castle of defense and asylum,” common-law courts long have held that

“when the King is party, the sheriff (if the doors be not open) may break

the party’s house, either to arrest him, or to do other execution of the

K[ing]’s process, if otherwise he cannot enter.” To this rule, however,

common-law courts appended an important qualification:

But before he breaks it, he ought to signify the cause of his coming,

and to make request to open doors . . . , for the law without a default in

the owner abhors the destruction or breaking of any house (which is for

the habitation and safety of man) by which great damage and

inconvenience might ensue to the party, when no default is in him; for

perhaps he did not know of the process, of which, if he had notice, it is

to be presumed that he would obey it . . . .

Several prominent founding-era commentators agreed on this basic

principle. According to Sir Matthew Hale, the “constant practice” at

common law was that “the officer may break open the door, if he be sure

the offender is there, if after acquainting them of the business, and

demanding the prisoner, he refuses to open the door.” William Hawkins

propounded a similar principle: “the law doth never allow” an officer to

break open the door of a dwelling “but in cases of necessity,” that is,

unless he “first signify to those in the house the cause of his coming, and

request them to give him admittance.” Sir William Blackstone stated

simply that the sheriff may “justify breaking open doors, if the possession

be not quietly delivered.”

274

This examination of the preoccupations of the founders and other 17th and

18th century legal authorities clearly articulates the evil to be warded off:

271

Id. at 931-32; 8 LESLIE W. ABRAMSON, KY. PRAC. CRIM. PRAC. & PROC. § 18:85 (6th

ed.), Westlaw (database updated Nov. 2021) (“In executing a search warrant, the officer

should ordinarily give notice of the intentions to conduct a search and should exhibit the

search warrant to the person in control of the premises or the object of the search.”).

272

Wilson, 514 U.S. 927.

273

Id. at 931.

274

Id. at 931-33 (alterations in original) (footnote omitted) (citation omitted) (first

quoting BLACKSTONE, supra note 270, at *288; then quoting Semayne’s Case (1603) 77

Eng. Rep. 194, 195 (KB); then quoting id. at 195-96; then quoting 1 MATTHEW HALE, PLEAS

OF THE CROWN *582; then quoting 2 WILLIAM HAWKINS, PLEAS OF THE CROWN, ch. 14, § 1,

p. 138 (London, His Majesty’s Law Printers, 6th ed. 1787); and then quoting BLACKSTONE,

supra note 270, at *412).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 49

unannounced entry into one’s home.

275

Taylor’s death was exactly the outcome

the knock-and-announce rule was meant to avoid by providing clear notice to

the occupants of the home, who have no reason to suspect that the police will

ram a door off its hinges in the dead of night.

276

As such, under the Fourth Amendment, officers must knock and announce

their presence and authority before entering a private residence.

277

Although

particular “exigent circumstances” may excuse the warrant requirement, the

“exigent circumstances” for the purpose of analyzing knock and announce are

somewhat different than those for a warrant.

278

In order to justify an

unannounced entry into a home, the police must reasonably suspect that

knocking and announcing would be dangerous, futile, or would inhibit

effective investigation.

279

While some facts may excuse the warrant

requirement, those same facts might not excuse the knock-and-announce

requirement.

280

Thus, courts must conduct an independent, case-by-case

analysis to determine whether to excuse the knock-and-announce rule.

281

The Supreme Court has specifically rejected the police practice at issue in

Taylor’s case. In Richards, the police claimed that exigent circumstances

existed because drug dealers habitually destroy evidence, flee, or pose a threat

to police.

282

The Court specifically rejected a “blanket exception to the knock-

and-announce requirement for felony drug investigations,” holding that “in

each case, it is the duty of a court confronted with the question to determine

whether the facts and circumstances of the particular entry justified dispensing

with the knock-and-announce requirement.”

283

The Court reiterated the

importance of particularized and specific facts as a reason for dispensing with

the requirement:

If a per se exception were allowed for each category of criminal

investigation that included a considerable—albeit hypothetical—risk of

danger to officers or destruction of evidence, the knock-and-announce

275

See id. at 931-33.

276

See id. at 929, 937 (holding justification for officers executing warrant in middle of

afternoon, to search and arrest convicted violent criminal, without knocking and announcing

first, was insufficiently considered in state court).

277

Id. at 936; United States v. Francis, 646 F.2d 251, 256 (6th Cir. 1981).

278

See, e.g., United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996) (outlining exigent

circumstances that may excuse officers from complying with knock-and-announce rule).

279

Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (“In order to justify a ‘no-knock’

entry, the police must have a reasonable suspicion that knocking and announcing their

presence, under the particular circumstances, would be dangerous or futile, or that it would

inhibit the effective investigation of the crime . . . .”).

280

Cf. id. (implying that warrant requirements might be excused under exigent

circumstances, but privacy concerns are at forefront of knock-and-announce rule).

281

Id. at 392-94.

282

Id. at 392.

283

Id. at 394, 396.

50 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

element of the Fourth Amendment’s reasonableness requirement would

be meaningless.

Thus, the fact that felony drug investigations may frequently present

circumstances warranting a no-knock entry cannot remove from the

neutral scrutiny of a reviewing court the reasonableness of the police

decision not to knock and announce in a particular case. . . .

In order to justify a “no-knock” entry, the police must have a

reasonable suspicion that knocking and announcing their presence, under

the particular circumstances, would be dangerous or futile, or that it

would inhibit the effective investigation of the crime by, for example,

allowing the destruction of evidence.

284

Accordingly, the mere possibility or suspicion that a suspect might dispose

of evidence is insufficient to create an exigency that would excuse the knock-

and-announce requirement.

285

Similarly, courts have rejected the contention

that engaging in a petty drug transaction exempts the requirement.

286

The Sixth

Circuit has specifically rejected “the notion that the ‘culture’ of violence

associated with drug felonies could justify a blanket exception to the knock

and announce rule.”

287

Although “[t]his showing is not high, . . . police [are]

required to make it whenever the reasonableness of a no-knock entry is

[contested].”

288

B. Jaynes’s Affidavit Failed to Satisfy the Threshold for a No-Knock

Warrant

Jaynes’s affidavit failed to satisfy the low threshold to dispense with the

knock-and-announce requirement. Jaynes did not supply particularized

evidence linked to Taylor that would justify a no-knock warrant.

289

Instead, he

used boilerplate language that law enforcement frequently uses in no-knock

284

Id. at 394.

285

United States v. Bates, 84 F.3d 790, 796 (6th Cir. 1996); see Ingram v. City of

Columbus, 185 F.3d 579, 589 (6th Cir. 1999).

286

Ingram, 185 F.3d at 589 n.7.

287

Id. (citing Richards, 520 U.S. at 392-94).

288

Richards, 520 U.S. at 394-95.

289

Affidavit for Search Warrant, supra note 8, paras. 1-14.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 51

warrant applications.

290

Aside from boilerplate language about drug dealing,

which the Richards Court specifically rejected, Jaynes failed to articulate any

reason for believing that Taylor was dangerous, that she would destroy

evidence or escape, or that announcing would be futile.

291

Taylor was not a

drug dealer and Jaynes knew it.

When Jaynes presented the warrant for Taylor’s home, he presented four

other warrant applications, all tied to Glover’s activities and all filled with the

same language that failed to particularize Taylor. In all five affidavits, Jaynes

used the same boilerplate language.

292

In the portion of the affidavit that

justifies the disposal of the knock-and-announce requirement, Jaynes wrote:

Affiant is requesting a No-Knock entry to the premises due to the nature

of how these drug traffickers operate. These drug traffickers have a

history of attempting to destroy evidence, have cameras on the location

that compromise Detectives once an approach to the dwelling is made,

and a have [sic] history of fleeing from law enforcement.

293

None of this was true of Taylor. Nothing in the affidavit associates Taylor

with drug distribution other than the perjured statement that she was accepting

packages on behalf of Glover.

294

She was not rumored to be a drug dealer.

295

She had not participated in any drug exchange.

296

She had no criminal

history.

297

There was no evidence that Taylor had ever fled from law

enforcement.

298

There was no evidence that she was violent.

299

Therefore, the

proffered justifications for a no-knock warrant were clearly not met.

290

See Balko, supra note 5 (“The portion of the warrant affidavit that requested a no-

knock raid was the exact same language used in the other four warrants.”); see also United

States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) (“The use of generalized boilerplate

recitations designed to meet all law enforcement needs for illustrating certain types of

criminal conduct engenders the risk that insufficient ‘particularized facts’ about the case or

the suspect will be presented for a magistrate to determine probable cause.” (citing In re

Young, 716 F.2d 493, 500 (8th Cir. 1983))); In re Grand Jury Proceedings, 716 F.2d 493,

502 (8th Cir. 1983) (“But in the instant case the affidavit as a whole consists of nothing

more than a stringing together of what appear to be vague and unsupported rumors,

suspicions, and bare conclusions of others.”).

291

Affidavit for Search Warrant, supra note 8, paras. 8-13; see Richards, 520 U.S. at 394

(“[T]he fact that felony drug investigations may frequently present circumstances

warranting a no-knock entry cannot remove from the neutral scrutiny of a reviewing court

the reasonableness of the police decision not to knock and announce in a particular case.”).

292

Balko, supra note 5.

293

Affidavit for Search Warrant, supra note 8, para. 15.

294

See id. para. 9.

295

See Balko, supra note 5.

296

Id.

297

Balko, supra note 7 (noting shoplifting charge from 2012 that was dismissed).

298

Id.

299

Id.

52 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

In fact, law enforcement refused a SWAT team in executing the warrant

against Taylor because she was such a low risk for flight or assault.

300

assess the need for a SWAT team, LMPD completes a “risk matrix” before

executing a warrant.

301

“A case has to meet a minimum score” to satisfy the

risk analysis.

302

On the night LMPD killed Taylor, law enforcement used

several SWAT to execute the warrants associated with Glover. This guaranteed

the presence of ambulances and medical personnel. Taylor, however, was

deemed not threatening enough to merit a SWAT team.

303

As one commentator

pointed out, “[i]nstead, she was subjected to all of the most dangerous aspects

of a SWAT raid, undertaken by officers in street clothes. There were no medics

nearby. In fact, an ambulance on standby was told to leave the scene an hour

before the raid.”

304

After she was shot, the police let her lie on the floor

unattended for twenty minutes before they rendered any aid.

305

Jaynes might defend by arguing that he used the word “these” drug dealers

in the warrant to state that this particular criminal organization was a flight

risk, was likely to destroy evidence, or was dangerous.

306

The argument fails

because Jaynes did not provide the particularity and specificity required to

support such claims.

307

The only specific information Jaynes provided was the

criminal history of Glover and the other suspects.

308

Jaynes provided no

evidence that any suspect had fled from police, resisted arrest, or displayed

assaultive behavior toward anyone.

309

Taylor had no criminal record, except

for a 2012 shoplifting charge that was dismissed.

310

Her only connection to this

investigation was the allegation that Glover received a package at her house

one time, that Glover used her address, and that cars (with no mention of who

was inside) traveled between her home and a drug house.

311

In all five search

warrants, her name is mentioned only twice.

Law enforcement might also argue that the illegality of the no-knock

warrant is irrelevant because the police claim that they knocked and announced

repeatedly before they rammed the door.

312

That claim, however, is hotly

300

See Balko, supra note 5 (noting LMPD assessment that Taylor did not “merit a

SWAT team”).

301

Id.

302

Id.

303

Id.

304

Id.

305

Id.

306

Balko, supra note 7.

307

Id.

308

Id.

309

Affidavit for Search Warrant, supra note 8, para. 15.

310

Balko, supra note 7.

311

Affidavit for Search Warrant, supra note 8, paras. 7-10.

312

Balko, supra note 7.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 53

contested.

313

A compelling video The New York Times produced, titled “How

the Police Killed Breonna Taylor,” shows that Taylor lived in a small

apartment complex.

314

Sixteen of her neighbors, some of whom had their

windows open, claim that they heard the gunfire but did not hear the police

announce or knock.

315

Even if the police should claim that their return of fire

was justified because they did not have to knock and announce as per the

warrant, the warrant was illegal, lacked probable cause for the search, and

lacked evidence to dispense with the knock-and-announce requirement.

LMPD officers who participated in the execution of the warrant at Taylor’s

home say that they knocked before they entered.

316

Why did they decide to

knock when they had a no-knock warrant for her address? LMPD officers say

that they knocked but did not announce because their “intent was to give her

plenty of time to come to the door.”

317

According to the officers, they banged

again and then announced themselves.

318

This does not cohere with the

statements of sixteen people who were in the building at the time.

319

Taylor’s

boyfriend, Kenneth Walker says that Taylor yelled, “Who is it?” twice but the

police did not respond.

320

On March 12, 2021, Taylor was dangerous enough to

justify a no-knock entry.

321

On March 13, 2021, she was not threatening

enough to warrant SWAT or a no-knock.

322

Which of these is the lie?

Walker called 911 during the botched raid. He told the dispatcher, “I don’t

know what happened, somebody kicked in the door and shot my girlfriend.”

323

It is improbable that Walker, who had no criminal record, would knowingly

shoot at police, then call 911 and feign ignorance.

324

It is plausible that Walker,

313

Id. (“Yet, according to Taylor’s attorneys, 16 people in the densely populated

neighborhood around Taylor say they heard the gunshots but never heard the police

announce themselves.”); Balko, supra note 5 (noting that only one witness heard police

announce themselves).

314

Malachy Browne, Anjali Singhvi, Natalie Reneau & Drew Jordan, How the Police

Killed Breonna Taylor, N.Y. TIMES, at 11:37-12:13 (Dec. 28, 2020),

https://www.nytimes.com/video/us/100000007348445/breonna-taylor-death-

cops.html?action=click&module=RelatedLinks&pgtype=Article.

