The War Rages On

The attacks by politically motivated prosecutors against police officers are showing no signs of abating.

What might appear to be a pause is only due to the fact that the news accounts of officers being criminally charged have lost their appeal at being reported as breaking news. These incidents have returned to their rightful place as local stories. No longer do waves of reporters from around the country descend on locations to do nonstop reporting of an officer or officers being criminally indicted.

They try to squeeze as much juice out of the orange as they can. They look under every sewer cover, inside every dumpster to find some cop-hating advocate to interview. A sobbing mother sitting next to ambulance-chasing attorney Benjamin Crump who parachutes into the city involved always makes for great TV. We have to listen to how the deceased was a good boy or girl who was just on the cusp of getting their life back together even though they were a career criminal involved in a criminal act that contributed to their demise. A photo of the crook as a smiling 5-year old, even though they are now an adult, is priceless. The more emotion and anger the media can stoke up the better.

Rioting that breaks out, including looting of businesses and arsons, are reported as “mainly peaceful protests”. Most of the people who have a camera and a microphone shoved in their face have no knowledge about the incident that led to the indictment, but who cares? Why not let these uninformed take a few whacks at the local police agency as if it is some sort of sport. Any source who witnessed the incident and might add balance to the media coverage is conveniently ignored.

One of the signature cases in the police use of force that led to criminal indictments occurred in Kentucky in 2020, where officers from the Louisville Police Department working on a narcotics trafficking case obtained a search warrant for an apartment. I find this case to have had its share of problems from the onset. The search warrant appears to have been faulty. There seemed to be a lack of proper supervision over the case which may have lent some objectivity and guidance about what officers were doing. I want to be fair, here. I did multiple TV and radio news interviews on this case at the time and pointed out that in a perfect world, the police could have performed better. But, I said, this is not a perfect world and policing is not an exact science. Next, let’s review a few of the facts.

Police approached the apartment and knocked and announced. They had approval, however, from the court for a no-knock entry. For non-police readers here, this is for the safety of the officers and to prevent the destruction of evidence, which often happens in these incidents. It gives officers an advantage of the element of surprise. It is also common for occupants of the residence to jump out of windows in order to escape, so police had the perimeter secured by officers outside. When officers breached the door, they were fired upon by Kenneth Walker, a known drug dealer. His shot struck one of the officers in the leg requiring surgery. Officers returned fire after being fired upon. Walker’s girlfriend, Breonna Taylor, whose name was on the apartment lease, was was killed by shots fired by officers after they were fired upon. She died as a result. An officer with outside perimeter containment, Brett Hankison, heard the shots and believed that his colleagues were being shot at and he fired shots into the apartment he believed the shots came from. In fact, he fired into an apartment that wasn’t involved but his shots struck no one. So, now let’s look at the aftermath.

There is a lot of conflicting information involved in this case. As a trained investigator and having investigated numerous police uses of deadly force as a member of the Milwaukee Police Department before I became sheriff, I can tell you that this conflicting information is normal. Everybody sees and interprets things according to their own experiences. Police officers are trained observers. Everyday citizens are not. So, the fact that these post incident statements by everybody who was there are in conflict should only be problematic for the prosecutor reviewing the case for a potential indictment and court trial. In the pre-Ferguson, Missouri days, most prosecutors realized that it would be difficult to obtain a conviction and objectively gave the benefit of the doubt to the officers finding the actions of officers using Supreme Court landmark decisions as a guide to be justifiable under the circumstances based on the reasonable officer doctrine. That was then, however, and this is now. Now these incidents are judged through the lens of 20/20 hindsight, politics and mob mentality.

A criminal indictment against the officer with outside containment responsibility was handed down in a Louisville state court against one officer. A jury acquitted the officer of wanton endangerment for firing into an apartment without knowing what he was firing at. Four officers were terminated after an internal investigation. This prosecution should have ended there. But it didn’t. Prosecutors weren’t looking for justice. They were looking for revenge against police. They were trying to appease an angry mob. It failed.

Now enter federal prosecutors, hell-bent on taking down someone for this unfortunate event as they took their case to a federal trial for prosecution against the lone officer who was acquitted in state court. Recall that this incident happened in 2020. It’s now late 2023. This federal prosecution was trying to have a do-over since state prosecutors were unsuccessful. This has turned from a prosecution to a persecution of police.

A federal jury returned last week unable to reach a verdict. The judge in the case had them go back several times to further deliberate after informing the judge several times they were “honestly and reasonably deadlocked.” The federal prosecutor tried shamelessly to get the judge to give the jury more information to help them find the officer guilty even though the judge ruled that the jury was not entitled to additional information. The jury remained deadlocked, and the the judge finally accepted that they were hopelessly deadlocked and declared a mistrial. You would think that the feds would let this go at this point. You would be wrong, as the prosecutor has vowed to move forward with another attempt to prosecute, or should I say persecute the officer.

As the news magazine Reason pointed out in a column on this case and deadlocked jury decision, the Constitution says the prosecution should have stopped after the state acquittal and even more so after this deadlocked jury decision in federal court. It further points out that it is correct to believe that officers should not be above the law, but that the law also should not be above them either.

Sheriff David A. Clarke Jr. is former Sheriff of Milwaukee Co, Wisconsin, President of America’s Sheriff LLC, President of Rise Up Wisconsin INC, Board member of the Crime Research Center, author of the book Cop Under Fire: Beyond Hashtags of Race Crime and Politics for a Better America. To learn more visit www.americassheriff.com