Monday, June 15, 2020

Was the Shooting of Rayshard Brooks 'Lawful but Awful'?

By Jacob Sullum - June 15, 2020 at 03:30PM

The killing of Rayshard Brooks during a Friday night arrest for driving under the influence provoked protests in Atlanta, prompted the immediate dismissal of the officer who shot him, and led to the police chief's resignation. Kalfani N. Turè, an assistant professor of criminal justice at Quinnipiac University, describes Officer Garrett Rolfe's use of deadly force against Brooks as "lawful but awful." That characterization is worth unpacking.

Brooks had fallen asleep in his car at a Wendy's drive-through, which is what prompted the police call. The encounter between Brooks and the police, which The New York Times reconstructed based on body camera, bystander, and security camera footage, was initially polite, even amicable, until it suddenly escalated into a deadly confrontation.

"All right, you good?" Officer Devin Brosnan inquires after waking Brooks up at 10:42 p.m. He asks Brooks to move his car to a nearby parking space, initially suggesting that he take a nap there. Seven minutes after arriving, Brosnan calls for another officer.

After Rolfe arrives at 10:56 p.m., he consults with Brosnan. Rolfe asks Brooks to get out of the car and asks if he has any weapons. Brooks says he does not and consents to a pat-down. Rolfe performs a seven-minute field sobriety test.

Brooks is "compliant and friendly with the officers throughout this time," the Times notes. He admits that he has been drinking but says he is not too intoxicated to drive. Brooks suggests that the officers allow him to lock up his car and walk to his sister's house, which is nearby. "I can just go home," he says.

Rolfe is not keen on that idea. "Why would you walk home?" he asks. "I just don't want to be in violation of anybody," Brooks replies. "Do you think that you would be in violation of something if you were to drive your vehicle?" Rolfe wonders.

Rolfe asks Brooks to blow into a breathalyzer, and Brooks agrees. After completing the breath test, Rolfe says Brooks has "had too much drink to be driving" and begins to handcuff him. Brooks pulls away and ends up tussling with both officers on the pavement of the parking lot.

"Stop fighting," Rolfe says. "You're going to get tased," warns Brosnan, who draws his stun gun. Brooks grabs Brosnan's Taser and continues wrestling with the officers. Then he stands up and punches Rolfe, who fires his Taser at Brooks. Brooks runs away, still holding Brosnan's Taser. Rolfe tries to tase Brooks again, then reaches for his handgun. Brooks fires Brosnan's taser toward Rolfe, although his aim is high. Rolfe drops his Taser and fires three shots at Brooks, hitting him in the back.

Rolfe calls for an ambulance at 11:24 p.m., about a minute after the shooting. The officers "begin to provide medical assistance," bandaging Brooks' torso. An ambulance arrives at 11:30 p.m. and takes Brooks to a hospital, where he dies after surgery.

Why does Turè suggest the shooting was "lawful"? Because "officers are trained that they have the right to escalate their use of force if they believe someone is threatening to incapacitate them," the Times explains. Brooks had already taken Brosnan's Taser. If he had managed to use it effectively against Rolfe, the officer might have been thinking, Brooks also could have grabbed Rolfe's gun.

It is worth noting that Tasers, although marketed as "less than lethal," can kill people. A 2012 study by Amnesty International documented 500 cases since 2001 in which arrestees died after they were tased. The criminal charges against six Atlanta officers accused of assaulting two protesters on May 30 describe the Taser as "a deadly weapon." If Fulton County District Attorney Paul Howard applies that classification consistently, it follows that Rolfe used deadly force in response to deadly force.

Why is the shooting nevertheless "awful"? To start with, it would not have happened if the cops had let Brooks walk home. Although it may be too much to expect such lenience from officers in the face of a probable DUI, that sort of thing has been known to happen when the suspect happens to be a cop.

It also seems likely that Brooks would still be alive if he had not resisted his DUI arrest. Unlike George Floyd, who was killed by a gratuitously prolonged neck restraint when he posed no threat to the officers who were arresting him, Brooks fought Rolfe and Brosnan once it became clear that he was going to jail.

A third opportunity for de-escalation came when Brooks ran away from the cops. Instead of giving chase, Turè suggests, Rolfe and Brosnan could have tracked him down later based on his car registration, or they could have called for more officers to help subdue him without using deadly force.

The second option might not have worked out very well for Brooks either. But the first option, although hard to imagine once Brooks had assaulted the two officers, surely would have been preferable given the risks and benefits involved in this particular arrest. Brooks was on foot, posing no threat to the general public, and running away, posing no threat to the officers as long as they let him do so.

An ordinary citizen who used deadly force in a situation like this would have a hard time defending his actions. But police officers are allowed to use force when they have probable cause to arrest someone, and they have no obligation to let him get away when he resists, even when the stakes are small. At the same time, the Supreme Court has said police may not use deadly force against a fleeing suspect unless it is "necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."

The legal question in this case is whether Brooks' possession of a Taser and his attempt to use it against Rolfe constituted such a threat. Did Rolfe act based on a reasonable fear of "death or serious physical injury," or did he needlessly shoot someone who was merely trying to escape? If Rolfe faces criminal charges as a result of the shooting and the case goes to trial, it is not hard to predict which interpretation jurors will be inclined to favor, especially given their general reluctance to second-guess such decisions by police officers.

The facts of this case distinguish it from such obvious travesties as Floyd's death or the 2015 shooting of Walter Scott, an unarmed man who was shot in the back as he ran from police after a traffic stop for a broken tail light in North Charleston, South Carolina. Even in the latter case, a state jury deadlocked on the question of whether Officer Michael Slager's use of deadly force was justified, although he subsequently pleaded guilty to a federal civil rights charge and received a 20-year prison sentence.

Criminal charges aside, it seems clear that something went horribly wrong the night that Rayshard Brooks fell asleep in his car outside a fast-food restaurant. The incident highlights that fact that every encounter with armed agents of the state has the potential to end tragically, which is a good reason to minimize such encounters, to weigh their risks against their benefits, and to avoid escalation whenever possible.

In this case, the tenor of Brooks' interaction with the officers changed dramatically when the handcuffs came out. Yet his alleged offense is a misdemeanor that is typically handled with sanctions such as fines, probation, community service, and license suspension (although it theoretically can be punished by up to 10 days in jail). It seems like the sort of offense that could be handled by a citation, along with precautions aimed at ensuring that an intoxicated driver does not get back behind the wheel.

Under Georgia law, however, arrests are authorized for most moving violations—not just driving under the influence, but routine offenses like speeding. Such overcriminalization is a standing invitation to hostile encounters that may lead to violence, as happened in this case. The value of enforcing the DUI law, and especially the added value of routinely enforcing it with custodial arrests, cannot possibly justify the loss of a man's life. And while that outcome is far from typical, it is the sort of danger that legislators should consider whenever they authorize police officers to use force.


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