315

Balko, supra note 7.

316

Browne et al., supra note 314, at 5:10-6:30.

317

Id. at 5:15-5:20.

318

Id. at 5:32-5:37.

319

Balko, supra note 7; see also Browne et al., supra note 314, at 5:20-6:09, 11:12-

12:20.

320

Browne et al., supra note 314, at 5:47-5:56.

321

Affidavit for Search Warrant, supra note 8, para. 15.

322

Browne et al., supra note 314, at 5:10-6:30.

323

Minyvonne Burke, Kenneth Walker, Police Can Both Claim Kentucky Law Protects

Conduct the Night of Deadly Breonna Taylor Raid, NBC NEWS (Sept. 25, 2020, 3:11 PM),

https://www.nbcnews.com/news/us-news/kenneth-walker-police-can-both-claim-kentucky-

law-protects-conduct-n1241010 [https://perma.cc/BPW9-J4DJ].

324

See Balko, supra note 7.

54 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

along with sixteen neighbors, did not hear the police announce if they

announced and rammed all in one motion. That would make the intrusion both

factually and legally indistinguishable from a no-knock raid.

325

C. No-Knock Warrants Have Become Routine

Unfortunately, LMPD is not the only police department violating Richards.

In 2018, legal commentator Radley Balko reviewed more than 105 no-knock

warrants served by the police department of Little Rock, Arkansas.

326

ninety-seven of those warrants, police failed to provide the level of specificity

necessary to satisfy Richards and dispense with the knock-and-announce

requirements.

327

Despite that, judges signed those warrants.

328

As of the time

of writing, not one Little Rock officer has been held accountable for illegal no-

knock warrants.

329

Balko notes that “[o]ne of the judges who signed off on a

large portion of those warrants is currently running for higher judicial

office.”

330

Although the detective who acquired many of those warrants “was

caught lying in one” and there is “evidence that he lied in others,” he “is still in

charge of the city’s drug investigations.”

331

Lack of accountability indicates

there is no incentive, at least in Little Rock, for police officers to stop pursuing

no-knock warrants.

Unfortunately, there is yet another example of a case strikingly like

Taylor’s:

[I]n 2015, a South Carolina drug team raided the home of Julian Betton, a

31-year-old black man, over a couple of low-level marijuana sales. After

battering down Betton’s door, the officers shot him nine times. Every

officer on the task force claimed that members of the raid team knocked

and announced multiple times before battering down the door. But

footage from Betton’s security camera showed they were lying. In

depositions for Betton’s lawsuit, one task force member testified,

wrongly, “It’s not the law to knock and announce. You know, it’s just

not.” Another said that even when the drug unit wasn’t given a no-knock

325

Id.

326

Id.

327

Id.

328

Id.

329

Linda Satter, 2 Suits on No-Knock Raids by Little Rock Police Dropped for Now,

ARK. DEMOCRAT GAZETTE (Aug. 28, 2020, 7:35 AM),

https://www.arkansasonline.com/news/2020/aug/28/2-no-knock-suits-dropped-for-now/

[https://perma.cc/GW6F-3D67]; Linda Satter, Suit on Little Rock Police’s No-Knock Raids

Dismissed at Plaintiffs’ Request, ARK. DEMOCRAT GAZETTE (Nov. 12, 2020, 7:23 AM),

https://www.arkansasonline.com/news/2020/nov/12/suit-on-lr-polices-no-knock-raids-

dismissed-at/ [https://perma.cc/THT2-PXSG].

330

Balko, supra note 7.

331

Id.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 55

warrant, they “almost always forcibly entered without knocking and

announcing, or simultaneously with announcing.”

332

Across the country, police departments treat no-knock warrants as a routine

occurrence in drug investigations,

333

rather than a unique tool to use in

circumstances where they have “a reasonable suspicion that knocking and

announcing their presence, under the particular circumstances, would be

dangerous or futile, or that it would inhibit the effective investigation of the

crime by, for example, allowing the destruction of evidence.”

334

D. The Slippery Slope to Ram-and-Announce Warrant Executions

The Supreme Court created the conditions that led to Breonna Taylor’s

death. In 2003, the Supreme Court decided United States v. Banks

335

and held

that waiting fifteen to twenty seconds before a forcible entry satisfied the

Fourth Amendment.

336

Three years later, in Hudson v. Michigan, the Court

gutted that waiting requirement by destroying the strongest legal incentive to

comply—the application of the exclusionary rule.

337

In Hudson, the Court

refused to apply the exclusionary rule to evidence obtained in violation of the

knock-and-announce rule.

338

Justice Antonin Scalia, writing for the majority in

a five-to-four decision, liberated the Court from the straight jacket of centuries

of precedents and fealty to the sanctity of the home.

339

Setting centuries of

precedent aside, Scalia concocted an unprecedented societal cost-benefit

analysis that empowered him to achieve three things: (1) identify the “real”

interest at stake, (2) reframe the issue before the Court, and (3) select the

variables to be weighed in the balance and assign those variables meaning.

340

Dismissing the defendant’s interest in protection from unannounced home

intrusions, the Court unilaterally found that the defendant’s real interest was

preventing the state from seeing or taking evidence described in the warrant,

332

Id.

333

See id.

334

Richards v. Wisconsin, 520 U.S. 385, 394 (1997).

335

540 U.S. 31 (2003).

336

Id. at 40.

337

Hudson v. Michigan, 547 U.S. 586, 594 (2006) (holding that “the knock-and-

announce rule has never protected . . . one’s interest in preventing government from

[seizing] evidence described in a warrant,” and thus, “the exclusionary rule is

inapplicable”); id. at 605 (Breyer, J., dissenting) (“[T]he Court destroys the strongest legal

incentive to comply with the Constitution’s knock-and-announce requirement.”).

338

Id. at 594 (majority opinion).

339

See id. at 589.

340

See id. at 593-96 (holding that purpose of knock-and-announce requirement is to

prevent provoking violence against police officers and prevent destruction of property,

while purpose of exclusionary rule is to protect home from warrantless searches).

56 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

namely “crack” cocaine.

341

Having identified the “real” interest at stake, the

Court raised the evil specter of the boogeyman to tip the scales. According to

the Court, “the risk of releasing dangerous criminals into society” greatly

outweighed less onerous alternatives to disincentivizing police excess.

342

As it weighed the social interests at stake, the Court foresaw that

unannounced entries had the potential to provoke violence from a startled

resident acting in self-defense—the very tragedy that befell Breonna Taylor.

343

The Court stated, “One of those interests is the protection of human life and

limb, because an unannounced entry may provoke violence in supposed self-

defense by the surprised resident.”

344

In disregard of this foreseeable danger,

the Court reasoned that civil rights lawsuits and increased professionalism in

policing would adequately deter police excess.

345

Despite the Court’s sanguine

outlook, it had so thoroughly fortified qualified immunity that even the state of

Michigan, one of the parties to the proceeding, admitted that “damages may be

virtually nonexistent.”

346

The dissent also pointed out that “alternative State

mechanisms for enforcing the Fourth Amendment[],” including the desire to

avoid civil damages, “had prov[en] ‘worthless and futile.’”

347

The Court’s

sanguine faith in improved police discipline and wide-ranging reforms in

police education, training, and supervision is of no comfort to Tamika Palmer,

Breonna Taylor’s mother, or the thousands of other victims police kill yearly.

Osagie K. Obasogie makes several points that illustrate how Hudson

facilitated Taylor’s death. Using the work of Lauren Edelman, Obasogie

developed a theoretical framework that exposes how seemingly neutral

doctrinal approaches and legal rules that should constrain police excess

actually facilitate the violence the Fourth Amendment should prevent

348

(1) vague and ambiguous legal standards; (2) [police] organizations’

development of symbolic policies that suggest compliance in response to

new and ambiguous legal standards; and (3) a response by the courts that,

341

Id. at 596 (noting that deterring police misconduct depends on strength of incentive to

commit forbidden act and that “ignoring knock-and-announce can realistically be expected

to achieve absolutely nothing except the prevention of destruction of evidence”).

342

See id. at 595 (“The costs here are considerable. In addition to the grave adverse

consequence that exclusion of relevant incriminating evidence always entails (viz., the risk

of releasing dangerous criminals into society), imposing that massive remedy for a knock-

and-announce violation would generate a constant flood of alleged failures to observe the

rule . . . .”); Balko, supra note 7 (“[Taylor’s] death was the entirely foreseeable consequence

of a police department feeling free to callously and carelessly ignore the Fourth Amendment

and the Supreme Court’s decision to prioritize the integrity of drug prosecutions over the

Fourth Amendment right of Americans to feel safe and secure in their homes.”).

343

Hudson, 547 U.S. at 594.

344

Id.

345

Id. at 599.

346

Id. at 610 (Breyer, J., dissenting).

347

Id. at 609 (quoting Mapp v. Ohio, 367 U.S. 643, 652 (1961)).

348

See Obasogie, supra note 29, at 782.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 57

instead of creating their own independent standards, affirms the [police’s]

symbolic gestures as adherence to law.

349

In Hudson, the Court abandoned precedent, opting instead for a vague and

ambiguous cost-benefit analysis that allowed the Court to privilege the

increased professionalism of the police over the Fourth Amendment safety and

sanctity protections against forceful government intrusion.

350

Instead of

creating rules consistent with the Fourth Amendment, the Court credited police

efforts toward reform.

351

The reformist efforts of the police became the

baseline of acceptable conduct under the Constitution. In this way, the police

set the standards for their own conduct—the fox runs the henhouse. In essence,

the Court proclaimed: We cannot let dangerous crack dealers escape necessary

punishment when police are performing so well, and in the off chance that

police misbehave, civil law will better regulate their behavior, not the Fourth

Amendment. It should also be noted that Scalia’s use of a cost-benefit analysis

allowed the majority to draw from racial imaginaries, particularly stereotypes

about crack cocaine dealers, when articulating the harm.

According to Obasogie, when the Court addressed police excess, it

abdicated its role as the gatekeeper of the Fourth Amendment and instead

created legal doctrine structured to elevate the police as “experts” about which

applications of force, such as dynamic entries, violate the Fourth

Amendment.

352

In Hudson, increased police professionalism trumped a closer

adherence to the safety and security of the home.

353

Obasogie’s theoretical

framework exposes how Hudson created the conditions that led to Taylor’s

death. The Court’s doctrinal approach and embrace of a cost-benefit analysis

“allow[ed] ostensibly ‘neutral’ legal rules” and doctrinal approaches to

predictably lead to avoidable deaths.

354

Hudson opened the door to an increase

in the incidences and degrees of police violence, hastening the militarization of

policing and the tragedy of Breonna Taylor.

Indeed, Hudson exemplifies the Court’s ability to facilitate death by

incentivizing callousness and recklessness in police culture—what Frank Rudy

Cooper calls “deregulation of the police.”

355

When the police know both that

they can ignore the knock-and-announce requirements without risking

suppression of the evidence and that qualified immunity erects a very high

barrier to police accountability, they lack incentive to follow the entry

349

Id. (citation omitted).

350

Hudson, 547 U.S. at 594-96.

351

Id. at 599 (“There have been ‘wide-ranging reforms in the education, training, and

supervision of police officers.’” (quoting SAMUEL WALKER, TAMING THE SYSTEM: THE

CONTROL OF DISCRETION IN CRIMINAL JUSTICE 1950-1990, at 51 (1993))).

352

Obasogie, supra note 29, at 783.

353

Hudson, 547 U.S. at 594-96.

354

See Obasogie, supra note 29, at 774.

355

See Frank Rudy Cooper, Intersectionality, Police Excessive Force, and Class, 89

GEO. WASH. L. REV. 1452, 1491-95 (2021).

58 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

requirements.

356

Hudson blurred the line between no-knock and knock-and-

announce entries because it eliminated suppression as a repercussion,

consequently disincentivizing police caution, and thereby, increasing the risk

of injury during execution of warrants.

357

Hudson, therefore, became part of

the structural apparatus that disincentivizes police officers to exercise care.

358

The Supreme Court’s refusal to apply the exclusionary rule incentivizes

police, prosecutors, and judges to ignore the knock-and-announce requirement

entirely.

359

Immunizing law enforcement, including police and prosecutors,

from material consequences and punishment for excess incentivizes

callousness in the execution of warrants and carelessness in their acquisition.

360

Gutting the exclusionary rule causes a lower exercise of care in surveillance,

investigation, verification, and the exercise of caution when executing

warrants, all of which contributed to Taylor’s death.

361

As Radley Balko

argues, Taylor’s death, like many others, was no unimaginable accident.

362

Rather, it was the foreseeable consequence of legal doctrine that “prioritize[s]

the integrity of drug prosecutions over the Fourth Amendment right . . . to feel

safe and secure in the[] home.”

363

In this way, Hudson “predictably le[d] to

avoidable deaths.”

364

Given the proliferation of injuries, deaths, Stand Your Ground laws, and

unbridled gun ownership,

365

the application of the exclusionary rule to

evidence obtained in violation of the knock-and-announce requirement and the

amount of time that should elapse before police resort to ramming demand the

Court’s review. Furthermore, the practice of ram-and-announce begs for the

continued use of police cameras, particularly when executing search warrants.

356

See Hudson, 547 U.S. at 609 (Breyer, J., dissenting).

357

This blurred line can be observed in similar levels of violence in the execution of both

kinds of warrants. Sack, supra note 26, at 17 (noting one study where “47 civilians and five

officers died as a result of the execution of knock-and-announce searches, while 31 civilians

and eight officers died in the execution [sic] no-knock warrants”).

