Wendy’s Burned, But Will Rolfe Walk?

In the heat of Atlanta, Fulton County District Attorney Paul Howard announced that fired Police Officer Garrest Rolfe would be prosecuted for felony murder in the killing of Rayshard Brooks. As with charges against fired Minneapolis cop Derek Chauvin a few weeks earlier, people cheered the charges, and again the upped charges, notwithstanding their dubious nature and, as reflected by the final results of the Medical Examiner’s autopsy, the serious doubt that Chauvin’s knee was the cause of death.

But surely Rolfe, who shot Brooks in the back three times. will be convicted? Don’t be too sure.

At his press conference, Howard reinvented what happened, what was seen on the various videos of the shooting, to make two remarkable assertions. The first was that Brooks presented no threat. The second is that he pivoted from Tasers not being a weapon capable of being deadly or causing serious physical harm, the opposite position from his press conference two week before when it was the cop firing the Taser, to Rolfe knowing the Taser was spent, and therefore incapable of doing harm, before firing.

Mr. Howard said that Officer Rolfe, before opening fire, must have known that the Taser that Mr. Brooks had taken had already been fired twice — and that this model of Taser was only capable of two shots.

And that is certainly something to be considered, but hardly dispositive.

Mr. Brooks was running, and it seemed like escaping the situation was his only goal, some experts said. And although Georgia officers are taught that Tasers are a deadly threat because they can disable officers long enough for their guns to be seized, that threat is diminished when a second officer is present as backup.

Use of force should be proportional to the threat, the experts said.

But these concerns, while certainly valid, aren’t the only considerations.

But whether the officer should have known how many times the Taser had been fired — or could have reacted quickly enough to that knowledge — was a separate question.

“That’s a high expectation in the middle of a fight, that an officer is going to know every single fact that we get to see after the fact with an analysis of the video,” said Roberto Villaseñor, a former police chief in Tucson, Ariz., and a member of former President Barack Obama’s Task Force on 21st Century Policing.

The trope of “split second decisions” is usually a ripe source of ridicule against cops, but this was one of those instances where it applied.

“There’s a lot of things that occur in a dramatic, volatile situation that you might not be aware of,” he continued. “You have adrenaline pumping, you’ve got fear working, you’ve got the fight-or-flight syndrome going on — you’ve got a lot of things that are affecting your perceptions.”

Beyond the Taser, it was clear from both the physical altercation and the firing of the Taser that Brooks was willing to harm a cop. Once that recognition occurs, the First Rule of Policing kicks in, as explained by Ohio Police Officer Greg Ellifritz, with full force.

Brooks could have been armed with a hidden firearm in addition to the stolen Taser.  Put yourself in the officer’s position.  The ambient light conditions are low.  You just fought with a violent felon.  That felon stole your partner’s Taser.  He may be armed with his own gun or he may have also stolen the second officer’s firearm without your knowledge.

You see the felon extend a firearm-shaped object at you and fire.  You see a flash and hear a popping sound.  What might you think is happening?  I think it’s perfectly reasonable to believe that Rolfe thought he was taking gunfire and would be shot at again unless he stopped the threat with his firearm.

But he shot Brooks in the back?

A suspect who is running away from the officer can turn his shoulders, fire a shot and then have his back turned to the officer in an average of .14 seconds.  That’s a shorter time period than it takes for the officer to physically pull the trigger and the bullet to hit the target.  On average it takes an officer .56 seconds to recognize that type of  threat and make the decision to shoot.  Do you see the problem?  The bad guy shoots.  The officer decides he’s facing a lethal threat and must fire back.  The bad guy has turned his back and is no longer an immediate threat before the officer processes the information and fires the shots.

The point isn’t whether Rolfe was right, but whether his shooting Brooks was criminal. Because Brooks was fleeing, many have latched onto Tennessee v. Garner, relating to the authority to shoot a fleeing felon. But that’s only one perspective, the other being the “Reasonably Scared Cop Rule” under Graham v. Connor. The “shoot” must be objectively reasonable, but from the perspective of a trained cop, not a juror.

