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Brian Lehrer: Brian Lehrer on WNYC. What would constitute justice for Breonna Taylor? Maybe nothing, since the 26-year-old emergency medical technician can't be brought back to life after being shot dead in her bed by Louisville police officers who broke into her apartment with a no-knock warrant. Yesterday, Louisville's mayor and representatives of the family announced two things. One of the largest damage suits ever in a police killing case, $12 million, and very importantly, a list of police department reforms that the family insisted on negotiating, they said they would not take a cash settlement for themselves without systemic change.

We'll examine now whether the reforms announced in Louisville yesterday might serve as a template for cities everywhere, and how meaningful this particular list is. The mayor of Louisville, Greg Fischer, laid them out yesterday, and I'm going to play a two-minute clip of him reading this list.

Greg Fischer: First, to build stronger community connections between our police officers and the people they serve. We will, one, establish a housing credit program to incentivize officers who live in certain low-income census tracts within the city. We will encourage officers to volunteer two paid hours every two-week pay period during the regular work shift in an organization in the community that they serve.

Next, as I've said before, we often ask our police officers to not only keep the peace, but to deal with challenges that society has failed to address, from mental health, to homelessness, to substance abuse, and everything in between. That's not fair to our officers. That's not the right way to address these things challenges. That's why we will create a program to include social workers at LMPD, so they can provide support and assistance on certain police runs for their presence to be helpful. Metro Council has already initiated funds in this activity.

Finally, we must have transparency and accountability for the work that our officers do. Good officers appreciate sunlight on their work, and we will take several steps to shine that light, including the following. We will now require a commanding officer to review and approve all search warrants, affidavits in support of search warrants and risk matrices before an officer seeks judicial approval for the warrant.

We're creating a clear command structure when executing warrants at multiple locations. We're adding additional protocols for money seized as evidence, expanding the random drug testing of officers, and we will negotiate with the FOP in 2021 to expand on the records that can be maintained in an officer's personnel files.

Brian: The mayor of Louisville, Greg Fischer, laying out that long list of reforms yesterday very specific things and we're going to dig into how meaningful they are in just a minute. To be clear, the family of Breonna Taylor still wants to see the police officers who killed her charged with crimes. In addition to all that, here's Attorney Ben Crump.

Ben Crump: The city leadership has done a significant step today, but now it is on Daniel Cameron and the Attorney General of Kentucky's office to bring charges and at the bare minimum, Lanita, second-degree manslaughter charges, because we want full justice for Breonna Taylor, not just partial justice.

Brian: Ben Crump. What do the reforms all add up to? We'll talk about that now and also touch on a few other things in the news if we have time, like the media spin on the shooting of two LA cops, and decisions that keep coming down from the courts on voting rules in swing states, the rules are still not determined for this election. With Emily Bazelon, New York Times Magazine staff writer, Yale Law School professor, and the author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, and Elie Mystal, justice senator for The Nation, and among other things, he was legal editor for the Radiolab Supreme Court series a few years ago, called More Perfect, some of you will remember.

While Emily teaches at Yale Law, Elie went to Harvard Law so they can fight it out. Elie and Emily, always great to have both of you on. I never know if my brain can keep up with you two, but I'll do my best.

Emily Bazelon: Why, thank you.

Elie Mystal: Thanks for having me.

Brian: Emily, in the context of your book on criminal justice reform, does the list for Mayor Fischer add up to something meaningful in your opinion?

Emily: Yes, I think it does. The idea of encouraging police officers to live in the communities they serve is significant and I think lacking in a lot of communities. In a lot of communities, the police don't live in neighborhoods that are impacted highly by crime, and they may not live in the city limits at all, so that's a good start. Then what you're also seeing here is an effort to make sure that search warrants are more carefully supervised.

What we had here in the tragic death of Breonna Taylor was what's called a no-knock warrant, which means that the police can burst in. It was actually changed at the last second, they were supposed to announce their presence. They don't seem to have done that loudly enough. They also don't seem to have known that her life circumstances had changed and that she wasn't necessarily going to be alone in the apartment.

Making sure that this kind of dangerous entry, which is really fraught with risk, is more supervised that the police are using tactics in which someone could be killed as infrequently as possible, that's a start. There are other changes to be made too in terms of trying to reduce the use of force, but they are at least doing some things in Louisville to try to cut down on these really dangerous situations.

Brian: Elie, the same question about the list of reforms.

Elie: I'm glad I'm on with Emily because she can provide the, "Oh, positive look, we're moving forward." No, it's not enough. It's not even close to enough. None of this matters without oversight and accountability, and the reforms do not speak to any real oversight of the police force and how they're going to be judged in the future. If we want to talk about the no-knock warrants, let's talk about the fact that there are already people supposed to be overseeing those warrants, they're called the judges. There's nothing in here that's going to make a judge think differently, restrain themselves, follow the constitution when it comes to the implementation of these warrants.