358

Carbado, supra note 24, at 129 (discussing other Supreme Court precedents that act as

structural barriers to effective and fair policing).

359

See Balko, supra note 7 (“After the court’s ruling in Hudson, those of us who worried

about these tactics warned that without any real deterrent, police, judges and prosecutors

would eventually ignore the knock-and-announce rule entirely.”).

360

Id.

361

Id.

362

Id.

363

Id.

364

See Obasogie, supra note 29, at 771.

365

See supra notes 44-45; Sabrina Tavernise, Gun Sales Surge in United States Torn by

Distrust: A Domestic ‘Arms Race,’ N.Y. TIMES, May 30, 2021, at A1 (reporting that while

federal government does not track exact number of guns sold, over 400 million guns are

estimated to be in circulation and data from 2020 suggest that 39% of American households

own guns).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 59

Where officers fail to engage their cameras, swift disciplinary action should

follow to discourage the practices of ramming and announcing in one motion.

In a 2015 study, criminologist Brian Schaefer studied LMPD’s rampant use

of ram-and-announce.

366

Schaefer “accompanied [LMPD] on [seventy-three]

raids in a city he called ‘Bourbonville.’ Sam Aguiar, an attorney for Taylor’s

family . . . confirmed that the city in the study is Louisville.”

367

In each of the

seventy-three search warrant entries Schaefer observed, LMPD rammed and

announced in one motion with the first hit on the door.

368

As one detective

explained, “As long as we announce our presence, we are good. We don’t want

to give them anytime [sic] to destroy evidence or grab a weapon, so we go fast

and get through the door quick.”

369

Schaefer observed that “[t]he distinction

between . . . conducting a knock-and-announce raid versus a no-knock raid is

minimal in practice.”

370

Ironically, in cases involving evidence of actual

danger, police broke from ram-and-announce protocol and announced their

presence before ramming the door.

371

In Taylor’s case, the overwhelming evidence indicates that the police made

no effort to identify themselves, much less show the search warrant.

372

Walker

has stated that the “police beat on the door for 30 to 45 seconds without

identifying themselves.”

373

Assuming that such notice was given, the question

remains: Exactly how much time must elapse before the police breached the

door? What is a reasonable amount of time in the dead of night?

The LMPD’s common practice of ram-and-announce might also explain the

absence of police camera footage in the Taylor case. If the police rammed and

announced in one motion, they would have run afoul of waiting-period

requirements between announcing their presence and ramming the door.

Unfortunately, the public will never know exactly what happened at Taylor’s

door on the night she was executed because all the officers involved have had

time to collude with each other and their lawyers. Still, is fifteen seconds

enough time to come to your senses, get dressed, and get to your door in the

dead of night? The Court’s review would be particularly meaningful here

366

Brian Patrick Schaefer, Knocking on the Door: Police Decision Points in Executing

Search Warrants 42 (May 2015) (Ph.D. dissertation, University of Louisville) (available at

https://ir.library.louisville.edu/cgi/viewcontent.cgi?article=3029&context=etd).

367

Balko, supra note 7.

368

Schaefer, supra note 366, at 128.

369

Id.

370

Id. at 131.

371

See id. at 129.

372

Balko, supra note 7 (highlighting that Walker asserts police did not identify

themselves and that eleven of Taylor’s neighbors “heard the gunshots but never heard the

police announce themselves”).

373

Id.; see also Browne et al., supra note 314, at 6:15-6:20 (narrating that police knocked

and waited for around forty-five seconds).

60 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

because of the regularity with which police announce and ram the door,

particularly in Stand Your Ground states.

374

IV. THE LACK OF POLICE ACCOUNTABILITY

The killing of Breonna Taylor exposed systemic structural problems in

policing, particularly the pervasive phenomenon of failing to hold police

accountable for their excess. This Part exposes the structural impediments to

truth seeking when the police are suspects, particularly in the Taylor case. This

Part, therefore, provides additional evidence of the infliction of cultural trauma

discussed in Part V.

A. The Police Were Not Held Accountable for Their Actions

As the Supreme Court has repeatedly indicated, truth is essential for

justice.

375

An independent investigatory agency with prosecutorial power

should investigate Jaynes and Mattingly. The search warrant that authorized

the invasion of Taylor’s home must have a full public vetting. More

specifically, Jaynes’s affidavit must be explained to the public, preferably in an

adversarial setting where one narrative is not afforded full weight with no

opportunity for cross-examination, as is so often the case with one-sided grand

374

See Keturah Herron, No-Knock Warrants and the ‘Castle Doctrine,’ ACLU KY. (Dec.

18, 2020, 3:30 PM), https://www.aclu-ky.org/en/news/no-knock-warrants-and-castle-

doctrine [https://perma.cc/TP7Y-JGM6] (“No-knock warrants and the Castle Doctrine

blatantly contradict each other. Together, they create deadly situations for civilians and law

enforcement.”).

375

For instance, in Giglio v. United States, the Court reiterated that “deliberate deception

of a court and jurors by the presentation of known false evidence is incompatible with

‘rudimentary demands of justice.’” 405 U.S. 150, 153 (1972); see also, e.g., Kansas v.

Ventris, 556 U.S. 586, 593 (2009) (noting “need to prevent perjury” as way “to assure the

integrity of the trial process” (quoting Stone v. Powell, 428 U.S. 465, 488 (1976))); James v.

Illinois, 493 U.S. 307, 311 (1990) (“There is no gainsaying that arriving at the truth is a

fundamental goal of our legal system.” (quoting United States v. Havens, 446 U.S. 620, 626

(1980))); Oregon v. Hass, 420 U.S. 714, 722 (1975) (“We are, after all, always engaged in a

search for truth in a criminal case so long as the search is surrounded with the safeguards

provided by our Constitution.”); Melanie D. Wilson, An Exclusionary Rule for Police Lies,

47 AM. CRIM. L. REV. 1, 55 (2010) (“Because truth-distorting police lies are destructive of

the core aims of a fair and effective criminal justice system, the exclusionary rule should be

modified for cases hinging on police credibility.”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 61

jury presentations involving police killings, like those of Michael Brown, Eric

Garner, Tamir Rice, and Breonna Taylor.

376

Taylor’s killing severely undermined the credibility of law enforcement,

leaving the citizenry in ever-increasing doubt that the police can ensure public

safety and security.

377

The perjured statements in the affidavit and the absence

of probable cause must be fully explained to the public. The complete results

of the investigation should be provided in full detail so they can be scrutinized

by political activists, scholars, experts, and the public. Given the results of

local prosecutorial efforts and comments made by Kentucky Attorney General

Cameron regarding charges recommended, the federal government has the

least conflict of interest in the context of an independent probe.

378

However,

the federal government must address factual findings local law enforcement

made, which may include evidence obtained through harassment, intimidation,

and deliberate efforts to make witnesses contradict their stories. Locally

obtained narratives may have been concocted after bad actors have had time to

collude with attorneys and coordinate their stories with one another and with

376

See Roger A. Fairfax, Jr., The Grand Jury’s Role in the Prosecution of Unjustified

Police Killings—Challenges and Solutions, 52 HARV. C.R.-C.L. L. REV. 397, 408-10 (2017)

(noting that in grand jury proceedings, prosecutors have virtually “limitless ability to shape

the presentation of the evidence” but function more as an advocate for police in police

killing cases); Nicole Smith Futrell, Visibly (Un)Just: The Optics of Grand Jury Secrecy and

Police Violence, 123 DICK. L. REV. 1, 25 (2018) (“[U]nlike the grand jury, petit juries

receive the evidence through an adversarial trial process that is tested by defense counsel

and presided over by a judge in a public proceeding. The grand jury operates with no judge,

defense counsel, or public spectators.” (footnotes omitted)).

377

See Vida B. Johnson, Prosecutors Who Police the Police Are Good People, 87

FORDHAM L. REV. ONLINE 13, 16 (2018) (“The failure to police the police undermines the

community’s trust in law enforcement . . . .”).

378

Joe Sonka, Breonna Taylor Grand Jurors File Petition to Impeach Attorney General

Daniel Cameron, COURIER J. (Louisville) (Jan. 23, 2021, 10:23 AM), https://www.courier-

journal.com/get-access/?return=https%3A%2F%2Fwww.courier-

journal.com%2Fstory%2Fnews%2Fpolitics%2F2021%2F01%2F22%2Fbreonna-taylor-

grand-jurors-file-petition-to-impeach-daniel-cameron%2F6672043002%2F. Three grand

jurors who heard the presentation of evidence against the officers who killed Taylor have

filed a petition to impeach Attorney General Cameron. Id. They allege that “Cameron

breached public trust and failed to comply with his duties by misrepresenting the findings of

the grand jury in the Taylor case.” Id. Specifically, the petition contends that Cameron told

the public that “his office . . . walked the Grand Jury through ‘every homicide offense,’”

when in fact the prosecution did not mention homicide to the grand jury and only presented

three wanton endangerment charges against one officer. Id. In addition, the petition alleges

that Cameron “‘misled the public’ when he said the grand jury agreed that police were

‘justified’ in returning fire.” Id. Further, in response to Cameron’s public statements, a

grand juror previously filed a motion seeking a declaration that members of the grand jury

have the right to “speak freely about the case.” Id. That motion “accused Cameron of using

the grand jurors ‘as a [political] shield [against] accountability . . .’ for his prosecutorial

decisions.” Id.

62 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

other evidence. Moreover, the standards for a federal claim are exceptionally

high.

379

Consequently, the results of a federal investigation are uncertain.

In addition to the Taylor affidavit, all of Jaynes’s and Mattingly’s affidavits

and any affidavits in which they have participated should be thoroughly

investigated. Whether the misrepresentations in Jaynes’s affidavit were

intentional or negligent, they contributed to Taylor’s death. Attorney General

Cameron’s Search Warrant Task Force

380

could start its tenure with a review of

Taylor’s warrant and any warrants in which Jaynes or Mattingly had input.

Such a gesture would assure the public that the review board is not an empty

symbolic gesture meant to preempt and appease public outcry but is rather a

genuine effort to make much-needed structural changes in policing and, most

importantly, a small step toward reforming the normative principles of

policing.

B. No Video Record of the Botched Raid Exists

On September 23, 2020, Cameron publicly stated none of the officers who

executed the warrant on Taylor’s home wore their body cameras or had them

turned on.

381

To date, Cameron has not explained the absence of evidence from

the officers’ body cameras. The absence of a video record is a severe

impediment to truth seeking that must be fully explained to the public. Had a

video recording been available, the public could have been assured that the

executing officers knocked and announced before invading Taylor’s home.

Video provides much-needed proof for suppression hearings and civil damages

claims. Most importantly, video subjects the excessive use of force to the

precious antiseptic light of day, providing the transparency the public needs to

monitor and critique police excess.

382

In cases where officers fail to use their

cameras, swift disciplinary action must follow. Body cameras also benefit

379

Yvonne Elosiebo, Implicit Bias and Equal Protection: A Paradigm Shift, 42 N.Y.U.

REV. L. & SOC. CHANGE 451, 462 (2018) (“The Supreme Court holds those claiming racial

discrimination by a government entity to a very high standard.”).

380

Tessa Duvall, Kentucky Warrant Task Force Created After Breonna Taylor’s Death

Finally Meets, COURIER J. (Louisville) (May 24, 2021, 4:36 PM), https://www.courier-

journal.com/story/news/local/breonna-taylor/2021/05/24/kentucky-search-warrant-task-

force-breonna-taylor-death-daniel-cameron/5241029001/.

381

Courtney Hayden, 5 Things We Learned About the Breonna Taylor Case from Daniel

Cameron’s Announcement, 4WWL (Sept. 24, 2020, 5:03 AM),

https://www.wwltv.com/article/news/investigations/breonna-taylor-daniel-cameron-

investigation-what-we-know/417-8827a51f-b540-4619-99bf-8489658be660

[https://perma.cc/GLU7-RGZK]; see also NAACP LEGAL DEF. & EDUC. FUND, INC., JUSTICE

DENIED: A CALL FOR A NEW GRAND JURY INVESTIGATION INTO THE KILLING OF BREONNA

TAYLOR 7 (2020), https://www.naacpldf.org/wp-content/uploads/LDF_

10272020_BreonnaTaylor-11.pdf [https://perma.cc/52XN-WPCB] (noting that, despite

evidence indicating that officers present for Taylor’s search warrant execution were wearing

body cameras, prosecutors did not present body camera footage or explain its absence).

382

Cook, supra note 57, at 614-15.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 63

police by protecting them from false claims.

383

A recent Marist poll found that

90% of Americans think that body cameras for police do “more good than

harm.”

384

As a result of nationwide political activism and uprisings surrounding

Taylor’s killing, the City of Louisville passed Breonna’s Law, which banned

no-knock warrants, required officers to activate their body cameras during the

execution of a search warrant, and set a minimum time period that cameras

must be operative before and after the execution of a warrant.

385

Despite

decades of clarion calls for reform from both sides of the political spectrum

about decreased militarization of the police, concern for civil liberties, and the

disproportionate use of no-knock warrants in marginalized communities, it

took nationwide political activism surrounding Taylor’s killing for at least

eighty-four similar proposals in no fewer than thirty-three states to “monitor,

curtail, or ban no-knock warrants.”

386

According to one study, roughly two-

thirds of Americans support a federal ban on no-knock warrants, including

75% of Democrats and 52% of Republicans.

387

This is particularly salient

where 44% of adults in the United States live in a household with a gun.

388

Despite widespread support, the Kentucky legislature passed a watered-down

version of Breonna’s Law that regulates no-knock warrants but does not ban

them.

