- Former LMPD officer Brett Hankison has been charged a second time in connection with the raid on Breonna Taylor.
- Legal experts told Insider that this is not double jeopardy for Hankison.
- But they said federal prosecutors will have an uphill battle to win their case.
Former Louisville, Kentucky police officer Brett Hankison found himself in an all-too-familiar situation Thursday when federal prosecutors filed charges against him and three other former or current police officers in connection with the March 2020 raid that led to the death of Breonna Taylor.
Hankison was acquitted earlier this year in state court of other charges related to the raid.
Insider spoke with legal experts Thursday who explained why — despite the previous acquittal — the new charges do not constitute double jeopardy. But they also said Hankison’s previous acquittal and one of the charges against him could make the case against him particularly difficult for federal prosecutors to win.
Hankison’s role in the raid on Breonna Taylor’s apartment
Breonna Taylor, a 26-year-old EMT, was shot and killed on March 13, 2020, when officers executing a search warrant in connection with a drug-trafficking investigation raided her home in the middle of the night.
The raid caught Taylor and her boyfriend, Kenneth Walker, by surprise. Fearing home invaders were breaking down their door, Walker grabbed his gun and shot the officers, who returned fire, killing Taylor.
Hankison was one of the officers who returned fire. He was outside the apartment at the time and fired through a sliding glass door covered with a blackout curtain, so he couldn’t see what he was aiming for.
A ballistics report would later find that it was the bullets from the guns of two other officers, not Hankison, that killed Taylor.
However, he was charged because some of his bullets went through a wall and into a neighboring apartment, where three people were home at the time.
Before Thursday, Hankison was the only police officer facing charges in connection with the raid. Hankison was charged with three counts of wanton endangerment, but was acquitted of all three counts by a Louisville jury in March.
A grand jury declined to indict Sgt. Jonathan Mattingly and Det. Myles Cosgrove, the two officers who fired the fatal shots that killed Taylor.
Kentucky Attorney General Daniel Cameron said his office’s investigation into the matter showed — and the grand jury agreed — that Mattingly and Cosgrove were “justified in returning fire” because Taylor’s friend fired at them first .
This is not double jeopardy
Like the Ministry of Justice Press release According to the new indictments, the new charges against Hankison are separate and distinct from the state’s charges.
While the charges relate to the same incident and set of facts, the two civil rights suits allege that “Hankison intentionally used unconstitutional excessive force, while acting in his official capacity as an officer, when he fired his service weapon into Taylor’s apartment from a covered window. and covered glass door,” according to the press release.
These are “violations of the US Constitution, not state law,” the DOJ explains.
Since Hankison is charged in a different court, double jeopardy does not apply, according to Michael JZ Mannheimer, a professor at the North Kentucky University law school.
“Some people might think that the idea of double jeopardy prevents the federal government from coming in and retrying him since he was acquitted. But double jeopardy doesn’t apply because he’s a different sovereign. The state of Kentucky tried him. He was acquitted and now the United States States can come in as a separate sovereign and expel him,” Mannheimer explained.
How likely is it that Hankison will be convicted this time?
While the US Attorney General’s office has every right to prosecute Hankison for alleged civil rights violations, that doesn’t mean it will be an easy victory.
Mannheimer said either count would be particularly difficult to prove.
The first count relates to the violation of Taylor and her boyfriend’s Fourth Amendment rights, which protect against unreasonable government searches and seizures. Federal prosecutors argue that Hankison used excessive force, which constituted an unreasonable search.
The second count related to the near injury or death of her neighbors. But because her neighbors were not the subject of the raid, the Fourth Amendment does not apply. Instead, prosecutors must use the 14th Amendment, which states that no one shall be deprived of “life, liberty, or property, without due process of law.”
The burden of proving a 14th Amendment violation is much higher, Mannheimer said.
“They have to show that Hankison’s actions were not just unjustified, but shocking to the conscience,” Manheimer said.
Daniel J. Canon, a civil rights attorney and professor at the University of Louisville law school, agreed that Hankison’s case would prove more difficult than the cases against the three other officers, who are accused of falsifying information in affidavits about issue a search warrant at Taylor’s home and then try to cover their tracks.
Canon compared the case to that of Derek Chauvin, the former Minneapolis police officer found responsible for killing George Floyd in May 2020 by kneeling on his neck for several minutes during an arrest.
Chauvin was convicted of violating Floyd’s civil rights, but only after he was found guilty of murder at the state level. The opposite is true for Hankison, Canon said, since Hankison was acquitted before being federally charged.
“I think that says a lot about this Department of Justice. They’re willing to take a chance on a case like this, even when they know a conviction isn’t certain. We haven’t seen a lot of that in previous administrations,” Canon said.
He said prosecutors may have the benefit of a different jury pool than the one that decided the state case. While jurors in Hankison’s previous case would have been drawn from Jefferson County, Kentucky, which includes the Louisville metropolitan area, a federal trial would be drawn from a wider pool of Jefferson and surrounding counties.
And while federal juries tend to be less sympathetic to accused criminals, Canon said, it remains to be seen whether that holds true in these types of cases.
“Surrounding counties tend to be more rural conservative and much more hostile to a defendant, but that dynamic can change when you have a white police officer who is the defendant,” Canon said.