Thursday, September 24, 2020

Part I

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“Justice Is Often Not Easy”: Kentucky’s Attorney General Announces Outcome of Investigation in the Death of Breonna Taylor

By late last night, it was clear that two police officers had been shot in protests that began in downtown Louisville after the announcement by Kentucky’s Attorney General of an indictment against one police officer, but only one police officer on charges of wanton endangerment in the death of Breonna Taylor. Now, as we look at the unfolding story, and it is an unfolding story, we need to recognize that there are massive issues here.

They didn’t instantaneously appear on the nation’s headlines or the consciences of this country. You’re looking at the fact that it was on March the 13th that Breonna Taylor was shot in her apartment after police entered the apartment, serving a warrant, and after Breonna Taylor’s boyfriend had fired at police leading to an exchange of multiple shots from the police in which Breonna Taylor was killed. Now, the officers were acting in the context of an investigation about drug trafficking, but Breonna Taylor was not the subject of the main concern, but her apartment was authorized as a site for search and for investigation.

All of this led eventually to the tragic death of Breonna Taylor, and that led to a level of unrest in Louisville and in the nation that simply added to what had already been a raging cauldron of controversy and confrontation after the death of George Floyd in Minneapolis. A summer of unrest has now reached the point at the very end of summer and the end of September in which the situation is boiled over in Louisville, Kentucky. But yesterday, the much-anticipated announcement came from Kentucky’s Attorney General Daniel Cameron. He is serving as a special prosecutor in this case, but the actual indictment against one of the officers, former Detective Brett Hankison of Louisville Metro Police, was handed down by a Jefferson County grand jury.

But the big issue in the background here, and it was really in the foreground of everything that took place yesterday, was the big question as to whether or not any or all of the officers involved would be arrested and charged with any crimes that had taken place in the course of the investigation, in which Breonna Taylor died. The bottom line was the indictment of one officer on charges of wanton endangerment. That is a Class D felony in the Commonwealth of Kentucky. Those who are found guilty may serve up to five years on every charge, three charges here. But the point is that protestors were extremely disappointed, indeed outraged, over the fact that murder charges were not brought. Indeed, no charges were brought against two of the officers.

But explaining that very clearly to the people of Kentucky in a watching world yesterday, the Attorney General of Kentucky Daniel Cameron said that he had to act on the basis of the facts and the law. Attorney General Cameron himself elected in 2019, an African-American Republican Attorney General here in Kentucky said, “Justice is not often easy and does not fit the mold of public opinion, and it does not conform to shifting standards.” The Attorney General went on to say, “I know that not everyone will be satisfied with the charges we’ve reported today.” He went on to explain, “My team set out to investigate the circumstances surrounding Miss Taylor’s death. We did it with a singular goal in mind, pursuing the truth. Kentucky deserves no less. The city of Louisville deserves no less. If we simply act on emotion or outrage, there is no justice. Mob justice is not justice.”

It is as if he were speaking prophetically as well as accurately. In my view, the Attorney General of Kentucky set out a compelling case. He set out the facts and he explained the law. Here’s where there is a major issue of the Christian worldview that helps us to understand what’s going on here. We understand that according to the Christian worldview, the law is to serve justice, but the law never actually achieves justice.

Furthermore, we’re reminded that according to the biblical worldview, our absolutely just and perfect God commands that we, His people, must seek justice. Indeed, we must pursue it. We’ve come to understand that the greatest achievement of justice, the greatest approximation of justice in this fallen world comes as the result of the rule of law. It comes by an orderly lawful process. Yet, what happened on the streets of Louisville last night is basically a rejection of that process. It was a rejection of that process because it is claimed it is a process that is fatally flawed.

A rightful justice system, a rightful process of laws, said so many of those who were outraged yesterday and continuing in the nation’s conversation, would have met murder charges against any or all of the police officers that were involved. So, here’s the calculus that was being made, here is the moral context into which the Attorney General had to speak. Those who were saying that Breonna Taylor died wrongfully, she should not have died. There was no moral cause for her death. Therefore, those who were the agents of her death should be charged with criminal homicide.

But the problem here is that homicide is a legally defined crime. The actions have to be defined, as described by the law, in the terms of homicide. This is another reminder to us of the Christian worldview principle that not every wrong can be made right by the law. There are all kinds of reasons for that, and that doesn’t disparage the law. It just underlines that the law has limitations. For example, if you consider the fact that there are many wrongful things that are done, that bring injury to persons, that are not actually illegal, are they morally wrong? In many cases they are, but not every moral wrong is a crime.

