“Wait for it,” I said.
She’s busy. She’s making coffee and reading the news and answering calls to action on Facebook and looking up the next Zoom class for our second-grader.
“There’ll be an indictment,” I say. “If I were running this circus, I’d make sure they indict just one cop.”
“Oh,” she says. “Well, that’s optimistic.”
“Hell no, it’s not,” I say. “They’ll indict one guy for manslaughter — that makes people feel like they won something. Or, at least it makes the local news channels salivate when people are still in the streets ‘cause now they can say ‘my god, they got an indictment, what more could these protesters possibly want?’ Then, they let that one guy plead to something stupid — wanton endangerment, probably. No trial. They can’t let a trial happen, because juries never convict cops and then everyone will be right back in the streets. They’re betting that twelve million bucks and a slap on the wrist with no jail time will be the price for keeping the peace.”
“No way, man,” she says, slinging a toddler over her shoulder and lobbing cinnamon rolls at the other two. Then, it was off to school in the living room, leaving me to wait by the phone until the afternoon announcement. When it came, I, the bumbling, naïve Hoosier, lost to my spouse, the pragmatic Okie, as usual. When will I ever learn? It’s not like I’m new at this.
My memory of police violence in Louisville goes all the way back to 2002, when detectives Michael O’Neil and Brian Luckett went looking for a suspect and instead found a door to an unrelated apartment that was already standing open. At least it was open enough to put a boot in, and then to swing it wide enough for two plainclothes cops to enter. Inside, they found a total of five people, including 50-year-old James Taylor. James was slight and wiry, probably drunk, and probably mentally ill. Most stories faithfully slapped “convicted felon” before his name every time, as though it were an honorific. Detectives handcuffed James and put him in a chair. At some point, James stood up and produced a 3-inch box cutter from his pocket. According to police, he “lunged” at them. According to police, someone always lunges. But according to the other eyewitnesses in the apartment, there was no lunging. It doesn’t matter now, and it didn’t matter then. O’Neil shot James 12 times. He was still handcuffed behind his back.
We made signs. We marched in the street. We wrote letters. We demanded a citizen’s review board with the power to discipline bad cops. We met with the city’s new police chief, who smiled sincerely, shook hands firmly and promised reforms. The county prosecutor went so far as to impanel a grand jury, just to show that something was being done. Neither detective was indicted. They both returned to the force. The family hired a well-known Louisville civil rights lawyer and sued the police. After years of litigation, a jury awarded them what they thought James was worth: nothing. Everyone went back to work and back to school and back to the vacuity of knowing that nothing was going to change.
In my first year of law school, a Louisville police officer named McKenzie Mattingly killed Michael Newby. Michael was 19 years old. Mattingly, working undercover, tried to make a drug buy from Michael. Things went south. Michael ran. Mattingly shot him in the back. Again, we were in the streets with our signs. Again, we demanded reform. And again, nothing happened. Mattingly was gingerly guided through an utter farce of a prosecution and quickly acquitted at trial. He moved to another county and went right on being a cop.
The Newby family’s lawsuit against Mattingly was one of the very first cases I worked on as a clerk, and then as a new lawyer. By the time I was involved, the case had been to the court of appeals and back. My mentors and lawyers for the city discussed the plan for a jury trial, while I kept my mouth shut and tried to understand what was happening. The judge, a stern, pink-nosed curmudgeon who had represented the cops of Smallville in his younger days, didn’t like the case. He could keep out our evidence. He could shut down our witnesses. He could ensure that the Newby family would end up empty-handed like James Taylor’s family. There was nothing we could do unless we made another trip to the court of appeals, which would take another year, at least. We gathered up our pens, pads and coffee cups, jaws clenched, not saying anything. The city offered a modest sum, which, in their estimation, was the value of a young man who had the audacity to flee a cop in terror. They could have paid more, but they knew they didn’t have to.