Brian, I am talking to you now, which means I am missing something actually super important. Right now, in front of the Second Circuit Court of Appeals, which is the court that covers our New York and my living area, the NYPD police union is in the Second Circuit right now, arguing against the reforms that New York City has tried to make in terms of increasing police transparency, in terms of their disciplinary records, making those publicly available.

If we do not have transparency, if we cannot break the power of the police unions to prevent transparency, and if we cannot get judges in district and circuit courts who are going to enforce accountability and transparency upon the police, then we are getting nowhere.

Brian: One of the categories that Mayor Fischer laid out in that clip was transparency. He used that word and he said investigatory records around misconduct allegations would be maintained and not destroyed, even if the officer leaves the department. Significant, Elie?

Elie: Again, notice what he's talking about here. He's not talking about making those records available to the public in terms of a board, he's not talking about making those records available easily to defense attorneys who might have them, he's talking about simply not destroying them. Because the way that they used to do it was that once the officer left their bit, their part of the force, those records were destroyed, they basically lit them on fire. This is how you had that situation where a bad cop could just go from department to department to department, burning out his welcome all the way around, without his records ever just following him internally.

This change, when you say is that significant? It's significant if you understand how truly just depraved the system that they are trying to change is. Promising me that you're not going to burn the records of officers who've committed misconduct is great. Why were you burning them before? We need to get to the point where those records are made transparent to the public.

Brian: Got it. Emily, you singled out before from the list, the incentives to live in low-income areas of the city that the mayor mentioned. How unusual or meaningful do you think that is? New York City, for example, I believe, has a residency requirement for some kinds of municipal workers but not for cops. How unusual would it be if Louisville actually implements that?

Emily: I think it's pretty unusual. Few cities have residency requirements for police. It means that the police come in from the suburbs and they are not from the communities they serve, the people who they're interacting with every day may seem to them foreign and alien, and I think that that disconnects them. It's not enough on its own, because you can still have a blue wall around the police where, because of their experience every day and also sometimes because of the culture of the department, separate themselves from communities, but I think it's a step in the right direction. If nothing else, these are well-paying jobs and the people who have them should be part of paying taxes of the communities they live in.

Brian: We have a caller on this point, so let's take him. Vic in Manhattan, you're on WNYC. Hi, Vic. Thank you for calling.

Vic: Hi, yes. New York City used to have such a law. It was called the Lion's Law and it didn't work out for a lot of reasons and it also was questionable legally, however in [unintelligible 00:11:05] the city does encourage police to live outside the city by giving free parking to all the police. You've walk past every single precinct in the city that you see scattered all around the precinct are personal cars of cops who have driven in from Orange County, go to the Island.

Brian: Thank you very much for that piece of history, I appreciate it. Alvonia in Queens. You're on WNYC. Hello, Alvonia.

Alvonia: Good morning, Brian. I found interesting what your first guest said when it comes to her having someone in her apartment. She had a right to live with whoever she wanted. The thing was the person that they were looking for was no longer there, that was the problem. They weren't looking for her, and they weren't looking for the person she currently had in the apartment. It was someone else they were looking for and that person was no longer there.

Brian: Elie, that's factual, right?

Elie: Yes. There are many problems with what the police were even trying to do that night when they, as you, I think put it correctly, broke into Ms. Taylor's apartment. There is some contention about whether they announced themselves at all. Certainly no neighbor heard them announce themselves. One of the more disturbing pieces of information that I've seen in posts of the shooting is that there was a gap between the rounds of opening fire.

They come in apparently, Taylor's boyfriend shoots, bang, bang, bang, bang, bang, bang, bang, stop for some period of time and then, bang, bang, bang, bang, bang, again. When you talk about what their actions on the ground were, I always come back to the fact that their body cameras were off. That, to me, loops into this conversation we're having Brian, about the City of Louisville reforms.

One of their reforms was that they said we're going to have body cams on when we seize evidence and whatever. They already have a rule that they're supposed to have body cams on when they're enforcing search warrants. Their cameras were off, if we don't have, and this is where I come back to accountability, if we don't have accountability when they violate the rules, then the rules don't matter.

Brian: That seems to happen in a lot of these controversial cases. It turns out that somehow, magically, the body cams that they had were not turned on. Alvonia, thank you for your call. Emily, did you want to add something to that? Did I hear you trying to get in?

Emily: Yes, I think what Elie is stressing is, and you can of course correct me if I'm wrong Elie, but that if you're going to change the police department, you need outside forces to make sure that happens. There's the internal culture of the police department. Can you change training? Can you change the way supervisory officers handle incidents like this and oversee them?