This is where the burden of proof in a criminal prosecution comes into play. Unlike punditry about the shooting, or inflamed passions about cops killing black guys, the question at trial will be whether Rolfe’s conduct was so unreasonable under the circumstances, as seen through the eyes of an experienced police officer, that his guilt has been proven beyond a reasonable doubt.

In other words, we can disagree vehemently about whether it was the right call, the best call, the availability of alternatives that would have prevented this from happening or saved Rayshard Brooks from being shot. There is, without a doubt, plenty to argue and disagree about. And that’s exactly why Rolfe will, if he gets a fair trial, walk.

The very issues being argued about are what constitute reasonable doubt, in this case a gap so big you could drive a Mack truck full of reasonable doubt through it. None of this is to say it was a “good” shoot, or that if MADD hadn’t made drunk driving a zero tolerance offense such that the cops had little choice but to arrest him, they could have driven him home and everyone could go home for dinner alive. But even if this wasn’t close to a “good” shoot, it’s not murder.


37 thoughts on “Wendy’s Burned, But Will Rolfe Walk?

  1. egon

    SHG, haven’t been tracking your blog for a few months. The madness of this case drove me to the shores of reasonable dialogue today and glad I did. Thank you for this post.

    The psychology angle of this case is rather clear, which you address. This particular incident unfolded near the cusp of human processing ability.

    For what it’s worth, high speed low drag operators (special forces/SWAT kinda folks) sometimes practice shooting on something called a “Rogers Range.” On this range, developed by Bill Rogers, 6 or 4 inch metal circle cut outs are randomly exposed and retracted with a shot window of .25 seconds. It’s incredibly fast.

    This kinda training isn’t implemented on DoD installations, that I’m aware of. DoD members have to attend civilian shooting schools for this kind of range. This is to highlight this kinda training isn’t widely available.

    This leads to a conversation I’m not sure many can stomach as it deals with: is everyone gonna be able to play at the Pro level? There’s a lot of talk about “police need more/’better’ training” and I’m not so sure folks who say this entirely understand the issues here. As again, you noted in this post, in these kinds of cases we are literally pushing up against human processing speed.

    Here is a video of a Rogers Range:


    1. SHG Post author

      While the vid is against the rules, I’ll leave it as it raises some valuable points. There is, of course, the usual “shoot/don’t shoot” drill as well. But an important distinction here is between the rules for use of force v. criminal conduct by a cop. There is much to be discuss about the former, but not every less-than-perfect decision turns a poor choice into a crime.

  2. delurking

    It certainly doesn’t help people come to reasonable conclusions when police officers spew obvious BS: “A suspect who is running away from the officer can turn his shoulders, fire a shot and then have his back turned to the officer in an average of .14 seconds. ”

    Really? Grab your phone, go to the stopwatch, and try to get it to start/stop in 0.14 seconds. That’s just two twitches of your finger, with no physical button to push, and I bet you achieve 0.14 seconds or faster less than half the time unless you practice. Forget average, nobody can rotate their shoulders to the side, shoot, and turn back in 0.14 seconds, while running.

    1. Elpey P.

      Whether the source article botched this or just poorly communicated it, the final turning back would be the relevant time frame, not the full motion. The reaction time would start with the threat, not before it.

    2. Anonymous Coward

      You would be surprised how fast someone can shoot. Record times for most Steel Challenge stages are under 2 seconds, to draw from a holster, hit 5 targets, and re-holster. Pistol caliber carbine times are even faster. Even club level competitors can clear stages in 3-5 seconds

  3. B. McLeod

    The murder is shaky, but the prosecution may be able to get somewhere with the post-shooting assault charges. Part of their reward for charging aggressively will be having to suffer through the trial on the implausible counts.

    1. SHG Post author

      You have a keen ability to read between the lines of a post about murder to bring up post-shooting assault. Nothing gets past your mad skillz.

      1. B. McLeod

        The post seemed to be evaluating whether Rolfe will “walk,” which would entail beating the whole roster of charges.

  4. Nathan Deal

    All six officers in the Atlanta and Minneapolis cases could walk, just as the six in Baltimore in 2015 (Freddie Gray) walked despite the medical evidence being far more clear-cut.