389

The banning or regulation of no-knock warrants is a bare minimum in

383

Roseanna Sommers, Will Putting Cameras on Police Reduce Polarization?, 125

YALE L.J. 1304, 1310 (2016) (“[B]ody cameras offer hard facts that could potentially

exonerate officers falsely accused of misconduct.”).

384

Marist Inst. for Pub. Op., NPR/PBS NewsHour/Marist Poll: Race Relations in the

United States, MARISTPOLL (May 17, 2021), https://maristpoll.marist.edu/polls/npr-pbs-

newshour-marist-poll-race-relations-in-the-united-states/ [https://perma.cc/6CL7-RCBE].

385

Barbara Campbell, No-Knock Warrants Banned in Louisville in Law Named for

Breonna Taylor, NPR (June 11, 2020, 9:40 PM), https://www.npr.org/sections/live-updates-

protests-for-racial-justice/2020/06/11/875466130/no-knock-warrants-banned-in-louisville-

in-law-named-for-breonna-taylor [https://perma.cc/Z36D-CZ6B].

386

P.R. Lockhart, After Breonna Taylor’s Death, Activists Fought to Ban Surprise Police

Raids. One Year Later, They’re Winning, GUARDIAN (Mar. 26, 2021, 5:00 AM),

https://www.theguardian.com/global-development/2021/mar/26/breonna-taylor-no-knock-

warrant-bans-us-police-experts [https://perma.cc/F8EF-692G].

387

Eli Yokley, Both Democratic and GOP Voters Back Bans on Chokeholds, No-Knock

Warrants, MORNING CONSULT (June 24, 2020, 6:00 AM),

https://morningconsult.com/2020/06/24/polling-policing-reform-chokehold-floyd/

[https://perma.cc/FUP6-RXYW].

388

Katherine Schaeffer, Key Facts About Americans and Guns, PEW RSCH. CTR. (May

11, 2021), https://www.pewresearch.org/fact-tank/2021/05/11/key-facts-about-americans-

and-guns/ [https://perma.cc/RP6T-UW8T].

389

See Rachel Treisman, Kentucky Law Limits Use of No-Knock Warrants, a Year After

Breonna Taylor’s Killing, NPR (Apr. 9, 2021, 3:19 PM),

https://www.npr.org/2021/04/09/985804591/kentucky-law-limits-use-of-no-knock-warrants-

a-year-after-breonna-taylors-killin [https://perma.cc/ZD6L-5H9P].

64 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

substantive structural transformation.

390

Additionally, mandatory video footage

would enable police to review all warrant executions for compliance and

targeted reform.

C. The Police Had Time to Craft Narratives of Innocence

Jaynes, Mattingly, and other officers involved in police excess

investigations have had far too long to, as law professor Kenneth Lawson

argues, “get their story straight.”

391

As a result, the public may never know the

truth about what happens during police excess. The amount of time police

suspects have to get their story straight and the circumstances under which

they provide statements (namely in the presence of, and after long consultation

with, an attorney) present structural impediments to truth seeking and further

corrupt the investigative process.

392

Unlike other criminal suspects, police

suspects are often given a cooling-off period that provides substantial time and

opportunity to confer with lawyers and to coordinate their stories with other

officers and evidence.

393

This was likely true for both Jaynes and Mattingly

given that the LMPD’s collective bargaining agreement guarantees officers a

390

Tessa Duvall & Darcy Costello, In Cities and States Across the US, Breonna’s Law Is

Targeting Deadly No-Knock Warrants, COURIER J. (Louisville) (Mar. 17, 2021, 4:22 PM),

https://www.courier-journal.com/story/news/local/breonna-taylor/2021/03/12/spread-of-

breonnas-law-across-us-has-become-policy-legacy/4642996001/ (quoting Peter Kraska, an

Eastern Kentucky University professor and expert on police raids, who contends that

banning no-knock warrants is the “minimum of what needs to happen”).

391

Kenneth Lawson, Police Shootings of Black Men and Implicit Racial Bias: Can’t We

All Just Get Along, 37 U. HAW. L. REV. 339, 362 (2015) (suggesting that police officers

involved in shootings of unarmed Black victims often have “substantial time” to “get their

story right”); see also Kevin M. Keenan & Samuel Walker, An Impediment to Police

Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U.

PUB. INT. L.J. 185, 212 (2005) (“Delays in the investigation of possible officer misconduct

are intolerable. There is a widespread impression that delays in investigations allow officers

time to collude to create a consistent, exculpatory story.”).

392

Levine, supra note 55, at 1200, 1224-26 (“[P]olice suspects may be questioned only

during the day; . . . they may be questioned only by a limited number of

interrogators; . . . they must be given time to attend to their personal needs; . . . they may not

be threatened, subjected to abusive language, or induced to confess through untrue promises

of leniency; and . . . their choice to inculpate themselves must not be conditioned on losing

their job or benefits.”).

393

Id. at 1236.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 65

forty-eight hour written notice of a complaint alleging misconduct prior to

interrogation.

394

Time affords police suspects an opportunity to craft innocent narratives that

justify excessive use of force,

395

like the omnipresent claim that he was

“reach[ing] for his waistband,” a perennial favorite police frequently deploy to

cast the Black victim as the villain and to frame a murder as carefully

calibrated with a justifiable and reasonable use of deadly force.

396

As Paul

Butler argues, “the police will take advantage of all the extra due process they

get . . . to concoct an alternative version of events.”

397

In addition to time, police suspects often have opportunity to calibrate their

narratives “with other evidence, including dispatch recordings; video footage;

dashboard camera and body camera recordings; forensics tests; autopsy reports

that document bullet entries and exits; and other witnesses’ accounts.”

398

Typically, non-officer suspects do not have the evidence pending against them

before their initial interview and do not have the luxury of having an attorney

present during interrogation.

399

Non-officer suspects receive the evidence after

394

COLLECTIVE BARGAINING AGREEMENT BY AND BETWEEN LOUISVILLE/JEFFERSON

COUNTY METRO GOVERNMENT AND RIVER CITY FRATERNAL ORDER OF POLICE LODGE #614,

POLICE OFFICERS AND SERGEANTS, art. 17, § 3(A), at 25 (2020) [hereinafter LMPD

COLLECTIVE BARGAINING AGREEMENT], https://louisvilleky.gov/human-

resources/document/fop-police-offc-sgt-cba-10220-63021 [https://perma.cc/WK58-VAJ3].

These “cooling-off periods” are often mandated in law enforcement collective bargaining

agreements. Levine, supra note 55, at 1236 (noting that many jurisdictions have Law

Enforcement Officers’ Bill of Rights which “contain a waiting period before an officer may

be questioned”). For example, the Louisville Metro Police Department collective bargaining

agreement contains an Officer Bill of Rights, which guarantees officers a cooling-off period.

See LMPD COLLECTIVE BARGAINING AGREEMENT, supra, art. 17, § 3(A), at 25 (stating no

officer “shall be subjected to interrogation in a departmental matter involving alleged

misconduct on his or her part, until forty-eight (48) hours have expired from the time the

request for interrogation is made to the accused officer, in writing”). That guarantee

suggests that Jaynes and Mattingly were not immediately questioned following Taylor’s

killing.

395

Lawson, supra note 391, at 362; see also Keenan & Walker, supra note 391, at 212

(“Delays in the investigation of possible officer misconduct are intolerable. There is a

widespread impression that delays in investigations allow officers time to collude to create a

consistent, exculpatory story.”).

396

See Cook, supra note 57, at 609 & n.194 (“A black man allegedly reaching for a gun

is a perennial claim in many unarmed shooting cases.”).

397

Paul Butler, Opinion, The Police Officers’ Bill of Rights Creates a Double Standard,

N.Y. TIMES (June 27, 2015, 9:13 PM),

http://www.nytimes.com/roomfordebate/2015/04/29/baltimore-and-bolstering-a-police-

officers-right-to-remain-silent/the-police-officers-bill-of-rights-creates-a-double-standard

(describing alleged preferential treatment of officers in Freddie Gray case as “thwart[ing]

transparency and accountability”); see also Levine, supra note 55, at 1258 (explaining that

police suspects benefit from “informal favoritism” and “procedural advantages”).

398

Cook, supra note 57, at 593-94.

399

Id. at 594.

66 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

they have been charged and after arraignment.

400

Moreover, ordinary

“defendants are not entitled to exculpatory materials until at or near the time of

trial.”

401

Giving the police time to confer with attorneys and coordinate their

stories with others and with the evidence is a structural advantage for police

suspects and a structural impediment to the truth-seeking function of

investigations. This is how police protect themselves from the confession-

inducing techniques they impose on others.

402

The cooling-off period as an impediment to truth seeking is just one

example of the structural advantages police enjoy when accused of

wrongdoing. This advantage is what Kate Levine calls “[t]he [s]ystemic

[p]erils [c]reated by [a]dditional [i]nterrogation [p]rotections for [p]olice.”

403

Both police and prosecutors represent “the same side of the adversarial wall”;

they constitute a fraternity dedicated to protecting the thin blue line.

404

When

law enforcement investigates itself, the inherent conflict of interest is reflected

in the lack of integrity of the facts gathered and a fundamental lack of clarity

about what happened.

All these factors contribute to a fundamental lack of trust in the criminal

legal process. The process that enabled police to barge into Taylor’s home at

1:00 a.m. with scant evidence of probable cause has allowed her killers to walk

the streets freely since the time of her death and acquire book deals for having

participated in her killing. No questions have been asked of Jaynes or

Mattingly in an adversarial setting and their cooling-off period has given them

a structural advantage. These advantages call into question the legitimacy of

the facts and further undermine the legitimacy of the legal process.

V. POLICE VIOLENCE AND PEOPLE OF COLOR

The impact of the killing of Breonna Taylor on the public, particularly the

precariat, must be understood in a larger historical context of law

enforcement’s power to inflict humiliation, injury, and torture on vulnerable

bodies as a form of racialized taming and social control that feeds back as “law

and order.”

405

The ability of white heteropatriarchal power to put certain

bodies “back into place”—that place being death, submission, entertainment,

or spectacle—is an organizing principle of policing, the prison-industrial

complex, and the license courts grant to law enforcement to inflict its will.

406

400

Id.

401

Id.

402

Levine, supra note 55, at 1204.

403

Id. at 1227.

404

See Cook, supra note 57, at 592.

405

See BUTLER, supra note 54, at 17-18; see also Roberts, supra note 54, at 18 (“Torture

has been accepted as a technique of racialized carceral control.”).

406

Cooper, supra note 355, at 1491, 1510-11 (arguing that United States’ neoliberal

race-class structure incentivizes “[t]he Court’s [d]eregulation of the [p]olice,” increased

incarceration, and “police abuse of poor black and brown people”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 67

A. Police Shootings and State-Sanctioned Violence

LMPD gunned Taylor down during a global pandemic and her killing

occurred alongside the high-profile murders of George Floyd and Ahmaud

Arbery.

407

Detective Derek Chauvin lodged his knee in the soft part of Floyd’s

neck and strangled him for over nine minutes while smirking and staring

directly into a camera as he was being filmed in broad daylight.

408

Self-

appointed vigilantes and neighborhood watchmen, one of whom was a retired

police officer, hunted Arbery down in a safari-style killing while he was

jogging in a Georgia suburb.

409

For over ten weeks, Arbery’s killers remained

free.

410

Law enforcement, including one prosecutor’s office, condoned

Arbery’s killers because they were protecting their neighborhoods.

411

Unlike

the killings of Arbery and Floyd, the killing of Taylor was not recognized until

several high-profile celebrities drew national attention to her death.

412

Had it

not been for political activism and the national outcry, Taylor’s death would

have been memorialized in a fraudulent police report that was prepared after

407

Richard Fausset, Tariro Mzezewa & Rick Rojas, Three in Georgia Are Found Guilty

in Arbery Murder, N.Y. TIMES, Nov. 25, 2021, at A1 (discussing convictions in the murder

of Ahmaud Arbery); Laurel Wamsley, Derek Chauvin Found Guilty of George Floyd’s

Murder, NPR (Apr. 20, 2021, 5:37 PM), https://www.npr.org/sections/trial-over-killing-of-

george-floyd/2021/04/20/987777911/court-says-jury-has-reached-verdict-in-derek-

chauvins-murder-trial [https://perma.cc/MJ32-YPVR] (discussing conviction in murder of

George Floyd).

408

Wamsley, supra note 407 (“Floyd died after Chauvin pressed his knee on Floyd’s

neck for 9 minutes and 29 seconds as Floyd lay facedown, hands cuffed behind his back.”).

409

Richard Fausset, A Year Later, Mourning the Killing of a Black Jogger in Georgia,

N.Y. TIMES, Mar. 1, 2021, at A12; Emily Green, The Georgia Police Department That Led

Arbery Shooting Case Has a Troubled Past, NPR (May 13, 2020, 4:07 PM),

https://www.npr.org/2020/05/13/855611553/a-troubled-past-of-the-police-department-that-

led-the-arbery-case [https://perma.cc/LLP3-JYT5].

410

Mindy Wadley, Timeline in Shooting Death of Ahmaud Arbery, What You Should

Know About Trial of Accused Killers, FIRST COAST NEWS (Oct. 13, 2021, 10:38 AM),

https://www.firstcoastnews.com/article/news/crime/ahmaud-arbery/ahmaud-arbery-death-

timeline-accused-killers-travis-mcmichael-gregory-mcmichael-william-roddy-bryan/77-

1ef4a227-fcd2-426c-b4da-b238a3c24fca (stating that Gregory and Travis McMichael were

not arrested until May 7, 2020, even though they murdered Arbery on February 23, 2020).