I think what Elie is saying is that we also need the courts. We need legislators. We need people who are not within the department, really making sure to hold them to high standards, because in a lot of these cities, we're seeing that the police departments don't do that themselves. Elie also talked about the role of police unions. We've seen that come up again and again, in these cities, where it's very hard to make lasting changes because the police unions have been successful at fighting them.

Brian: How do we make reforms, Elie, regarding police unions? You used the word, I think, break the unions, before that phrase, and a lot of people might react to that with like, "Well, whatever we might not like about what they advocate, we don't want to go around breaking any unions. They have a right to collectively bargain, and to make campaign contributions, like all the other public employee unions who the same people might support." Go ahead and make that argument or that distinction.

Elie: It's funny to me, Brian, because Republicans have done nothing, but spent the last 50 years going around breaking unions, but somehow the police union, we can't figure out what to do with them. Please. Look, I'm a liberal, I like unions. I think they should collectively bargain and be able to argue for better pay, and good benefits, and all that thing. I think unions are an important facet of our country.

When I'm talking about breaking them. What I'm really talking about is getting politicians to the point where they ignore them, because right now the police unions have too much power in our political space. We have, again, I'm from New York, so I've seen what's happened to De Blasio. What we have as politicians who are too beholden to the unions, too scared of the unions, and unwilling to take actions that are going to be opposed by the unions. We have judges that we appoint by Republican presidents, who will rule against any kind of labor union out there, will rule against any kind of teacher's union out there but when the police union shows up, they're like, "Oh, well, we got to listen to these guys."

Brian: That's the double standard. What do you think the single standard should be?

Elie: I don't think that the police unions are in the best position to make laws or to have opinions on how we should police our communities. They're in the best position to tell us what the officers need in terms of their financial safety and support. They are not in a good position to tell me what a good use of force strategy even looks like. That's literally not their expertise and if it ever was, they burned that credibility a long time ago.

Brian: Troy in Brooklyn says he is an NYPD officer. Troy, thanks so much for calling in.

Troy: Brian, I want to just add that with reforms and changes that everyone wants, even people in the police department, people of color, just because they're union advocates for something, doesn't mean that they have full support by their members. Also, the public always wants something and cries out for stuff, but they don't have a broad enough perspective to understand what are the ramifications. Even with this new requirement that they pass with no-chokehold law and the liability that they're placing on police officers. It's unrealistic to say that you want me to apprehend somebody and don't properly give me the tools to do so.

When somebody's actively resisting. Speaking of someone who has experience, just a female actively resisting, how difficult it is, that sometimes it may take three to four men just to put her in handcuffs. It's difficult with what people cognitively think should be done and what realistically happens. This is what happens when we do these knee-jerk responses, "Oh, we want justice, we want this," but you have to, a lot of times, granted a lot of things that had gone wrong in policing. It's not just one thing that goes wrong. It's several things and it happens on both sides, and there's no accountability for the public when they do wrong or how they responded.

We want officers to be better. We want to make punitive actions against officers, but yet still we are doing social reforms that are making it less punitive from people that do wrong. The victims are not just the police officers, they're the community at large. We're seeing it, I'm living it. I live in Brooklyn. I'm seeing everything that's going wrong, only because we're building a culture of, I can do whatever I want to do and it's bad. It's dangerous for the people who suffer.

They're like, "What can you--", I was like, there's nothing I can do right now. My hands are tied. It's nothing I can do. It's constant. People are suffering with issues that I deal with. It's prostitution, with illegal gambling, with illegal, these calls that we constantly keep getting, but our hands are tied. It's because of the lack of broadness and thoughts in response to how we create reform.

Brian: Elie, since I think he was responding for you, you want to engage with Troy?

Elie: Absolutely, Troy. What I think would actually help you if it would be, if there was real accountability for the wrongdoers on the force. The analogy that I like to use here is open-heart surgery. Open-heart surgery is complicated and difficult as far as I can tell. I could not do open-heart surgery. There are very few professionals who can, and we understand that sometimes open-heart surgeries go wrong and the patients suffer and die. However, if the doctor is drunk while performing open-heart surgery, we have accountability for that. If the doctor egregiously screws up open-heart surgery, we have accountability for that. The doctor is not allowed to get away with botched open-heart surgeries.

It's because we have confidence that a botched open heart surgery will be punished and held accountable, that's how we are allowed to live in a society where we can accept occasional mistakes, good-faith mistakes with open-heart surgery. That is what we need to bring to policing. Yes, it can be very difficult in certain situations to safely apprehend a person who was resisting arrest, and we could live in a society where we give cops some leeway in those bang-bang difficult, close situations, if we held cops accountable when they are clearly in the wrong and that is what we do not do.