    But there have been significant changes in the histories of prosecutors securing convictions against cops who kill in the last five years to question whether Graham is still the bulletproof defense it was in the past. Chicago officer Lowell Houser’s invocation of Graham behavior on the part of his victim was turned against Houser by Cook County prosecutors, who convicted the cop of second-degree murder in December 2019 and secured a 10-year sentence in February, more than 3 years longer than the sentence they secured against Chicago officer Jason Van Dyke for second-degree murder the year prior.

    It seemed foregone that Van Dyke would walk, but both he and Amber Guyger left their respective courthouses in handcuffs. Perhaps prosecutors are learning–in Georgia both the McMichaels and Rolfe face felony murder, and the Minneapolis Four face the equivalent of felony murder charges (subsection 2 of the MN second-degree murder statute appears to encompass the felony murder rule). If these prosecutors convict these defendants for aggravated assault, is that enough to convict them all for the full gamut of the charges?

    Are prosecutions of police changing to favor the state? Will the Lowell Houser be a one-off case, or will it provide the template to circumvent Graham? These are all obviously rhetorical questions–it is difficult enough to predict the future without the ground shifting beneath one’s feet. But the dam is cracking, as what once worked for the defense in almost all police misconduct cases is more iffy than before. Time will tell.

    1. SHG Post author

      If your point, beyond this simplistic drivel, is that police officers are not being treated as deferentially of late as they had in the past, you could have said that without clogging up my comments with the rest of that worthless garbage. Each case is won or lost based on its individual facts and the applicable law, not insipid generalities.

  5. Bob

    I guess it’s a bit of a tangent, but how the hell are they charging the other cop—the one who didn’t shoot Brooks—with aggravated assault?

      1. Bob

        Somewhat better than if I’d elaborated, though I’d bet it’s not a statistically significant difference. I’m just curious what the theory is supposed to be, and the media coverage is so appallingly bad I wouldn’t know where to go to find out.

        1. SHG Post author

          The second cop, according to Howard, stood on Brooks’ shoulders after he was shot. As far as I know, that’s the basis for the assault charge. One of the two is alleged to have kicked him as well, but I’m unclear whether that was Rolfe or his partner.

  6. Jake

    As any dedicated SJ reader knows, there is little doubt Rolfe will walk. The machine is designed to protect him. The important question is, will the mob have moved on by then?

  7. Rengit

    I haven’t done a thing in criminal law since studying for the bar, and didn’t take a crim class beyond the mandatory one my 1L year. But even I remember the “felony murder rule”, that the felony must be sufficiently distinct from the homicide to qualify as “felony murder”; I assume the exact specifics vary state to state, but that there is some general conformity. Given that any intentional homicide is going to involve an assault and battery (unless you poison someone, I guess), using either of those to upgrade a homicide to “felony murder” is a paradigmatic example of why allowing any felony to qualify for an upgrade to felony murder “swallows the rule”.

    Is legal training required to be a DA in Atlanta?

    1. SHG Post author

      The merger doctrine was discussed in relation to the felony murder charge against Chauvin. The only drawback to further discussion of it here is that there’s no charges to parse for the basis for the charge. So what the felony might be is, at present, quite the mystery.

      1. Rengit

        I thought they were charging Rolfe with aggravated assault with a deadly weapon and violations of office (I assume it’s not these, hard to see how “violations of office”, even if felonies, are so inherently dangerous the way that armed robbery or burglary are that they qualify for the felony murder rule), and using that as the felony to upgrade to felony murder? There was an NPR article on June 17 where the Fulton County DA said that’s what they were charging him with. Possible NPR got it wrong.

        1. SHG Post author

          If someone has a charging doc, we could figure it out. As far as I know, nothing has been released.

          Edit: B. McLeod sent me a link to the arrest warrants, which reflect all that exists at the moment. They are uninformative.

  8. Charles

    For those outside Atlanta, Mr. Howard has been in the news a lot lately. He is facing allegations of sexual impropriety with subordinates and the GBI recently opened a criminal investigation against him for allegedly padding his salary with $195,000 of city of Atlanta money funneled through a nonprofit.

    He’s in the first seriously competitive election he’s faced in six terms as Fulton County DA. He just came in second place in last week’s primary, losing 42% to 38% to his former assistant, Fani Willis. Because Ms. Willis didn’t win at least 50% of the vote, there will be a run-off election in August.