411

Letter from George E. Barnhill, Dist. Att’y, Waycross Jud. Cir., to Tom Jump,

Captain, Glynn Cnty. Police Dep’t 2-3 (Apr. 2, 2020), https://int.nyt.com/data

/documenthelper/6916-george-barnhill-letter-to-glyn/b52fa09cdc974b970b79/optimized

/full.pdf [https://perma.cc/QN8N-GWER] (asserting that Arbery’s now-convicted

murderers’ actions of “following, in ‘hot pursuit,’” was “perfectly legal,” because “Arbery

initiated the fight” and finding “insufficient probable cause to issue arrest warrants at this

time”).

412

Oppel Jr. et al., supra note 3 (noting that, although Taylor was killed in March 2020,

her case only began to garner national attention in May of that year, after which she became

“the center of campaigns from celebrities and athletes”).

68 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

her death that stated that she was not injured, and no force was used.

413

Additionally, Kenneth Walker would be languishing in prison for attempted

murder of an officer.

Being Black is fatally dangerous in the United States.

414

Taylor’s needless

death was one of many during police raids.

415

In March 1994, Boston police

barged into the wrong apartment and assaulted seventy-five‐year-old Accelyne

Williams, who died soon after from heart failure.

416

“No officers were

charged.”

417

In May 2010, Detroit police shot and killed seven‐year-old Aiyana

Stanley-Jones as she slept next to her grandmother.

418

Charges against the

officer who killed Stanley-Jones were dropped and he remained on the

force.

419

In May 2011, police gunned down twenty-six‐year-old Iraqi war

veteran Jose Guereña in a hail of seventy-one bullets in front of his wife and

four‐year-old daughter.

420

“Police claimed he was involved in a drug

trafficking ring – allegations that were never substantiated – and no officers

were disciplined . . . .”

421

Black people have always had a higher risk of violence and death in

encounters with police, but since the Hudson decision in 2006, that risk has

escalated significantly. As late as 2015, research on policing showed a

consistent trend of decreasing violence since the 1990s.

422

As of 2002,

predictions that more training and greater administrative oversight could

413

Audrey McNamara, Louisville Police Release Breonna Taylor Incident Report – It

Lists Her Injuries as “None,” CBS NEWS (June 11, 2020, 1:12 PM),

https://www.cbsnews.com/news/louisville-police-breonna-taylor-death-incident-report/

[https://perma.cc/RJA5-V99W].

414

Edwards et al.,

supra note 84, at 16794 (finding that Black men and women in the

United States are more likely to be killed by police than their white counterparts).

415

Id. at 16793.

416

Janet Kerlin, Police Apologize for Minister’s Death in Bungled Drug Raid,

ASSOCIATED PRESS (Mar. 26, 1994),

https://apnews.com/article/79a1c2e81a57e24196ea859592c9a241.

417

Jeffrey Miron & Erin Partin, Breonna Taylor Is Another Victim of the War on Drugs,

CATO INST. (Sept. 24, 2020, 5:41 PM), https://www.cato.org/blog/breonna-taylor-another-

victim-war-drugs [https://perma.cc/6QEA-S737] (discussing death of Accelyne Williams).

418

Id. (discussing death of Aiyana Stanley-Jones).

419

Rose Hackman, ‘She Was Only a Baby’: Last Charge Dropped in Police Raid That

Killed Sleeping Detroit Child, GUARDIAN (Jan. 31, 2015, 12:33 PM),

https://www.theguardian.com/us-news/2015/jan/31/detroit-aiyana-stanley-jones-police-

officer-cleared [https://perma.cc/TA86-GJFH].

420

Miron & Partin, supra note 417.

421

Id.

422

Lauren-Brooke Eisen & Oliver Roeder, America’s Faulty Perception of Crime Rates,

BRENNAN CTR. FOR JUST. (Mar. 16, 2015), https://www.brennancenter.org/our-

work/analysis-opinion/americas-faulty-perception-crime-rates [https://perma.cc/VW9A-

RY7V] (“Violent crime has fallen by 51 percent since 1991 . . . .”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 69

reduce the incidence of deadly encounters were supported by robust data.

423

The Hudson decision, however, removed restraints on police excess.

424

Now,

police are targeting Blacks with impunity and are shooting first and asking

questions later, even when there is no evidence to suggest that a person might

be violent. Since 2015, police have killed over 5,600 people.

425

Of these

people, 26% were Black, although Blacks account for just 13% of the

population.

426

The disparity is even more pronounced among the unarmed;

36% of unarmed victims were Black.

427

Of all the people in the United States,

Black men face the highest risk. Frank Edwards, Hedwig Lee, and Michael

Esposito’s study using lifetime risk data from 2013 to 2018 predicts that “1 in

1,000 black men and boys will be killed by police over the life course

(96 . . . per 100,000).”

428

By comparison, the lifetime risk for white men is

59% less; only thirty-nine in 100,000 white men are likely to be killed by

police, even though white people account for 76% of the population.

429

Black

women also face an increased risk of death in police encounters. At least

eighty-nine of the women police have killed since 2015 “were at their homes

or at residences where they sometimes stayed.”

430

Police killed twelve of the

women during a search or arrest.

431

Edwards and colleagues’ model predicts

that among women in the United States, Black women and Indian/Native

Alaskan women have the highest lifetime risk of police killing them.

432

Despite the number of police killings, police are rarely penalized. In 2021,

police killed more than 1,136 people.

433

“Officers were charged with a crime in

only 11 of those cases”—that is, less than 1% of all killings by police.

434

Far

from being an outlier, the low rate of legal accountability for officers has

423

Michael D. White, Identifying Situational Predictors of Police Shootings Using

Multivariate Analysis, 25 POLICING 726, 745-46 (2002) (concluding research confirms “the

need for administrative policy and training to guide officers’ approaches” to reducing

likelihood of deadly police-citizen encounters).

424

See supra notes 337-73 and accompanying text.

425

Marisa Iati, Jennifer Jenkins & Sommer Brugal, Nearly 250 Women Have Been

Fatally Shot by Police Since 2015, WASH. POST, Sept. 8, 2020, at A1, A12.

426

Joe Fox, Adrian Blanco, Jennifer Jenkins, Julie Tate & Wesley Lowery, What We’ve

Learned About Police Shootings 5 Years After Ferguson, WASH. POST (Aug. 9, 2019),

https://www.washingtonpost.com/nation/2019/08/09/what-weve-learned-about-police-

shootings-years-after-ferguson/?arc404=true.

427

Id.

428

Edwards et al., supra note 84, at 16794.

429

Id. at 16795.

430

Iati et al., supra note 425, at A12.

431

Id.

432

Edwards et al., supra note 84, at 16794 (graphing “[l]ifetime risk of being killed by

police, per 100,000”).

433

2021 Police Violence Report, MAPPING POLICE VIOLENCE,

https://policeviolencereport.org/ [https://perma.cc/KQ67-XZKK] (last visited Jan. 14, 2022).

434

Id.

70 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

remained consistent for several years.

435

In 2017, police killed 1,147 people,

and officers faced criminal charges in only thirteen of these cases,

approximately “[o]ne percent of all killings by police.”

436

This low rate of

conviction follows similar trends in 2013 and 2015.

437

During the War on Drugs, the United States became the most carceral nation

in the whole of human history.

438

From 1980 to 2008, the number of

incarcerated persons quadrupled from 500,000 to over 2.3 million.

439

Despite

decades of lowering crime rates, the United States leads the world in

incarceration; during the period from 1980 to 2008, the United States

incarcerated 25% of the world’s prisoners.

440

A disproportionate number of

those prisoners were Black.

441

Blacks are more likely than whites to be

arrested, indicted, convicted, and given higher sentences. Both black men and

435

National Trends, MAPPING POLICE VIOLENCE,

https://mappingpoliceviolence.org/nationaltrends [https://perma.cc/MCA8-HSES] (last

visited Jan. 14, 2022) (showing only a handful of convictions stemming from police killings

over several years).

436

2017 Police Violence Report, MAPPING POLICE VIOLENCE,

https://policeviolencereport.org/2017/ [https://perma.cc/4FSE-MX7C] (last visited Jan. 14,

2022).

437

National Trends, supra note 435.

438

Cook, supra note 57, at 568.

439

JENNIFER BRONSON & E. ANN CARSON, U.S. DOJ, PRISONERS IN 2017, at 3 (2019)

(reporting 1,608,282 people confined in federal and state prisons in 2008); ZHEN ZENG, U.S.

DOJ, JAIL INMATES IN 2017, at 2 (2019) (reporting 785,500 people held in jails on the last

weekday in June 2008); U.S. DOJ, CORRECTIONAL POPULATIONS IN THE UNITED STATES 2

(1995) (showing 501,886 people in prison and jails in 1980).

440

DRUG POL’Y ALL., THE DRUG WAR, MASS INCARCERATION AND RACE 1 (2018) (“With

less than 5 percent of the world’s population but nearly 25 percent of its incarcerated

population, the United States imprisons more people than any other nation in the

world . . . .” (citation omitted)). Between 1993 and 2019, FBI data indicated that violent

crimes decreased by 49%. John Gramlich, What the Data Says (and Doesn’t Say) About

Crime in the United States, PEW RSCH. CTR. (Nov. 20, 2020),

https://www.pewresearch.org/fact-tank/2020/11/20/facts-about-crime-in-the-u-s/

[https://perma.cc/425N-WW6Y]. U.S. Bureau of Justice Statistics data showed a decrease of

74% in the United States violent crime rate for the same period. Id. In 2018 alone, the

violent crime rate fell by 3.9%. Jamiles Lartey & Weihua Li, New FBI Data: Violent Crime

Still Falling, MARSHALL PROJECT (Sept. 30, 2019, 6:00 AM),

https://www.themarshallproject.org/2019/09/30/new-fbi-data-violent-crime-still-falling

[https://perma.cc/6M8V-XW8C].

441

John Gramlich, Black Imprisonment Rate in the U.S. Has Fallen by a Third Since

2006, PEW RSCH. CTR. (May 6, 2020), https://www.pewresearch.org/fact-

tank/2020/05/06/share-of-black-white-hispanic-americans-in-prison-2018-vs-2006/

[https://perma.cc/RH8X-S274] (“In 2018, black Americans represented 33% of the

sentenced prison population, nearly triple their 12% share of the U.S. adult population.”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 71

women are six times more likely to be incarcerated than white men and women

and over twice as likely to be incarcerated as Latinx men and women.

442

Empirical evidence demonstrates that rates of drug use among Black people

are nearly identical to those of other races, particularly whites.

443

Yet while

Blacks comprise 13% of the United States population, they account for 29% of

drug arrests and 40% of imprisonments in state and federal facilities for drug

violations.

444

As Paul Butler states, “African Americans are about 13 percent

of people who do the crime, but about 60 percent of people who do the

time.”

445

Like many police forces, LMPD selects its officers from white communities,

not the Black and Brown neighborhoods they focus on.

446

In Louisville, Blacks

make up 24% of the population but only 12.5% of the police force.

447

Of the

force, 82% is white.

448

In the 2010s, Blacks accounted for just under 21% of

the Louisville population but were involved in almost 50% of police incidents

where force was used.

449

“Black drivers in Louisville are [60%] more likely to

be stopped [than] white drivers.”

450

442

THE SENT’G PROJECT, FACT SHEET: TRENDS IN U.S. CORRECTIONS 5 (2021),

https://www.sentencingproject.org/wp-content/uploads/2021/07/Trends-in-US-

Corrections.pdf [https://perma.cc/7FZ6-VQ9Q] (showing one in three Black men and one in

eighteen Black women are likely to be imprisoned, as compared with one in seventeen white

men and one in 111 white women, and with one in six Latinx men and one in forty-five

Latinx women).

443

E.g., NAT’L INST. ON DRUG ABUSE, NAT’L INSTS. OF HEALTH, U.S. DEP’T OF HEALTH &

HUM. SERVS., DRUG USE AMONG RACIAL/ETHNIC MINORITIES 33-34 (rev. Sept. 2003),

https://archives.drugabuse.gov/sites/default/files/minorities03_1.pdf

[https://perma.cc/N25X-FRLU].

444

DRUG POL’Y ALL., supra note 440, at 1.

445

BUTLER, supra note 54, at 122.

446

See Cooper, supra note 355, at 1497-98 (“The police are primarily drawn from white

communities, not the black and brown neighborhoods that they concentrate upon.”); see also

Lauren Leatherby & Richard A. Oppel Jr., As Communities Diversify, Police Don’t Keep

Pace, N.Y. TIMES, Oct. 1, 2020, at A16 (“[N]ew federal data show that rank-and-file

officers in hundreds of police departments are considerably more white than the

communities they serve.”); U.S. COMM’N ON C.R., REVISITING WHO IS GUARDING THE

GUARDIANS?: A REPORT ON POLICE PRACTICES AND CIVIL RIGHTS IN AMERICA 7-9 (2000)

(noting that lack of diversity in police departments hampers ability of police departments to

gain respect among communities and increases likelihood of tension and violence).

447

Will Wright, Breonna Taylor’s Legacy Is Felt in a Year of Surging Activism, N.Y.

TIMES, Mar. 14, 2021, at A23.

448

LOUISVILLE METRO POLICE DEP’T, LMPD DEMOGRAPHICS REPORT 1 (2021),

https://louisville-police.org/Archive/ViewFile/Item/110 [https://perma.cc/UTD4-6RAG].

449

Shaquille Lord, ‘Been Saying This for a Long Time’: LMPD Review Says Black

Residents Treated ‘Disproportionately,’ WLKY (Jan. 29, 2021, 11:09 PM),

https://www.wlky.com/article/been-saying-this-for-a-long-time-lmpd-review-says-black-

residents-treated-disproportionately/35369385 [https://perma.cc/YN3E-JGD3].

