Fourth day of testimony in the federal civil rights retrial of Brett Hankison

LOUISVILLE, Ky. (WAVE) – It’s the fourth day of testimony in the federal retrial of Brett Hankison. WAVE problem solver Mark Stevens is in court providing live updates:

9:43 a.m. – The government says it will call a witness and then rest. The defense says their witnesses aren’t here yet. They expected to get here around noon. The judge says they will discuss the motions in between while the defense lines up its witnesses. The defense says it will have three witnesses on Monday. They expect closing arguments on Tuesday. (There will be no hearing tomorrow due to a previous scheduling conflict)

9:47 a.m. – The final government witness is Brandon Hogan. He has been with LMPD for 16 years. The government first asks about his background. Hogan conducted firearms training for new recruits between 2021 and 2023. Prosecutors are questioning him about target identification.

9:52 a.m. – Hogan says officers were trained to be able to see their target. He also says officers can’t shoot just because another officer shoots. Each officer must be able to identify the threat individually. Hogan was also part of the SWAT team in March 2020. He was in the middle of the line of SWAT officers approaching Breonna Taylor’s apartment. It covered the sliding glass door that Hankison shot through. Hogan says the door was shattered and had bullet holes in it.

10:04 a.m. – Prosecutors ask if he tried to review the document. Hogan said yes to make sure it was safe for officers. He used his rifle-mounted lamp to illuminate the glass. He couldn’t see through it. Prosecutors question whether Hogan could have shot through. Hogan says no, he couldn’t see any threat. Someone would have had to open the blinds so they could see a threat.

10:07 a.m. – When SWAT arrived, Hogan told prosecutors he couldn’t see them through the sliding glass door in the apartment. As he looked at the bullet holes, he told prosecutors he hoped they came from the inside out. He said he couldn’t see how the officers outside could have shot into the windows since they were covered.

10:10 a.m. – Prosecutors question how target recognition applies to an apartment complex. Hogan says it applies everywhere. In an apartment complex this is essential because you know there are people sleeping there. When you shoot wildly, the bullets are not like in the movies, they penetrate everything. Hogan says if you don’t have target recognition or miss, the bullets will pass through walls and potentially hit other people.

10:17 a.m. – Hogan was wearing a body camera that night. The prosecutor plays it for the jury. It shows the SWAT team securing Taylor’s apartment. The television was on in her bedroom. Something was playing. The prosecutor asks if Hogan can see lights in the parking lot from Taylor’s room. NO.

10:18 a.m. – Defense round. Jack Byrd will ask questions.

10:19 a.m. – Byrd asks Hogan when an officer shoots, it depends on the totality of the circumstances. Hogan says: Yes, it is what you perceive. Byrd asks: Did you know what Hankison saw? Hogan says no, he doesn’t know what Hankison perceived.

10:25 a.m. – Byrd asks how bright a muzzle flash is. Hogan says it can be pretty bright. Byrd asks, “No one fired when you covered the door?” “Right,” says Hogan. Byrd asks what brought SWAT there. Hogan says they were told of a barricaded person with a rifle.

10:30 a.m. – The government returns to power. They have Hogan read what Hankison said at the last trial about how he couldn’t see through the window. The prosecutor asks whether your weapon is allowed to be fired based on these circumstances. Hogan says no, you don’t have ID.

10:30 a.m. – The prosecutor asks, “Does that change if someone has a gun, or do you think someone has a gun?” Hogan says, “No.” Byrd contacts Hogan. “You don’t know what Hankison perceived that night?” “Right,” says Hogan.

10:31 a.m. – The United States rests its case.

11:08 a.m. – Hankison’s defense team is seeking an acquittal, saying the government has not proven its case.

11:11 a.m. – Donald Malarcik says when a person dies they no longer have constitutional rights. He points to another case from Indiana. Malarcik says the government has presented no evidence that Breonna Taylor was alive when Hankison fired his gun. He goes on to say that the government has presented no evidence that Taylor was not free of movement at the time Hankison fired his weapon.