For one thing, human beings invent creatively and diabolically new moral wrongs all the time that aren’t yet made a matter of statutory law. Though criminal charge can be brought, and by the way, in the United States, given the rule of law which is to offer equal protection to all, you can’t recreate a law to make an action that has already been undertaken a violation of that law, ex post facto laws as they are called. Indeed, something has to be illegal when it is done. It has to violate the law when it is done.

What the Attorney General of Kentucky set out painstakingly and carefully yesterday was the fact that when the actual truths of this case are set out, there was no crime of homicide that was undertaken by any of the officers. Two of the officers, in the view of the Attorney General, and as it turns out in the view of a Jefferson County grand jury, that’s made up of lay people, there was an understanding that two of the officers involved were guilty of no crime against which an indictment could be handed down.

In the background to this, the Louisville Courier Journal, that’s the local newspaper which is often guilty of ramping up the energy on these issues and the controversy actually offered the fact that almost all criminal justice attorneys that had been cited and questioned by the newspaper indicated that it was extremely unlikely that criminal charges, certainly charges of murder, would be brought against these police officers, because the law doesn’t substantiate those charges. One news story in the Courier Journal cited Frankfort Attorney William E. Johnson, who we’re told was admitted to law practice in 1957, and is considered the Dean of Kentucky Criminal Defense Lawyers said, in explaining the situation, “When a shot is fired by someone in the house, it is logical and pursuant to training that the officer or officers would return fire.”

In the case of the investigation that led to the warrant that was issued for the home of Breonna Taylor, when police entered the apartment on the fateful night of March the 13th, Breonna Taylor’s boyfriend, Kenneth Walker, fired at police. Now, he had a license to carry the gun, but he fired at police. There’s controversy as to whether or not the police clearly identified themselves. But the Attorney General said that he had eyewitness testimony that they had identified themselves. Nonetheless, they were fired upon. One of the officers was hit severing the femoral artery. The officers returned fire. They returned a lot of fire. In the course of that exchange of fire Breonna Taylor was herself killed.

As many have pointed out, the actual criminal statute concerning homicide requires, in the state of Kentucky, it is generally elsewhere, some form of intentionality. There has to be the intention to kill. The Attorney General made a very clear statement about the fact that there was no basis for saying that the police officers went there intending to kill anyone.

But there are many who are hurt and morally outraged because they had made the moral equation that Breonna Taylor’s life was lost, therefore it must be murder. If there is any charge less than murder, much less, no charges at all against these police officers, then that meant that Breonna Taylor’s life was worthless, or not granted the worth that would have been recognized to others. But in the face of the law, the question came down to the facts of the case and the facts of the law. The Attorney General said that those facts do not justify in any way, any form of a charge of murder.

Part II

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Justice and the Law Are Not Always the Same Thing, Even When the Law Is Just

Now, here’s where Christians have to think very carefully. If indeed this is a system of law that says that Breonna Taylor’s life was not as worthy and sacred as any other life, then we would have a huge problem. If there were to be proof that in some sense the system of justice in this case had discounted her life in a way that would not have applied to others, then we would have a huge problem.

But we also have a huge problem when people are looking for moral satisfaction from the law that the law cannot give. That raises an entirely different background issue for Christians to think about. That is that the rule of law, as human beings have learned by hard experience, and as I believe the biblical worldview underlines and affirms, the rule of law is the greatest way we have to approximate justice and to try to achieve justice.

The rule of law means that you have laws that are written down with words, and sentences, and statements, and they apply to everyone all the time. Now, the law is never perfect because human beings are never perfect. The law is never perfectly written. It’s never perfectly applied. It’s never perfectly investigated, but we also understand that it’s important to have a separation of authorities here. Now, we understand this as based in the Christian worldview. When we think about the separation of powers in our federal government, our legislative branch, and the judicial branch, and an executive branch. We don’t allow one person or even one branch of government to be the judge, the jury, the executioner, to be the executive and the legislator, and the judge.

Instead, we separate those responsibilities into different branches of government in order to distribute the authority and to distribute the risk. The same thing is true in our criminal justice system. The police make arrest, but they can’t indict. Grand juries can indict, prosecutors prosecute, but they can’t bring a verdict. The judge adjudicates, the jury hands down a verdict in serious criminal cases such as this. But as you’re looking at the entire process, we don’t allow any one agent, we don’t allow any one agency to have the responsibility from the beginning to the end. So, even in the announcement yesterday, you had the Attorney General of Kentucky and you had a grand jury impaneled in Jefferson County, that is in Louisville.