450

Id.

72 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

The evidence of racial bias in policing is profound.

451

Numerous studies

have documented the ubiquity of racial profiling in policing.

452

Legal scholars

451

Radley Balko, Opinion, There’s Overwhelming Evidence that the Criminal Justice

System Is Racist. Here’s the Proof., WASH. POST (June 10, 2020),

https://www.washingtonpost.com/news/opinions/wp/2018/09/18/theres-overwhelming-

evidence-that-the-criminal-justice-system-is-racist-heres-the-proof (“[T]he evidence of

racial bias in our criminal justice system isn’t just convincing—it’s overwhelming.”). Police

membership in white supremacist organizations has been well documented. See, e.g., Mariel

Padilla, Police Officer Is Fired After K.K.K. Application Is Found in His House, N.Y.

TIMES, Sept. 15, 2019, at A22 (reporting that the officer’s activity came to light only

because of a tour by a realtor and that the officer had previously shot and killed an unarmed

black man); Angela Helm, Color Me Shocked: 2 Virginia Police Officers Fired for Ties to

White Supremacist Orgs, ROOT (Apr. 22, 2019, 10:30 AM), https://www.theroot.com/color-

me-shocked-2-virginia-police-officers-fired-for-1834211339 [https://perma.cc/5XPJ-

AW8Y] (reporting that two terminated officers were from separate departments and were

affiliated with separate white supremacist organizations); Katie Shepherd, Clark County

Sheriff Deputy Fired After Wearing a Proud Boys Sweatshirt, WILLAMETTE WEEK (July 20,

2018, 11:47 AM), https://www.wweek.com/news/courts/2018/07/20/clark-county-sheriff-

deputy-fired-after-wearing-a-proud-boys-sweatshirt/ [https://perma.cc/CG7M-S4UE]

(reporting that media unsurfaced a photograph of the officer, who promoted Proud Boy

merchandise on social media); Michael Winter, KKK Membership Sinks 2 Florida Cops,

USA TODAY (July 14, 2014, 6:23 PM),

https://www.usatoday.com/story/news/nation/2014/07/14/florid-police-kkk/12645555/

(stating that two officers, one of whom was deputy police chief, were fired after the FBI

exposed their membership in Ku Klux Klan); Peter Horton, House Panel Examines White

Supremacy in Law Enforcement, JURIST (Oct. 1, 2020, 8:01 AM),

https://www.jurist.org/news/2020/10/house-panel-examines-white-supremacy-in-law-

enforcement/ [https://perma.cc/XT5L-ABVM] (“Vida Johnson, a professor at Georgetown

University Law Center, gave testimony about her 2019 law review article . . . in which she

compiled ‘178 instances of explicit racial bias by the members of the police in 48 states,’

which she called ‘just the tip of the iceberg.’” (quoting Confronting Violent White

Supremacy (Part IV): White Supremacy in Blue—the Infiltration of Local Police

Departments: Hearing Before the H. Subcomm. on C.R. & C.L., 116th Cong. (2020)

(statement of Vida B. Johnson, Professor, Georgetown L. Sch.)) (citing Vida B. Johnson,

KKK in the PD: White Supremacist Police and What to Do About It, 23 LEWIS & CLARK L.

REV. 205 (2019))); see also Paul Butler, Equal Protection and White Supremacy, 112 NW.

U. L. REV. 1457, 1461-62 (2018) (discussing instances of endemic racism in police

departments and disparate treatment of Black Americans); Johnson, supra, at 210

(observing that over 100 scandals involving racist statements by police have emerged in

over forty-nine states).

452

Balko, supra note 451 (providing extensive list of incidents and evidence of

widespread profiling in police departments across the country); BUTLER, supra note 54, at

52-53, 59-61 (providing statistics demonstrating racial profiling and arguing that Supreme

Court precedent has afforded police the “super power to racially profile”); John Eligon,

There Were Changes, but for Black Drivers Life Is Much the Same, N.Y. TIMES, Aug. 7,

2019, at A18 (describing how black drivers continue to be stopped at far higher rates than

white drivers and noting that this disparity has actually grown in Ferguson, Missouri,

despite recent changes to laws); Roberts, supra note 54, at 24-25 (“Numerous studies

conducted throughout the nation demonstrate that police engage in rampant racial

profiling.”).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 73

have traced how policing and the prison-industrial complex function as

instruments of racialized social control and have done so since enslavement.

453

Police violence in marginalized communities is standard.

454

Being killed by

police is a leading cause of death among young men of color.

455

As another

example of documented structural racism in policing, five years after Darren

Wilson killed Michael Brown in Ferguson, Missouri, police continue to stop

black motorists “at much higher rates than white drivers,”

456

a racial disparity

that has grown in Ferguson despite reforms, including a state law that “greatly

reduced the number of traffic tickets, fines and arrest warrants issued.”

457

Across the state, black motorists are still “nearly twice as likely as other

motorists to be stopped” despite the attempt to reform policing through

legislation.

458

“White drivers were stopped 6 percent less than would be

expected” based on their share of the driving-age population.

459

In Ferguson,

the number of black drivers who are stopped “has increased by five percentage

points since 2013, while it has dropped by 11 percentage points for white

drivers.”

460

Officers have openly publicized their racist viewpoints on numerous

occasions on social media and have been caught making racist statements

while on duty. In June 2021, a Warren, Michigan, police officer commented on

Facebook, “Glad I wasn’t born bl&@k. I would kill myself!”

461

In June 2020,

three Wilmington, North Carolina, officers were caught on film making

derogatory statements during a routine audit of an in-car camera.

462

On the

recording, Officer Kevin Piner stated, “We are just gonna go out and start

slaughtering them f——— N-words. I can’t wait. God, I can’t wait.”

463

Two

453

MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF

COLORBLINDNESS 16-17 (rev. ed. 2012); BUTLER, supra note 54, at 52-53, 59-61; Roberts,

supra note 54, at 24.

454

Roberts, supra note 54, at 25.

455

Edwards et al., supra note 84, at 16794.

456

Eligon, supra note 452.

457

Id.; see Act of July 9, 2015, S.B. 5, 2015 Mo. Laws 453 (modifying “distribution of

traffic fines and court costs collected by municipal courts”).

458

Eligon, supra note 452.

459

Id.

460

Id.

461

Frank Witsil, Warren Police Investigating Officer Accused of Posting Racist

Comments on Facebook, DET. FREE PRESS (June 15, 2021, 4:58 PM),

https://www.freep.com/story/news/2021/06/15/warren-police-racist-facebook-

posts/7700854002/ [https://perma.cc/4JFM-4FQ7].

462

Janelle Griffith & Dennis Romero, Cops Fired over Violent, Racist Talk About Black

People: We Are Going to ‘Start Slaughtering Them,’ NBC NEWS (June 25, 2020, 12:28

PM), https://www.nbcnews.com/news/us-news/cops-fired-over-violent-racist-talk-about-

black-people-we-n1232072 [https://perma.cc/87E9-YEP6].

463

Id.

74 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

other officers chimed in with similarly shocking statements.

464

Another officer

in Hamilton, Georgia, was caught using racial slurs and discussing his views

on slavery on his body camera in January 2021.

465

B. Spectacle and Cultural Trauma

The killing of Breonna Taylor was a spectacle that inflicted a cultural

trauma on the public generally and on subaltern and marginalized communities

particularly.

466

Because Taylor’s killing inflicted public trauma, it demands a

public reckoning: an answer to the national outcry against state-sanctioned

racialized violence with impunity. Taylor’s killing fits into a larger narrative

about the historical use of policing to inflict humiliation, premature death, and

racialized state-sanctioned terror on Blacks, perceived as dangerous,

suspicious, and desperately in need of taming.

467

The failure to hold Taylor’s

killers accountable achieved the same task as her killing—the vilification of

the victim, the over-valorization or hyper-valorization of her assailants, and the

reassurance of white entitlement, “preeminence, vindication, safety, and

security.”

468

The unyielding narratives of innocence that cling to white bodies

and the ceaseless demonization of Black bodies far outweigh any long-term

commitment to systemic change, preferring instead symbolic feel-good

gestures to assuage a guilty or pricked consciousness, but do absolutely

nothing to exact material change or redistribute power.

Joy James argues that in the United States, white supremacy and racial

tyranny rely on public spectacles involving black bodies such as mob violence,

lynchings, and torture.

469

Lynchings and police shootings are rituals meant to

464

Id.

465

Cops’ Racist Conversation Caught on Bodycam Video, ABC NEWS, at 0:00-0:08,

1:28-1:44 (Jan. 30, 2021), https://abcnews.go.com/US/video/cops-racist-conversation-

caught-bodycam-video-75584121 [https://perma.cc/756V-CLDJ].

466

See Jefferson-Bullock & Jefferson Exum, supra note 54, at 636 (“U.S. policing, with

its focus on racial profiling and racially biased enforcement strategies, regularly inflicts

trauma on Black people and ‘undermines effective policing.’” (quoting William M. Carter,

Jr., A Thirteenth Amendment Framework for Combatting Racial Profiling, 39 HARV. C.R.-

C.L. L. REV. 17, 24 (2004))); Inger Burnett-Zeigler, How the Breonna Taylor Decision

Traumatizes Black Women, CHI. TRIB., Oct. 5, 2020, at 17.

467

See generally SIMONE BROWNE, DARK MATTERS: ON THE SURVEILLANCE OF

BLACKNESS (2015) (tracing historical connections between development of surveillance

practices and the oppression of Black Americans); Carbado, supra note 24, at 129

(discussing how, empowered by misguided interpretations of Fourth Amendment, police

disproportionately interact with Black people, exposing them “not only to the violence of

ongoing police surveillance and contact[, and social control,] but also to the violence of

serious bodily injury and death”); Edwards et al., supra note 84, at 16793 (finding that

Black men and women, as well as other racial minorities, “face higher lifetime risk of being

killed by police than do their white peers”).

468

See Cook, supra note 57, at 568.

469

See JOY JAMES, RESISTING STATE VIOLENCE: RADICALISM, GENDER, AND RACE IN U.S.

CULTURE 24 (1996).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 75

perfect the ability of those who have power to humiliate, torture, taunt,

threaten, or otherwise oppress in order to gratify the assailant’s pathological

need for preeminence and security.

470

Elsewhere, I have written about how

“[l]ynchings, gang rapes, police shootings, sex trafficking, and the half-hearted

adjudications of these cases are all rituals of spectacle: [t]hey [instruct] the

viewer to acknowledge and respect the perpetrator’s entitlement and authority

to inflict pain” and humiliation.

471

The impulse toward spectacle is not limited to the ritual of lynchings. It is

embedded in both policy and legal doctrine. All the unspoken yet shared

convictions about who is dangerous, suspicious, and in need of taming become

normative principles around which doctrine is created and ordered. As an

example, Kate Levine argues that Miranda v. Arizona

472

favors the guilty and

the sophisticated rich and disfavors the innocent and the unsophisticated

poor.

473

Similarly, police shootings dramatize the absence of process for Black

victims and the abundance of process for their white assailants. The contrasting

consequences the Black Lives Matter protestors and the Capitol

insurrectionists faced brings this point into sharp relief. The former were

immediately arrested, charged, and convicted while many of the latter were

free and uncharged seven months after the event.

474

Court opinions skew in favor of greater police discretion, control, and power

over the subaltern.

475

This facilitates increased police encounters that end in

death, destruction, and injury.

476

Policies reflect the willingness of police to

470

See id. at 24-33.

471

Blanche Bong Cook, Stop Traffic: Using Expert Witnesses to Disrupt Intersectional

Vulnerability in Sex Trafficking Prosecutions, 24 BERKELEY J. CRIM. L. 147, 153 (2019).

472

384 U.S. 436 (1966).

473

Levine, supra note 55, at 1214-20.

474

Rachel Chason & Samantha Schmidt, Lafayette Square, Capitol Rallies Met Starkly

Different Policing Responses, WASH. POST (Jan. 14, 2021),

https://www.washingtonpost.com/dc-md-va/interactive/2021/blm-protest-capitol-riot-police-

comparison/ (comparing how overwhelmingly white, violent insurrectionists who stormed

seat of American government faced paltry resistance from Capitol Police officers, while a

racially diverse group of peaceful protestors rallying in Lafayette Square were abruptly

assaulted with chemical agents, batons, and rubber bullets by phalanx of federal forces and

soldiers).

475

See, e.g., Graham v. Connor, 490 U.S. 386, 396-97 (1989) (giving great deference to

officers determining what actions are reasonable when interacting with the subaltern).

476

See Carbado, supra note 24, at 149.

76 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

accept a few (Black) casualties as the cost of doing business, particularly when

police are protecting the “thin blue line.”

477

Angela Onwuachi-Willig argues that the systemic killing of Black people

subjects the public, particularly subalterns, to a cultural trauma “that leaves

indelible marks upon their group consciousness, marking their memories

forever and changing their future identity in fundamental and irrevocable

ways.”

478

Drawing on the work of Kai Erikson, Onwuachi-Willig argues that

the murder of George Floyd inflicted a psychological trauma on the collective

psyche of traumatized people of such brutal magnitude that it ruptured their

ability to react effectively and left them in the state of a damaged social

organism.

479

Repeated exposure to cultural trauma can impact the actual

structure of DNA, “adding a potential biological link to the mix,”

480

such that

cultural trauma “come[s] to reside in the flesh [of Black people] as forms of

memory reactivated and articulated at moments of collective spectatorship.”

481

Jalila Jefferson-Bullock and Jelani Jefferson Exum argue that “[d]ue to the

United States’ burdensome and overwhelming history of discrimination against

minority groups, communities of color often experience shared trauma,

transmitted collectively and intergenerationally over time. This is especially

true for Black people in the United States, who endure routine, systemic

oppression and ‘chronic exposure to racism’ daily.”