Then, there was Leon Brackens, who called 911 to report his own kidnapping. When police chased him over the state line, the white driver who ran from the cops with Leon in the car was gently taken to the back of an LMPD cruiser. Leon, who had minutes earlier told a 911 dispatcher that he didn’t want to run and the driver was trying to kill him, was yanked out of the passenger seat and beaten senseless. When Leon died a few months later, his family got a few thousand bucks to settle with one department, but the case against LMPD was dismissed as an “honest mistake” by an Obama-appointed trial judge. No one was charged. No one was disciplined. No one was even in the streets that time.
After working a few dozen gruesome cop cases and seeing hundreds more last only a few hours in the national news blender, I’m ashamed to say that a lawyer gets used to stories like these. I’ve been conditioned to think of a case like Breonna Taylor’s as not-a-case, a non-starter, a nullity. The cops had a warrant. They may have even knocked and announced that they were police — not to say that anyone heard it, but that it doesn’t much matter. A civilian pointing a weapon of any kind at an officer is, we have come to accept, grounds for an instantaneous death sentence, no matter the circumstances. “Yes, this all looks according to protocol,” I thought. “Not like anything that would ever be prosecuted as a murder. Cops kill people in drug raids, after all. Everyone knows that. Maybe they’ll charge one of them with manslaughter to placate the masses, but it won’t go anywhere.” At least I was right about the sham prosecution. Still, I got it mostly wrong.
I wasn’t able to cast off the last vestiges of my youthful optimism for long enough to foresee a prosecution that was such a sham as to indict on wanton endangerment — a bullshit catch-all that appears to have been the only charge the attorney general bothered to present. That means the one and only officer charged will likely end up pleading to a lesser crime (a misdemeanor), followed by no jail time, followed by an expungement, followed by a transfer to a smaller department, say, Bardstown or Paducah, where he will be heralded as a hero. And — this was a curveball, even for me — the charge had nothing to do with Breonna’s death. It was for endangering some white folks next door who, in the state’s estimation, might not have deserved to die. So, as cynical as my take was, it turns out it wasn’t cynical enough. Breonna Taylor didn’t even get the measure of justice that James Taylor got nearly 20 years ago. And here I thought we’d made some progress since then.
Were it not for the unrest in nearly every American city, looking at things in jade-green lawyervision at any other moment over the last 20 years, I’d have said that Breonna’s civil lawsuit was unlikely to go anywhere at all, let alone bring the family a $12 million dollar settlement. Firing a gun at police? Don’t expect to live through that and don’t bother opening an estate; that’s a five-minute call with a sobbing mother to say “sorry for your loss, ma’am, but we can’t take your case.” I’m glad to have been wrong about that one, and I’m especially glad for the bravery of attorneys Lonita Baker and Sam Aguiar, who took on a case that would have been a sure-fire loser five years ago.
The smoke of all these fires gets in your eyes after a while, so you can’t even see what first-year law students can: There’s the law, and there’s what’s right, and those two things are often conflated. That is, even if these officers had a valid warrant, and even if they knocked, and even if everyone in the damn house was a drug dealer, and even if Breonna’s boyfriend shot first, and even if the law says it’s OK, isn’t it kinda fucked up that cops can break down your door in the middle of the night and kill you over a bag of drugs? Isn’t it fucked up that that’s not murder? Isn’t it fucked up that someone like me, possessed of both a law license and a bleeding heart, can look at a situation like that, scribble some math on the back of an envelope, and conclude, “nah, that’s not a case — criminal or civil?”
Kentucky’s attorney general, Louisville’s mayor and the LMPD no doubt hope that they can contain this raging fire for a few more months, until it all ends up a match tossed in the toilet, and we move right on to the next atrocity like we always do. It’s a safe bet. After all, there is law, there is order, there is a process, and we can tell ourselves that “sometimes it doesn’t work but mostly it does,” and maybe even believe it. White lawyers like me can eat breakfast with their kids in the morning, banter about the day’s news with their spouses, and tuck their little girls in at night knowing that no one is likely to break down their doors and kill them. It’s been that way as long as I can remember.
Dan Canon is a civil rights lawyer and law professor. “Midwesticism”is his short-documentary series about Midwesterners who are making the world a better place. Watch it at: patreon.com/dancanon.