You had numerous people who were involved. You had legal authorities. You had police authorities. You had multiple layers of investigation. Now, that does not ensure that everything right takes place and that nothing wrong takes place. But we have learned by the rule of law that distributing those responsibilities is far better than concentrating them in any one person or any one office or agency. But here’s where we step back and say that the rule of law means that we have a process. This is frustrating to many people because the process does not move quickly. It often doesn’t get where we individually would want it to go.

We, naturally, and we might say even sinfully, but naturally, given our own impulse to justice and our own understanding of the world, when something like this arises, we in our own hearts and minds have an idea, even an impulse, even a moral urgency, to believe this is how the law should operate. But as it happens, the law often doesn’t operate that way. It is a process. It is a process of investigation. It’s a process of charging. It’s a process of trial with not only a prosecution agent, but also a defense agent. Attorneys representing both the state and the people on the one hand, and the accused on the other hand.

Under the rule of law, there are protections for anyone accused of a crime, even before there is any kind of indictment. Everything has to follow a process. Now, that process is only as good as the process is developed. It’s only as good as the human beings who were involved in it. Every process, given the frailty and the fallenness of humanity, every process is imperfect and every human person involved is imperfect. But what we’ve learned over time in very hard experiences that without the rule of law, there is nothing left but some form of mob violence. Mob violence can offer catharsis that is to say. The mob can say, “We’ve achieved justice.”

But over time, when you look at mob justice, all you’re left with is the mob, no justice. This is where we also have to say, there are times in which there is a moral unrest. There is a moral urgency that is quite legitimate. The legitimate concern here is making clear that Breonna Taylor, a child made in the image of God, bore full dignity and sanctity of life. That means that her death can not be treated any differently than any other person’s death under the same circumstances. What you have is a process here, which is supposed to operate in such a way as to ensure that that takes place. What you have in the protests that have been undertaken in the streets of so many cities is the claim and the charge that the system is broken.

It doesn’t work that way. As Christians, we understand that the system isn’t perfect. Police aren’t perfect. Prosecutors aren’t perfect. Juries aren’t perfect. Judges aren’t perfect, and because of that, there needs to be all kinds of protections put in place. Indeed, that’s why we have an appellate process. That’s why we have a criminal justice process that isn’t even finally over with an initial conviction in most cases. But the reality is, without the rule of law, we have no hope of achieving justice. The reality is that even given very legitimate urgencies, without the rule of law, we’ve got nowhere to turn. There is grieving and there is deep hurt on the part of many.

Just think of Breonna Taylor’s family. They have lost a daughter, sister, friend, family member. Just think of a community that is still wounded and continually wounded with a sense of loss and with a sense of injustice. We can understand that. We should understand that. We should sympathize with that, but we also have to understand that for any of us and for all of us, there is no rescue except respect for the rule of law. There is no rescue except leaning into the facts, leaning into the law, leaning into the truth. This also reminds us that as we are looking at a situation like this, you have to come up with some kind of distribution of responsibility.

When you look at what is undeniably a tragedy, and I am quite certain that every single law enforcement officer involved in the Breonna Taylor incident would say it was a tragedy. There has to be some distribution of responsibility. As you look at this, there were police officers involved. There was a judge who had approved a warrant. There were all kinds of persons involved in the investigation. Yes, there was Breonna Taylor, and yes, there was her boyfriend, Kenneth Walker, and yes, there was involvement with others even before who were the subjects of this investigation. Yes, there were investigative officers of the police after the shooting.

Yes, you have the Attorney General of Kentucky, and you have the grand jury here in Jefferson County. There is a distribution of responsibility. But one of the things that frustrates many is that in some cases there is no criminal responsibility, and that just shows the limitations of the law. But in this case, there were criminal charges handed down by the Jefferson County grand jury yesterday, three charges of wanton endangerment against one of the officers. In this case, former Detective Brett Hankison, who was fired by the police, by the way.

The only one in the involved officers fired because of what the police authority said, was a wanton disregard for human life in firing so many shots that eventually hit not only Brianna Taylor’s apartment, but two others, and when the officer had no direct line of sight. That was ruled by the police to be irresponsible. The Attorney General announced that the grand jury had handed down three charges of Wanton Endangerment. That’s a crime, that’s a felony in the State of Kentucky. It comes down to the fact that this grand jury said that this particular former officer had acted in a way that was so irresponsible it crossed a criminal threshold.