482

Onwuachi-Willig also

argues that the fundamental injury the murder of George Floyd inflicted

necessitates “a narrative about a horribly destructive social process, and a

477

Using racial threat theory, Jalila Jefferson-Bullock and Jelani Jefferson Exum

demonstrate how “[l]ocal increases in racial minority populations are thought to pose threats

to the political standing, economic power, and physical safety of white citizens, who

respond by lobbying local government for increased social control.” Jefferson-Bullock &

Jefferson Exum, supra note 54, at 633 (alteration in original) (quoting Robert Vargas &

Philip McHarris, Race and State in City Police Spending Growth: 1980 to 2010, 3 SOCIO.

RACE & ETHNICITY 96, 96 (2017)).

478

See Angela Onwuachi-Willig, The Trauma of Awakening to Racism: Did the Tragic

Killing of George Floyd Result in Cultural Trauma for Whites?, 58 HOUS. L. REV. 817, 825

(2021) (quoting Jeffrey C. Alexander, Toward a Theory of Cultural Trauma, in CULTURAL

TRAUMA AND COLLECTIVE IDENTITY 1 (2004)).

479

See id. at 828 (quoting Kai Erikson, Notes on Trauma and Community, 48 AM. IMAGO

455, 460-61 (1991)); Angela Onwuachi-Willig, The Trauma of the Routine: Lessons on

Cultural Trauma from the Emmett Till Verdict, 34 SOCIO. THEORY 335, 336-38 (2016)

(quoting Erikson, supra, at 460-61).

480

Kindaka J. Sanders, Defending the Spirit: The Right to Self-Defense Against

Psychological Assault, 19 NEV. L.J. 227, 244 (2018).

481

See Onwuachi-Willig, supra note 479, at 335-36 (quoting Elizabeth Alexander, “Can

You Be BLACK and Look at This?”: Reading the Rodney King Video(s), 7 PUB. CULTURE

77, 80 (1994)).

482

Jefferson-Bullock & Jefferson Exum, supra note 54, at 637 (quoting Nicole Tuchinda,

The Imperative for Trauma-Responsive Special Education, 95 N.Y.U. L. REV. 766, 796

(2020)).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 77

demand for emotional, institutional, and symbolic reparation and

reconstitution.”

483

The state-sanctioned murders of Black people are a threat to Black existence

that will not be tolerated. Far from accepting Black death as the necessary cost

of doing business, protestors are clear that if the police cannot do their jobs

free of white supremacy, then the police must be dismantled and reconstituted

to ensure equitable safety and security. Similarly, many scholars have argued

that because white supremacy is so pervasive among police, the only

alternative is abolition or at a minimum defunding.

484

The cost-of-doing-business argument reflects a malodourous cost-benefit

analysis that contrasts sharply with “society’s deeply felt belief that the

criminal law cannot be used as an instrument of unfairness, and that the

possibility of unfair and even brutal police tactics poses a real and serious

threat to civilized notions of justice.”

485

Police killings of Black people destroy

any semblance of impartiality and erode beliefs that the legal system works in

the interest of protection, fairness, and justice.

486

Failure to hold police

accountable widens the increasing chasm between marginalized communities

and law enforcement (including prosecutors). It renders the criminal legal

process opaque, invisible, and skewed against the interests of vulnerable

communities. Grossly unequal distributions of process will ultimately lead to

its demise as the clarion calls for abolition grow ever louder and more

483

See Onwuachi-Willig supra note 478, at 828-29 (quoting Alexander, supra note 478,

at 11).

484

See, e.g., BUTLER, supra note 54, at 6 (“Police violence and selective enforcement are

not so much flaws in American criminal justice as they are integral features of it.”); see also

Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 CALIF. L. REV. 1781,

1839-45 (2020) (“Once we understand policing and incarceration to be an embodiment of

the structural and racialized ordering at the heart of our system of laws, we must understand

decarceration and depolicing as central to larger social justice struggles.”); Brandon

Hasbrouck, Abolishing Racist Policing with the Thirteenth Amendment, 68 UCLA L. REV.

DISCOURSE 200, 202 (2020) (finding that police power in United States today protects racial

hierarchies embedded in Constitution); Alexis Hoag, Abolition as the Solution: Redress for

Victims of Excessive Police Force, 48 FORDHAM URB. L.J. 721, 737 (2021) (acknowledging

that “the current social order depends on policing, prosecution, and prisons to perpetuate

racial and economic inequality”); Jefferson-Bullock & Jefferson Exum, supra note 54, at

628 (“Regardless of the ultimate design, the fundamental idea behind defunding the police is

that the United States’ system of policing is systemically racist and eradicating that racism

requires dismantling.”); Roberts, supra note 54, at 117-18 (lauding Chicago City Council in

2015 for refusing to seek criminal prosecution for officers involved in systemic violence

against Black suspects in effort to suspend the cycle of prison-related punishment in the city

and instead using alternative means to redress victims).

485

See Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).

486

See Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal

Procedure: The Case of Alford and Nolo Contendere Pleas, 88 CORNELL L. REV. 1361,

1386-87 (2003) (suggesting that law does not always seek truth as its foremost priority, thus

diminishing public’s perception of legal system).

78 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

certain.

487

Unpunished police criminality threatens to upend the criminal legal

process and solidifies the call for abolition, leaving many to ask, “Why are we

following the law when the police don’t?” or, “Why should we follow the law

when the police murder with impunity?”

The cultural trauma inflicted on Black people necessitates accountability

from the police, elected officials, and judges. At a minimum, in the Taylor

case, there must be a public vetting of the flawed affidavit and the execution of

the warrant in an adversarial setting where law enforcement does not

monopolize the facts and the narratives surrounding the facts.

VI. RESPONDING TO PUBLIC OUTCRY: SOLUTIONS TO POLICING PROBLEMS

Taylor’s death exposed systemic problems in policing, including lying in

search warrant affidavits, the lack of judicial oversight in the warrant issuing

process, the assembly-line processing of warrants that is the legacy of the War

on Drugs, and the fatal dangerousness of dynamic entries. All of these are

disproportionately inflicted on persons of color. The deaths of Michael Brown,

Tamir Rice, Eric Garner, and countless others have solidified the reality of the

Black absurdist nightmare where merely being alive carries the risk of death at

the hands of police who see their own actions as a contribution to law and

order and as integral to preserving the thin blue line between civilization and

487

See generally Akbar, supra note 484 (viewing abolition as necessary and effective

police reform); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking

Cycles of Violence Through Abolition Democracy, 40 CARDOZO L. REV. 1453 (2019)

(discussing society’s evolution away from the need for police).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 79

the jungle.

488

In these killings, Black victims are vilified, whiteness is

valorized, and the apex position of white heteropatriarchy is vindicated.

Systemic harms require systemic solutions. Structural harms require structural

solutions. It is beyond the scope of this Article to reconcile the calls for

abolition or a radical reconstituting of the police. This Part, however, lists

several potential remedies that specifically address the problems with the

acquisition and execution of the search warrant in Breonna Taylor’s case.

A. Create Multiple Layers of Independent Review of Police Conduct

When I was a federal prosecutor, it was standard procedure for federal

agents to present search warrant applications for my review before proceeding

to the magistrate. After my review, my supervisor, a veteran prosecutor with

forty years of experience, reviewed the warrant application again. This all

happened after a frontline supervisor met with a multidisciplinary team of law

enforcement to decide if the case was acceptable for federal prosecution. After

that, the case was presented to a frontline prosecutor; that prosecutor prepared

a prosecution memorandum, which highlighted any problems with suppression

488

BUTLER, supra note 54, at 25 (“A surprisingly large number of Americans don’t

actually think of blacks as human beings. They think of us as apes, to be exact.”); Frank

Rudy Cooper, Cop Fragility and Blue Lives Matter, 2020 U. ILL. L. REV. 621, 634-35

(arguing that police believe themselves to be the “thin blue line” holding back barbarian

hordes); Cooper, supra note 355, at 1497 (“The obvious implication of the thin blue line

narrative is that law enforcement serves the function of separating black and brown people

from whites.”); see also JILL LEOVY, GHETTOSIDE: A TRUE STORY OF MURDER IN AMERICA 6

(2015) (noting that Black men are most common victims of homicides); Joseph Serna, More

Racist Text Messages Uncovered Among San Francisco Police Officers, L.A. TIMES (Apr.

27, 2016, 10:55 AM), https://www.latimes.com/local/lanow/la-me-ln-sfpd-racist-text-

messages-20160426-story.html [https://perma.cc/JY7T-8AKH] (noting that Los Angeles

police officers referred to Black people using the N-word, Latinx people as “beaners,” and

people of Middle Eastern descent as “rag heads”); John Del Signore, NYPD Captain

Routinely Called Black Suspects “Animals,” Discrimination Lawsuit Alleges, GOTHAMIST

(Apr. 16, 2012, 6:35 PM), https://gothamist.com/news/nypd-captain-routinely-called-black-

suspects-animals-discrimination-lawsuit-alleges [https://perma.cc/QAL5-LDH8]; Damali

Keith, Several Complaints of Racially Insensitive Posts by Houston Police Officers, FOX 26

HOUS. (June 30, 2020), https://www.fox26houston.com/news/several-complaints-of-

racially-insensitive-posts-by-houston-police-officers [https://perma.cc/W3ZW-EYP3]; Brian

X. McCrone, Police Union President Calls Black Lives Matter Protesters Outside

Philadelphia Officer’s House ‘A Pack of Rabid Animals,’ NBC 10 PHILA. (Sept. 1, 2017,

11:29 AM), https://www.nbcphiladelphia.com/news/local/police-union-president-calls-

black-lives-matter-protesters-outside-philadelphia-officers-house-a-pack-of-rabid-animals-

report/26796/ [https://perma.cc/H6GJ-4NKF]. Officer Darren Wilson, who killed Michael

Brown in Ferguson, Missouri, described Brown in nonhuman terms. Darren Wilson: ‘I Felt

Like a 5-Year-Old Holding onto Hulk Hogan,’ CBS NEWS (Nov. 25, 2014, 11:01 AM),

https://www.cbsnews.com/news/ferguson-decision-darren-wilson-said-he-felt-like-a-5-year-

old-holding-onto-hulk-hogan/ [https://perma.cc/QGU7-23UT]. Wilson described Brown to a

grand jury as “it,” saying, “The only way I can describe it, it looks like a demon, that’s how

angry he looked.” Id. Of his physical altercation with Brown, Wilson said, “I felt like a five-

year-old holding on to Hulk Hogan . . . .” Id.

80 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

issues, problems of proof, and constitutional violations; and the prosecution

memo moved up the hierarchy to a supervisor, a department head, and

eventually, the United States Attorney for final approval. Local prosecutors

and police could greatly benefit from a similar multilayered review process.

Multiple layers of review screen for negligent surveillance, investigation, and

verification. Multiple layers of review, particularly from experienced eyes that

can detect constitutional violations, callousness, and suspicious evidence

gathering, protects the public from police excess. Ideally, the review process

should include someone invested in the integrity of the prosecutor’s office who

is removed from the competitive enterprise of ferreting out crime. Someone in

the chain of command who reviews the warrant application should be

accountable to the electorate and for providing much-needed transparency.

Prosecutors bring familiarity with Fourth Amendment standards, which are

often confusing and convoluted, and attention to privacy concerns. Moreover,

prosecutors are held to professional responsibility standards that add another

layer of accountability in the search warrant process. Given the increase of

political activism surrounding police excess and increased public scrutiny,

police and prosecutors should make data about police excess available for

public review. The combination of transparency and multiple layers of search

warrant review would significantly reduce the incidences of overzealousness

that lead to death and injury.

489

State attorneys general can also form search warrant review boards that

would collect random samplings of search warrants, review them for

compliance, and compare them to the data discussed in Section III.D of this

Part to further ensure equity in surveillance, prosecutions, and convictions. The

review board should include police, police chiefs, prosecutors, defense

attorneys, academics, scholars, judges, legislators, and representatives of

governmental bodies.

490

Such review boards would act as a necessary check on

judges, whose election chances are often shaped by police unions.

491

Reform-minded prosecutors and police chiefs have taken some steps in this

direction. The top prosecutor in St. Louis, Kim Gardner, has stopped accepting

new cases or search warrant applications from officers with a history of

489

Cf. Balko, supra note 5 (noting Judge “Shaw took only 12 minutes to review the five

warrants in the investigation” that were filled with lies).

490

E.g., Mark Maynard, Task Force Panel on Search Warrants Meets for First Time,

SENTINEL ECHO (May 28, 2021), https://www.sentinel-echo.com/news/task-force-panel-on-

search-warrants-meets-for-first-time/article_9bd21c04-bf3d-11eb-81c8-

d7926118b166.html.

491

Alex V. Hernandez, The Judges Cops Want: These Candidates Have Been Endorsed

by Chicago’s Police Union, IN THESE TIMES (Mar. 19, 2018),

https://inthesetimes.com/article/chicago-police-union-fop-judicial-candidates-prosecutors-

states-attorney [https://perma.cc/U545-CFFG] (reporting that many police union judicial

endorsements “are for career prosecutors who largely side with police”); Noam Scheiber,

Farah Stockman & J. David Goodman, Fierce Protectors of Police Impede Efforts at

Reform, N.Y. TIMES, June 7, 2020, at A1.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 81

misconduct or lying.

492

“In Philadelphia and Seattle, prosecutors are creating

similar ‘do not call’ lists.”