    Here is what Ms. Willis posted on Facebook about the charging decision by Mr. Howard:

    “I share the community’s deep concern over the death of Rayshard Brooks, and the case must be handled openly and as expeditiously as possible. A traffic stop and arrest for DUI should not result in a death. Tragically, three girls are left without a father, and a lost life is something we can never restore.

    I am also deeply concerned, however, that the GBI has said that it is still investigating and was not even notified of Mr. Howard’s press conference announcing specific charges. The GBI is the agency designated by law to investigate shootings by police officers, and it is critical that the District Attorney coordinate with them. As has been extensively reported in the news media, the GBI is investigating Mr. Howard for pocketing funds provided to his office by the City of Atlanta for youth programs. If the investigation of Mr. Howard means he cannot work with the GBI in this and other cases, he should recuse himself from cases the GBI is investigating.

    Cases like this one illustrate the critical need to have a District Attorney whose credibility is not compromised by allegations of personal misconduct. When a District Attorney announces a charging decision in a case such as this, the victims and the community are ill-served if the District Attorney’s integrity and motives are subject to question due to his own misconduct and his past inaction in similar cases.

    I remind the community and the media to keep in mind the many cases involving police use of force that Mr. Howard has lacked the courage to act upon. Monteria Robinson, mother of Jamarion Robinson, was told by Mr. Howard he would act in that case years ago, and he has not. The family of Shukri Ali Said was told that the District Attorney’s office could not act because the officers involved would not cooperate. Those are only two of scores of cases Mr. Howard has lacked the courage to act upon, leaving everyone involved – the families of the dead, the community and the officers themselves in limbo, waiting for a decision that never comes.

    When I am District Attorney, every police use of force case will be handled expeditiously and openly. Reporters and citizens will not hear me making excuses about why multiple cases have languished. Charges will be brought against officers who violate the law. If I decide that an officer’s use of force was legal, I will have the courage to make that announcement openly and explain my decision to the public.

    My campaign is about restoring the integrity and credibility of the District Attorney’s office. The events of the last several weeks show how important community trust in law enforcement is. Now is the time for Fulton County voters to vote for a fresh start in our District Attorney’s office.”

      1. B. McLeod

        Or he figures having to clean up his mess will be his revenge on the candidate who puts him out.

  9. R

    What distinguishes the shooting of Rayshard Brooks from the shooting of Walter Scott? In the former, two cops are present and Brooks also fired the taser. They occurred in different states with different laws. Complex stuff.

    1. SHG Post author

      Walter Scott didn’t fight with the cop beforehand, didn’t take his Taser and didn’t have a weapon, didn’t fire a weapon at the cop. The cop planted the Taser afterward. Aside from that, they’re somewhat similar.

      1. Bob

        Scott did fight with the cop over the taser, though. As best I can recall, in the bystander video you can see the taser flying and Slager tangled up in the prongs. They also found Scott’s DNA on the taser itself. That’s not to say I think the cases are all that similar.

  10. Thomas

    If Georgia is one of those states where officers have to inform you you’re under arrest before cuffing you rather snapping them on without warning then I see where Mr. Brooks could have been within his rights to defend himself ,or escape a false arrest.

    1. SHG Post author

      We lawyers have a saying about such things. Comply now, grieve later. It keeps people alive, and makes far more sense than tempting death.

  11. Bryan Burroughs

    Overreactions like this (and the firing of the officer involved in Breonna Taylor’s death) are going to kill the current opportunity for real change. This is a good case for illustrating the need for cops to have deescalation training, so they have options other than “zero-to-deadly-force in half a second.”

    Taylor’s case is obviously an argument against no-knock warrants. Firing the officer for serving an otherwise legal warrant is absurd (much less the calls for murder charges).

    Just because someone didn’t need to die doesn’t mean they were murdered (legally speaking).

  12. JRP

    Real reform takes work not tummy rubs or gifts to the mob. Standing up for the actual law (and order) takes guts. Explaining to the mob why the law doesnt support what they want takes more. Yes, some law needs to be changed but there is a legislative process for that.

    Incidents like this will lead to a future where everything is about the what side you are on and who you are pandering to at that moment and not the process.

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