There has been plenty of debate surrounding the death of Breonna Taylor in Louisville, Kentucky. But seldom mentioned is the role Supreme Court precedent and the incorporation doctrine played in setting the legal stage for events to unfold ending with the death of a young woman.

Breonna Taylor was in bed with her boyfriend Kenneth Walker in the early-morning hours of March 13 when police broke into her home executing a no-knock warrant issued earlier that day. Walker claims he heard banging on the door but never hear anybody say “police.” When the officers broke down the door, Walker fired a shot, hitting an officer in the leg. Police returned fire, killing Taylor. She suffered at least eight gunshot wounds.

Walker escaped unharmed. After the shooting stopped but before he was taken into custody, Walker called 911 and said, “I don’t know what’s happening. Somebody kicked in the door and shot my girlfriend.”

Officers were ultimately cleared of any criminal wrongdoing in Taylor’s death. A grand jury indicted one officer on reckless endangerment charges for firing into a neighboring apartment.

Under the law, officers were justified in entering the apartment because they had a valid warrant. There is considerable debate about whether or not police announced themselves before entering. Officers and at least one witness said they did. Walker’s 911 call indicates that if they did, he didn’t hear them. Regardless, the police were not required to knock or announce themselves because the warrant was a “no-nock” warrant, meaning officers could legally enter the apartment without any notice.

The grand jury determined that since the police entered the apartment legally, they also had the legal right to defend themselves once Walker fired his weapon. In the eyes of the grand jury, Taylor was collateral damage in a legally justified police self-defense response.

There has been a hot debate about the events that transpired inside Taylor’s home. Were police reckless when they opened fire? Did Walker have a right to shoot? Was it racially motivated? Did police misrepresent facts to obtain the warrant? There is plenty to parse out. But it’s also important to take a step back and look at the legal framework that made the no-knock raid possible to begin with. Without Supreme Court precedent applied to local law enforcement through the incorporation doctrine, police may well have never crashed into Breonna Taylor’s home that morning.

No-Knock Warrants

In the 1995 case Wilson v. Arkansas, the Supreme Court established that police must peacefully knock, announce their presence, and allow time for the occupants to open the door before entering a home to serve a warrant. But the Court allowed for “exigent circumstance” exceptions if police fear violence, if the suspect is a flight risk, or if officers fear the suspect will destroy evidence.

As journalist Radley Balko notes, police utilized this exception to the fullest extent, “simply declaring in search warrant affidavits that all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.”

The SCOTUS eliminated this blanket exception in Richards v. Wisconsin  (1997) requiring police to show why a specific individual is a threat to dispose of evidence, commit an act of violence or flee from police. But even with the opinion, the bar for obtaining a no-knock warrant remains low.

“In order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.” [Emphasis added]

Reasonable suspicion is an extremely low legal bar to meet.

A third Supreme Court ruling effectively eliminated the consequences for violating the “knock and announce” requirement without a no-knock warrant. In Hudson v. Michigan (2006), the High Court held that evidence seized in violation of knock and announce was not subject to the exclusionary rule. In other words, police could still use the evidence in court even though they technically gathered it illegally.

The Supreme Court has also created a legal environment that provides cops broad authority to shoot armed citizens, even if the police are violating the Constitution. For instance, in County of Los Angeles v. Mendez (2017) the Court effectively held that police can shoot a person in their own home even if the officers are violating the individual’s constitutional rights.

Qualified Immunity and the Incorporation Doctrine

Officers who violate no-knock rules or more broadly infringe on rights protect by the Constitution could still face lawsuits. But the qualified immunity defense creates an almost insurmountable legal barrier for victims of police abuse.

Through a series of Supreme Court opinions, federal courts created a qualified immunity defense out of thin air, making it nearly impossible to hold law enforcement officers responsible for actions taken in the line of duty. In order to move ahead with a suit, the plaintiff must establish that it was “clearly established” that the officer’s action was unconstitutional. The “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights. As a result, police rarely face consequences for actions taken in the line of duty, no matter how egregious the violation of rights protected by the Constitution.

Significantly, were it not for the dubious “incorporation doctrine” made up by the Supreme Crout based on the 14th Amendment that purportedly empowers the federal government to apply the Bill of Rights to the states, these cases would have never gone to federal court and we wouldn’t have these blanket rules.

A lot of people believe that the Bill of Rights always applied to state governments. This is simply not true. The Bill of Rights was never intended to bind the actions of state governments. The application of the federal Bill of Rights to the states came about through a series of federal court cases based on the 14th Amendment.

Many conservatives and libertarians support the incorporation doctrine because they think federal courts will protect individual rights from getting trampled by tyrannical state and local governments. That sounds good in theory, but it rarely works that way in practice. In most cases, federal courts expand government power and cement it in legal stone, as we’ve seen with no-knock warrants and qualified immunity. And because of the incorporation doctrine, these expansions of power are not limited to the state where the case occurs.

In effect, the Court sets precedents that become universally applied across the U.S. In terms of local policing, the incorporation doctrine and the application of the federal Bill of Rights to state and local governments protect police officers, allow no-knock warrants, and allow cops to shoot individuals with little fear of legal repercussions — in every city, county and state in the U.S. from Honolulu, Hawaii to West Quoddy Head, Maine.

State and local governments can place more strict restrictions on police officers beyond what the SCOTUS legal framework allows. For instance, Louisville banned no-knock warrants after cops shot Taylor to death. But this rarely happens. In a federalized system, most states and localities defer to the legal requirements set forth by the High Court. The centralization of the legal system leads to a centralization of policy.

A decentralized system where cases were heard under state law and state constitutions would undoubtedly have problems. Some states would probably extend almost complete protection to law enforcement officers just like the federalized system. But surely some would be better.

It might be hyperbole to say the Supreme Court and the incorporation doctrine killed Breonna Taylor. But they certainly created the system that made the events leading up to her death possible. And I would argue the system functions just as designed. It empowers government and protects its agents at your expense. If you don’t want outcomes as we saw in Louisville, stop centralizing power in D.C.