All of these laws and changes that we're talking about to bring accountability and transparency to the police force, it is so we can have confidence that the officer who is acting in good faith and trying their best does not get held, does not get punished for his good faith efforts, but we do punish the officer who acted in bad faith and incorrectly.

Brian: Troy, you want one in response?

Troy: Yes, please. You just made an example of the medical profession, which is presumed that there is accountability for. I have not known or seen. Obviously, we know about the civil liabilities and you could sue, and this and that. I don't know of any record-keeping of a bad doctors, or any accountability that's been held to what you said you have confidence in. Your argument again is skewed, because you have to take a broader and more common of a response to all of these things. Whether you're talking about medical profession.

People want accountability. You don't know how much accountability. I don't have any--

Brian: You know, Troy, doctors get sued for malpractice all the time.

Troy: Yes, and so does the police department. The doctors don't pay, the insurance pays. Again, it doesn't make it better for the person who has lost someone if that doctor just keeps moving from hospital to hospital. It's the same example. All I'm just saying to you is, I don't disagree with you that we need and want reforms, everyone does. There is accountability in the police department. I shouldn't say that. In New York City Police Department, for the average police officer, who had no chiefs that are relative, their accountability is pretty straightforward as far as when you do something wrong, or you get caught out.

We constantly get tested. We get drug tested, we get tested by IV. It doesn't matter how we answer the phone. If you don't answer the phone fast enough, there's accountability, punitive damages. The public just is not aware of. They assume that it's like TV, you got a pat in the back, and you get to go home, no.

Brian: Troy, I'm going to leave it there for time. Thank you so much.

Troy: It's not just legally right to shooting.

Brian: Please call us again, Troy. Thank you for your call, today. Elie, very briefly, because I want to ask Emily one more thing before we run out of time. If you want to have one more come back to him.

Elie: What it sounds to me is like Troy is trying his best in a difficult situation. Again, I think that the best way to help Troy is to make sure that the cops who commit wrongdoing are prosecuted and tried for their actions. That would actually make Troy's life easier, not harder.

Brian: On that point, Emily Bazelon, I want to make sure we touch the possibility that the cops who shot Breonna Taylor dead are going to be indicted at all or tried. How do you see the likelihood of a legal basis, Emily, for at least manslaughter, as Attorney Ben Crump called for in the clip that we played, or any other charges against them? I've read that because they were fired upon first by Taylor's boyfriend, who said he thought they were burglars because they didn't identify themselves as police officers, it may be hard to charge them for firing their guns, even if they violated the departmental rules and how they executed the no-knock want. How do you see that?

Emily: I think it's going to be a problem for indicting them. They are going to make a self-defense argument. What we've seen in the past from grand juries, and from regular juries, when officers are actual actually tried is real reluctance to convince police officers who say, "I thought I had to use this force. I had a reasonable belief that it was necessary to do this to protect myself or to protect someone else."

What we've seen in the past is a lot of deference, and the legal standard gives the officers a lot of deference in that situation. It makes sense to try to pressure for justice, but over and over again, people wind up disappointed. I think that's because of this overall standard. One of the things that a few forces in the country have done to try to change this is to make the use of force by the police something they do only as a matter of last resort. It's really different to say, "I can use force if I have a reasonable belief in the moment that I'm threatened or someone else is threatened."

It's very hard to second guess an officer, but if you're saying, I can only do this as last resort, that puts a much higher burden on the police. These individual cases really should build momentum for having this larger change in the legal standards that we use to judge police behavior. Until we have that kind of change, it's going to be really hard to indict cops in these kinds of situations even though that feels pretty heartbreaking in cases like this.

Brian: Elie, just 30 seconds for your last word on this.

Elie: It's hard for white people to indict cops, and it's hard for white people to second-guess cops. I have no problem with it. I think that the problem that we see in Kentucky right now is that when prosecutors want to lose a case, they can lose a case. If the prosecutors wanted this person convicted, charged from the grand jury, the prosecutor controls what evidence the grand jury sees. If the prosecutor wants them indicted, they'd be indicted already.

What we're clearly saying in Kentucky is an effort by the prosecutor, Daniel Cameron in this case, to make sure that the grand jury does no-bill it, does not return a charge, so that he can say, "Look, guys, I tried, but there just wasn't enough evidence,." and these cops can walk free. No, I don't think that we're going to get an indictment, and I think that they're gonna blame it on the grand jury, but what's really happening is that Cameron himself does not want to take this case, does not want to try this case.

Brian: Elie Mystal, justice editor for The Nation and Emily Bazelon, New York Times Magazine staff writer and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Thank you both so much.

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