The death of Breonna Taylor is a tragedy. It is a good thing for America that police violence is being looked at with more scrutiny. While there is justifiable moral outrage regarding police actions, especially in light of the indictment against Brett Hankison, there is little discussion about how the actions that led to Taylor’s death could be considered criminal homicide.

As the title of this article states, I believe that Taylor’s death constitutes homicide. In addition, I am going to apply Wisconsin law to this situation as it is relevant for us to understand how the law would apply if this situation had occurred in Wisconsin.

Before I get into the legal analysis, I am going to establish the set of facts that I am working with. This is important because there are many contested facts in this case. I am going to use the most “pro-police” set of facts that I am aware of because if the actions of the police constitute homicide in that view, then it will definitely be a homicide in a less “pro-police” view of what actually happened.

The most “pro-police” interpretation of the incident that I am aware of is what I call the “Ben Shapiro facts.” First, there was a valid no-knock search warrant for Taylor’s apartment. Second, the police did indeed knock on her door and identified themselves multiple times. Third, Kenneth Walker, Taylor’s boyfriend, shot at the cops when they entered the apartment and then the cops, in self-defense, shot at Walker, ultimately resulting in the death of Taylor, who was standing behind Walker at the time.

The cops had a legal right to shoot at Walker because of the Castle Doctrine, which is the legal defense that offers immunity to those acting in self-defense against intruders. Kentucky and Wisconsin have an exception to that doctrine when the police are the aggressors.

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There are four levels of criminal homicide in Kentucky which are in order from least severe to most severe, including reckless homicide, manslaughter in the second degree, manslaughter in the first degree and murder. In addition, the standard to charge an individual for a crime is probable cause. Probable cause means, based on the evidence, a reasonable person would believe the accused person has committed a crime.

In order for the death of an individual to be considered reckless homicide, a person must act with recklessness in causing the death of another. Recklessness is defined in Kentucky law as the “failure to perceive a substantial and unjustifiable risk that a reasonable person in the same situation would have perceived.” A reasonable person would perceive there is a substantial risk of hitting a person standing behind the target you are shooting at.

It is not justifiable to be unaware of your environment when you are using a weapon. There is a reason that every gun range, at least that I am aware of, does not allow a person to shoot if there are other people downrange.

While reckless homicide is a relatively easy case to charge, manslaughter in the second degree is a harder standard to meet. Second-degree manslaughter occurs when a person “wantonly causes the death of another person.” Wanton is defined in Kentucky as being “aware of and consciously disregarding a substantial and unjustifiable risk that could result in death.” While it is potentially possible, I do not think the police officer consciously disregarded the risk that he would fatally shoot Breonna Taylor in returning fire after being shot at.

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Since I do not think the police committed second-degree manslaughter, I will not continue to analyze the other criminal homicide statutes in Kentucky, because if you can’t meet a lower standard then you won’t meet a higher standard.

Now, let’s look at Wisconsin law. There are five levels of criminal homicide in Wisconsin, ordered from least severe to most severe, including second-degree reckless homicide, second-degree intentional homicide, felony murder, first-degree reckless homicide and first-degree intentional homicide. The standard to charge an individual is also probable cause.

Second-degree reckless homicide is defined in the same manner as reckless homicide under Kentucky law — a person acting recklessly in causing the death of another. Recklessness is defined in Wisconsin as “an actor creating an unreasonable and substantial risk of death and that the actor is aware of that risk.” Like under Kentucky law, the police’s actions should be sufficient for a second-degree reckless homicide charge. It is effectively the same law.

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Second-degree intentional homicide is defined under Wisconsin law as “intentionally causing the death of another person.” Intentional is defined under the Wisconsin statute as “the actor either having the purpose of causing the death or is aware their conduct is practically certain to cause the death of another person.” It is difficult to say the shot that killed Taylor was intentional, as the police were returning fire after being shot at. I don’t think a reasonable person would believe the police’s purpose was to kill Taylor, since they were shooting at Walker.

Under Kentucky law, there should have been at least one additional indictment for reckless homicide. In addition, if this event happened here in Wisconsin, there should have been at least one additional indictment for second-degree reckless homicide. Bottom line: what happened to Taylor in Kentucky was wrong — not just morally, but also legally.

Jared Loiben ([email protected]) is a first-year law student at UW-Madison.