493

Chris Magnus, the police chief in Tucson,

Arizona, has stated, “If I had my way, officers who lie wouldn’t just be put on

a list, they’d be fired, and also not allowed to work in any other jurisdiction as

a police officer ever again.”

494

Often, however, police-union contracts prevent

termination of officers with a record of brutality and dishonesty.

495

B. Apply the Exclusionary Rule to Unconstitutional Warrants

The exclusionary rule, which bars constitutionally violative evidence from

trial, does not apply when police violate the knock-and-announce rule and

when material falsehoods in search warrant affidavits cannot be connected to

deliberate police misconduct.

496

Taylor’s case vividly illustrates what can go

wrong when police have little incentive to adhere to constitutional

requirements when obtaining and executing search warrants. The absence of

the exclusionary rule incentivizes officers to violate the knock-and-announce

precautions and to engage in negligent conduct in both the acquisition and

execution of search warrants. Any proposed solution to Taylor’s massacre

should reexamine the application of the exclusionary rule to constitutionally

violative conduct and should lower the threshold of evidence necessary to

demonstrate a breach of Fourth Amendment protections. It is imperative that

evidence obtained through materially false statements in warrants be rejected

regardless of the applicant’s mens rea.

492

Christine Byers & Joel Currier, St. Louis Prosecutor Says She Will No Longer Accept

Cases From 28 City Police Officers, ST. LOUIS POST-DISPATCH (Aug. 31, 2018),

https://www.stltoday.com/news/local/crime-and-courts/st-louis-prosecutor-says-she-will-no-

longer-accept-cases-from-28-city-police-officers/article_6d8def16-d08d-5e9a-80ba-

f5f5446b7b6a.html [https://perma.cc/Z8EW-6A6L].

493

See David Leonhardt, When the Police Lie, N.Y. TIMES (June 8, 2020),

https://www.nytimes.com/2020/06/08/briefing/minneapolis-coronavirus-new-york-your-

monday-briefing.html; Avery Anapol, Philadelphia DA Moves to Create Database of

‘Problem’ Cops, HILL (June 5, 2018, 3:34 PM), https://thehill.com/homenews/state-

watch/390827-philadelphia-da-moves-to-create-database-of-problem-cops

[https://perma.cc/2YZN-GX64]; Eli Hager & Justin George, One Way to Deal with Cops

Who Lie? Blacklist Them, Some DAs Say, MARSHALL PROJECT (Jan. 17, 2019, 6:00 AM),

https://www.themarshallproject.org/2019/01/17/one-way-to-deal-with-cops-who-lie-

blacklist-them-some-das-say [https://perma.cc/J8RV-MX4B].

494

Hager & George, supra note 493.

495

Reade Levinson, Across the U.S., Police Contracts Shield Officers from Scrutiny and

Discipline, REUTERS (Jan. 13, 2017, 1:18 PM),

https://www.reuters.com/investigates/special-report/usa-police-unions/

[https://perma.cc/65UE-WJ94] (explaining results of examining eighty-two police union

contracts, which showed pattern of “making it difficult to fire officers with a history of

abuses”). See generally Stephen Rushin, Police Union Contracts, 66 DUKE L.J. 1191 (2017)

(outlining failure of external legal mechanisms in producing organizational police

accountability).

496

See Hudson v. Michigan, 547 U.S. 586, 598-99 (2006).

82 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

C. Require Higher Justification for No-Knock Entry

Where police insist on a no-knock entry, a separate supporting affidavit with

an enhanced threshold of evidence should be required. It should specifically

establish evidence of dangerousness, injury, and/or flight risk in detail against

a greater standard of scrutiny, such as probable cause. A separate affidavit and

a higher evidentiary burden would focus the analysis of both the affiant officer

and the issuing magistrate on the evidence. The combination of a separate

affidavit and a greater evidentiary burden, more stringent application of the

exclusionary rule, and disciplinary action for falsehoods would incentivize a

more rigorous investigation and thereby eliminate the series of falsehoods that

led officers to Taylor’s home. In Taylor’s case, the warrant application

justifying intrusion into her home was lumped together with five warrants for

other people.

497

The requirement of an additional affidavit might have slowed

down the assembly-line pace of the warrant acquisition and perhaps focused

the attention of both the affiant and the magistrate.

498

Similarly, Federal Rule of Criminal Procedure 41 requires search warrants

be served in the daytime, generally between 6:00 a.m. and 10:00 p.m., absent a

significant showing to execute outside that time frame.

499

Perhaps some of the

confusion and resulting gun fire surrounding the execution of the warrant for

Taylor’s home would have been mitigated if it had occurred during the

daytime, particularly with a loudspeaker announcing the presence of the police

to execute a search warrant. Such practices might curtail the confusion and,

therefore, violence.

D. Collect Data on Dynamic Entries and Make It Available to the Public

Reliable data on dynamic entries does not exist. There is no central

repository for gathering such data. In explaining the reasoning behind the

absence of data, one state senator remarked, “[The police] don’t want to be

held accountable.”

500

As part of necessary reform efforts, the Department of

Justice should mandate that every law enforcement agency collect data

regarding forced entries. Data should include all of the following information

regarding the execution of the warrant: the method used to execute the warrant;

whether and what type of force was used, such as battering rams; any injuries;

any property damage; the type of crime investigated; the number of arrests; the

number of detentions; the evidence found; and demographic information about

the target suspects, including their race, gender, and income. Such information

497

Duvall & Tobin, supra note 73.

498

See Balko, supra note 5 (suggesting preventative measures such as banning forced

entry raids, holding judges accountable for signing unconstitutional warrants, demanding

that police officers wear body cameras during raids, and ensuring officers are punished if

they fail to activate their cameras).

499

FED. R. CRIM. P. 41.

500

Sack, supra note 26, at 17.

2022] SOMETHING ROTS IN LAW ENFORCEMENT 83

should be made available to the public for critique and research. Thoroughly

delineated data would allow for much-needed analysis and scrutiny of how a

person’s race, gender, and class inform the distinctiveness of their experiences

with police excess.

501

One study found that from 2010 to 2016, dynamic entries resulted in at least

eighty-one civilian and thirteen law enforcement deaths and the maiming or

wounding of scores of others.

502

Half of the civilians who were killed were

members of minority groups.

503

This death count did not include deaths caused

by officers who are not SWAT team members during no-knock entries, like the

raid that killed Taylor.

504

In a study the American Civil Liberties Union

recently conducted in twenty cities, “42 percent of those subjected to SWAT

search warrant raids were black and 12 percent [were] Hispanic.”

505

“[F]rom

2010 to 2015, an average of least [thirty] federal civil rights lawsuits were filed

[each] year to protest residential search warrants executed with dynamic

entries.”

506

A comprehensive database of dynamic entries and police use of force

generally that includes demographic information about targets would enable

both law enforcement and the public to scrutinize when force is authorized and

under what circumstances.

507

Comprehensive nationwide data regarding

dynamic entries might be used to curtail unnecessary and unjustifiable uses of

force.

508

This assessment would establish rates of death and injury that might

501

See Cook, supra note 57, at 623 (“With respect to implicit bias screenings,

measurements of bias are no more arbitrary than LSATs or standardized testing.”). See

generally AFR. AM. POL’Y F., SAY HER NAME: RESISTING POLICE BRUTALITY AGAINST

BLACK WOMEN (2015), https://static1.squarespace.com/static

/53f20d90e4b0b80451158d8c/t/5edc95fba357687217b08fb8/1591514635487/SHNReportJu

ly2015.pdf [https://perma.cc/E97G-TWAN] (explaining importance of racial analysis of

police violence).

502

Sack, supra note 26, at 16.

503

Id.

504

See id. at 1, 16 (specifying use of SWAT teams in these searches).

505

Id. at 16.

506

Id.

507

See Cook, supra note 57, at 623 (“In order to hide, obfuscate, and legitimize its

operations, white heteropatriarchy enlists the institutional power of the police and the

courts.”); Wesley Lowery, How Many Police Shootings a Year? No One Knows, WASH.

POST (Sept. 8, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/09

/08/how-many-police-shootings-a-year-no-one-knows/. Lowery quotes D. Brian Burghart,

editor and publisher of Reno News & Review and creator of Fatal Encounters:

One of the government’s major jobs is to protect us. How can it protect us if it doesn’t

know what the best practices are? If it doesn’t know if one local department is killing

people at a higher rate than others? When it can’t make decisions based on real

numbers to come up with best practices?

Id.

508

Cook, supra note 57, at 617-18 (explaining that police data will likely show trends of

racialized violence and may spark systematic reform).

84 BOSTON UNIVERSITY LAW REVIEW [Vol. 102:1

provide a more accurate cost-benefit analysis that states and the federal

government could use to draft legislation, particularly in the area of excessive

use of force. Furthermore, this publicly accessible information might pressure

law enforcement to adopt new policies that would lead to more thorough

surveillance, investigation, and verification that might reduce both mistakes

and the unnecessary use of force.

509

E. Use Independent Review Boards to Monitor Judges

Taylor’s death raises numerous questions concerning judicial oversight in

the warrant issuing process. Should the Judicial Conduct Commission

investigate Judge Mary Shaw? Would increasing search warrant scrutiny lead

to the perception that some magistrates are “hard on search warrants”? Would

police unions rally against the re-election of magistrates who require more

exacting warrant evidence? If a judge were perceived as less generous toward

warrants, would police engage in forum shopping to find a less exacting

magistrate?

510

Would random assignment of issuing magistrates curtail forum

shopping?

In partial answer to these structural problems in the warrant issuing process,

an independent nonprofit, like the Judicial Conduct Commission, should study

and make available judges’ report cards that voters can take into the voting

booth. The card should compile complaints, investigations, findings, and

sanctions against judges on the ballot. Several entities have proposed

methodologies for judicial evaluation, including the American Bar Association

(“ABA”).

511

The ABA guidelines recommend various criteria for evaluating

judges, including integrity, impartiality, communication, temperament, and

administrative capacity.

512

For federal judiciary nominees, the ABA provides a

rating of the nominee to the Senate Judiciary Committee, the administration,

and the public using the three criteria of integrity, professional competence,

and judicial temperament.

513

An entity should compile this information in an

easily understandable pamphlet that voters can take to the polls.

509

Id. at 617 (“This assessment would create a baseline number or rate, from which

states and the federal government might devise legislation to address excessive use of

force.”).

510

Jacob Ryan, Louisville Police Change Warrant Form, Improve Transparency, 89.3

WFPL (Nov. 11, 2020), https://wfpl.org/louisville-police-change-warrant-form-improve-

transparency/ [https://perma.cc/WY7G-75E9] (discussing statement of Angela Rea,

president of Kentucky Association of Criminal Defense Lawyers, where she noted that

“being able to readily identify which judge signs a warrant can help dispel—or prove—any

concern that police are ‘forum shopping’ when seeking a search warrant”).

511

See generally AM. BAR ASS’N, BLACK LETTER GUIDELINES FOR THE EVALUATION OF

JUDICIAL PERFORMANCE (2005) (establishing guidelines to evaluate judicial performance).

512

Id. at 3-5.

513

AM. BAR ASS’N, STANDING COMMITTEE ON THE FEDERAL JUDICIARY: WHAT IT IS AND

HOW IT WORKS 1 (2020).

2022] SOMETHING ROTS IN LAW ENFORCEMENT 85

The University of Denver and former Supreme Court Justice Sandra Day

O’Connor have also developed the O’Connor Judicial Selection Plan, a method

for evaluating judges.

514

The plan requires publicly accessible evaluations

before judicial retention elections.

515

The evaluation standards include

impartiality, judicial temperament, administrative skills, and public

outreach.

516

CONCLUSION

The search warrant for Breonna Taylor’s home was illegal, directly calling

into question the legality of police presence at her home in the first instance.

The killing of Breonna Taylor, however, transcends narratives about bad-apple

cops and aberrant magistrates. Taylor’s killing was an example of systemic,

structural, state-sanctioned violence. Her tragedy is the result of history,

policing, and doctrine. Hudson v. Michigan opened the floodgates to increased

incidences and degrees of police violence, hastening the militarization of

policing and the tragedy of Breonna Taylor. The Supreme Court’s sanguine

faith in police officers’ power of self-redemption and self-correction is of no

comfort to the thousands police kill. Dynamic entries demand the Court’s

review.

Breonna Taylor’s killing inflicted trauma on communities already gutted by

unyielding police violence and exhausted by the criminal-industrial complex.

This examination has probed both the illegality of the search warrant and the

legality of the circumstances that led to Breonna Taylor’s death. It suggests

some bare minimum reform efforts that might address the public outcry for

accountability. Deliberate policy decisions facilitated the killing of Breonna

Taylor, and policy reforms can prevent the next Breonna Taylor.

We can ban dynamic entries except in the narrowest of circumstances. We

can fashion legal doctrine that disincentivizes callous and reckless police

cultures and that eliminates the unequal distribution of death among the

precariat. We can hold judges accountable for rubber-stamping search warrants

devoid of the required evidence. We can demand that police officers activate

their body cameras to regulate their conduct through public scrutiny and

critique. We can insist on swift and severe punishment when police fail to

activate their cameras. We can collect much more data on how police conduct

business and use it to educate the public and to exact better policy. We can do

a lot more to avoid deaths like Breonna Taylor’s, if that is what we desire to

do.

514

See generally SANDRA DAY O’CONNOR & THE INST. FOR THE ADVANCEMENT OF THE

AM. LEGAL SYS., THE O’CONNOR JUDICIAL SELECTION PLAN (2014) (strategizing to protect

the quality, integrity, and impartiality of the judiciary).

515

See id. at 8 (“Judicial performance evaluation plays a crucial role in providing voters

with objective and broad-based information about the judge’s performance . . . .”).

516

Id. at 7.