11:13 a.m. – Malarcik says if Taylor had already been shot by Cosgrove, there would be no violation of the 4th Amendment by Hankison’s shooting. He argues that Taylor should have been aware of her disenfranchisement. He says the government’s case shows Taylor was dead when SWAT arrived.

11:14 a.m. – The judge points out that the government played a 911 call from Kenneth Walker that suggested Taylor was breathing. He also told the dispatcher that she was breathing. That call came after all shooting, including Hankison’s shooting, had ended. Malarcik says that doesn’t prove Taylor didn’t have freedom of movement.

11:18 a.m. – Malarcik says Hankison moved while Cosgrove fired, hitting Taylor. He says there is no evidence that Taylor was moving freely when Hankison fired. He says Hankison couldn’t have impeded their movement when he shot through the windows.

11:20 a.m. – The judge asks, “So does Taylor have to be able to move or be killed instantly? If you’re lying somewhere and you’re shot, you can’t be arrested?” Malarcik says it’s not in his responsibility to prove this. He says the government must prove that Taylor was moving when Hankison fired.

11:22 a.m. – Malarcik then moves on to Hankison’s stubbornness. He says the government’s evidence does not prove that Hankison knew he was shooting a person. The judge asks, “So can blind shooting never limit a person’s civil rights?” NO.

11:23 a.m. – Malarcik says the government has presented no evidence that Hankison intentionally committed this crime. The judge said a reasonable officer would have to assume it was an apartment building based on the layout of the doors and cars in the parking lot.

11:24 a.m. – Judge says a reasonable officer would have to assume multiple people were present.

11:26 a.m. – Malarcik moves on to the second issue. He says there is no evidence that Hankison knew there were three people in the apartment when he shot. So how can the government prove that Hankison’s intent in the shooting was to deprive neighbors of their rights? Malarcik says there is no evidence that Hankison intended to punish or hurt neighbors when he fired.

11:28 a.m. – The judge asks Malarcik to explain why this isn’t intentional. Malarcik says the jury instructions said they needed to find Hankison, who wanted to punish the adjacent neighbors. Malarcik says the government has provided no evidence of this.

11:29 a.m. – Prosecutors say there is no question there is enough evidence to send this case to the jury. He says there is ample evidence that Breonna Taylor was alive. He also argues that defense issues with freedom of movement are misguided. He says Taylor had no freedom of movement when police began the search process. He says there is evidence that Hankison shot Taylor over her head, further restricting her freedom of movement.

11:31 a.m. – The government also says it just needs to prove that Hankison used more force than necessary. They say the evidence that Hankison violated his training is enough. They say Hankison didn’t shoot into the air, but into a building.

11:32 a.m. – The judge asks, “So since a shot was fired from the hallway, Hankison knew there were people in the apartment, he had to know that?” “Yes,” says the government.

11:33 a.m. – The government says it only needs to prove that Hankison used legally unwarranted force that affected other people, even if he didn’t know the neighbors were in the apartment next door.

11:34 a.m. – Malarcik comes back and says the government has presented no evidence that Taylor had freedom of movement when Hankison shot. The judge asks, “How much exercise is required?” Malarcik says the government must provide evidence. He says the only evidence the government presented was that Taylor was breathing. Malarcik says it would be different if Hankison went in and stopped her from breathing.

11:37 a.m. – Prosecutor returns. He says shots ringing over her head seconds after being shot indicate a seizure.

11:38 a.m. – Judge says we’ll be back at 12:30 p.m.

12:49 p.m. – The judge reviewed the 911 call and neighbors’ statements. She says a reasonable juror might believe that Kenneth Walker asked Breonna Taylor to breathe and that Taylor was still alive after the shooting ended.

12:51 p.m. – She says the government has presented evidence and a jury could conclude Taylor is still alive. She moves on to the defense’s second argument. The judge says the motion argument is too literal. She says there is also case law that says once you start shooting into an apartment.

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