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.