In the aftermath of the announcement yesterday, an attorney working with the Taylor family, Ben Crump said on Twitter, “If Brent Hankison’s behavior was wanton endangerment to people in neighboring apartments, then it should have been wanton endangerment in Breonna Taylor’s apartment, too. In fact, it should have been ruled wanton murder.” Now, that’s a statement we understand was made in order to make, you might say, a political or a moral point. It didn’t really make a legal point. I was particularly distressed to see so many people outside of Louisville, outside of Kentucky making statements for popular consumption. This would include the Governor of Illinois and the Mayor of Chicago.

As the New York Times reported, the Illinois Governor said, “The grand jury’s lesser charge of a single officer does not address the loss of her life, not nearly. This is,” said the governor, “to put it simply, a gross miscarriage of justice.” Chicago Mayor Lori Lightfoot also called the announcement an injustice. But it’s easy to say that from afar, and I dare say that if this were a case that originated in the State of Illinois, rather than in the Commonwealth of Kentucky, this governor in Illinois almost as surely would have had to have spoken differently. The same thing’s true if the case had involved the Chicago Police Department and the Mayor of Chicago was speaking about her police officers, rather than those in the city of Louisville.

The false context here is arguing that there are only two options. Option (A), fully empathize with the community, fully empathize with the family of Breonna Taylor, fully affirm the dignity and sanctity of her life, or (B) follow the rule of law. The fact is those can’t be two polar opposite positions, or were doomed.

Part III

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Mob Justice Is an Oxymoron. In the End All You Have Is the Mob, No Justice.

But what happened last night in the city of Louisville and is still unfolding, reminds us of the fact that we are always, as human beings in a fallen world, only so far from anarchy and chaos. In a biblical theology, let’s remind ourselves, God brought glory to himself by bringing order out of chaos. He was not satisfied with chaos. He brought about by his sovereign design an order that demonstrated his glory.

An order that includes the entire cosmos and includes us as human beings. Yes, every one of us having a sanctity of life and a dignity that is ours, because he has made us in his image. But in a fallen world so corrupted by human sin, anarchy and chaos are always close. When you see it, you see it on the streets of America in recent weeks. When you see it, as we’ve seen on the streets of Louisville last night, what you see is incompatible with a society moving forward and making progress in dealing with these basic issues. If you do not affirm the rule of law, and instead you move toward something like mob justice, as I said, all you’re left with is a mob, no justice.

Part IV

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Officers Down: A Responsible Society Respects the Role of Police

But last night, with the confirmation by Louisville police authorities that at least two police officers had been shot, the entire situation escalates to a new and very ominous level. We have to pray for those police officers and their families tonight. We have to affirm the fact that when we, as a society, ask the police to do their job, we’re asking the police to do their job in our place. We’re asking some very committed individuals to put on a uniform and to wear a badge and to do for us what we individually cannot do. We assigned to them and they take on a responsibility for the rule of law. Without them fulfilling that responsibility, there is no rule of law.

That’s why any sane society has to be really clear about protecting those who work to protect us. Any society that depreciates police, that makes police vulnerable, any society that does not hold those who do violence against the police fully responsible and accountable is a society that embraces anarchy and chaos. What happened on the streets of Louisville last night was a tragedy, and it can lead to further tragedy that is just based on prior tragedy. The only escape from tragedy is doing the right thing in the right way. The rule of law is the only way that we can get there. Respect for the law as the law actually is. Respect for the truth as the truths are revealed.

Respect for the facts as the facts have to be confronted. Making reforms and bringing about changes to improve the system from top to bottom, yes. But affirming the rightness of the rule of law and the necessity of order in society, well, that’s fundamental. Without that, we don’t have any hope.

Day by day on The Briefing, I ask Christians to think together. We need to think together biblically about these things, but we also need to pray. I want to ask you today to pray for the city of Louisville, to pray for this entire community, to pray for our nation, to pray for justice, yes, to be pursued and righteousness to prevail, to pray for peace to take place. Not only on the streets of America, but in the hearts of Americans.

We need to pray for calm minds. We need to pray for calm streets. We’ve got to pray for those who on our behalf take on the responsibility of confronting anarchy and preserving order. We need to pray for those who take on particular responsibilities, such as serving as the Attorney General of the Commonwealth of Kentucky. They do so in order to bring about justice and righteousness. We need to pray for communities that are hurting, families that are grieving. We need to pray for a community that is now confronting disorder, rather than order, and harm rather than healing. We have to recognize that’s increasingly true all over this country for the entire nation in this crucial year.

If we don’t pray for our nation now, when would we pray?