Opinion

The Atlanta Wendy's Officer Shooting: Justified Use of Force

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Posted: Jun 15, 2020 12:54 PM
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The Atlanta Wendy's Officer Shooting: Justified Use of Force

Source: Atlanta Police Department via AP

How It Actually Happened

Atlanta police arrived at Wendy's in response to a 911 call about a man passed out in a drive-through lane. When the first officer arrived on scene, Officer Brosnan, he observed that the vehicle in question had the motor running and that the driver was indeed passed out or sleeping. It took the officer multiple attempts to wake the driver. Ofc. Brosnan then asked the driver to move his car out of the drive-through lane and to park it in a parking spot.

As the driver was attempting to park, he drove over the curb in front of the parking spot and had to back up to move off. The officer also observed the driver as groggy, heard a slurred speech, smelled an odor of alcohol coming from the vehicle, observed watery eyes, and noted the driver's confusion. These are all evidentiary indicators of intoxication. 

Ofc. Brosnan asked the driver for his driver's license and detained him for a DUI investigation. 

Then, the second officer arrived on scene, Officer Garrett Rolfe. Ofc. Rolfe first obtained a full debrief from the first officer on the scene. He then proceeded to ask the driver, Rayshard Brooks, what happened. In his interaction with Mr. Brooks, it is clear that Ofc. Rolfe is interacting with an intoxicated individual. Mr. Brooks cannot keep a straight story, doesn't know which city he is in, is slurring his words, and appears very confused, he intermittently doesn't recall interacting with Officer Brosnan; Mr. Brooks even tells the officers that he pulled over Officer Brosnan. 

Ofc. Rolfe asks to pat down Mr. Brooks for weapons and then institutes standardized field sobriety tests. Mr. Brooks shows signs of intoxication on those tests. Mr. Brooks then provides a breath sample showing that he is above the legal limit, though only by a bit. Mr. Brooks exhibits much stronger signs of intoxication than we would expect from the .10 BAC level that appeared on the portable breath test; there is a good chance that there were intoxicants other than alcohol in his system. 

Georgia law permits DUI enforcement on private property like a Wendy's parking lot. And, mere control of a vehicle while intoxicated is sufficient for DUI arrest (which means evidence of driving behavior is not necessary for an arrest). Thus, Ofc. Rolfe had both the authority and the required probable cause to arrest Mr. Brooks for DUI. 

The arrest is the moment in which Mr. Brooks makes a series of terrible decisions that lead to him being shot just moments later.

Mr. Brooks begins struggling and pulling away forcefully as the two officers attempt to handcuff him. The struggle thrashes all three men onto the pavement. The officers are continuously giving Mr. Brooks commands to stop and warn him that they will have to tase him if he doesn't stop resisting and fighting them. Ofc. Brosnan takes out his taser and points it at Mr. Brooks, who manages to get it out of the officer's hands. The officers can be heard on the bodycam footage telling Mr. Brooks not to touch the taser. Mr. Brooks succeeds in stealing the taser away from Ofc. Brosnan and throws the two officers off of him. He punches Ofc. Rolfe and breaks free, running back from the officers on the ground, stolen taser in hand. 

Mr. Brooks has now committed a felony obstruction by fighting the officers, a felony assault by striking the officers to rob them of the taser, and a felony robbery by stealing the taser while using force. 

Ofc. Rolfe now discharges his taser at Mr. Brooks, though unsuccessfully. Mr. Brooks changes directions and runs. Mr. Brooks has turned himself into a dangerous, fleeing felon. Ofc. Rolfe pursues him with the taser in hand.

Mr. Brooks, while running forwards, then turns his hand bearing the taser back at Ofc. Rolfe. Mr. Brooks also turns his head back and looks behind him (while continuing to run forwards). Mr. Brooks then discharges the taser at the officer running behind him. Mr. Brooks has just committed another felony act of aggravated assault on an officer. Ofc. Rolfe ducks and moves out of the way to avoid being shot with the taser, while simultaneously switching from holding his taser to his firearm. This all happens in the course of one second. 

In the next second, Mr. Brooks continues running forwards, and again turns his hand bearing the taser back at Ofc. Rolfe and looks back at him. The two men appear in a duel position, their arms, weapons in hand, pointed at one another. Mr. Brooks is in the commission of another felony assault. Ofc. Rolfe then shoots his firearm three times, with two of the bullets striking Mr. Brooks and taking him down. As soon as Mr. Brooks is down, Ofc. Rolfe holsters his weapon and screams, "put your hands behind your back!"

To reiterate: within a two-second time period, Mr. Brooks transformed his destiny. Mr. Brooks decided to shoot a taser at Ofc. Rolfe, who was chasing him while also holding out a taser pointed at Mr. Brooks. Only after Mr. Brooks points and shoots the taser at the officer is when the officer shifts from holding a taser to taking out his firearm. Mr. Brooks continues to hold out his arm and to point it at the officer, looking back at him, trying to aim his taser. At this point, the men are pointing arms at each other. Ofc. Rolfe then shoots, causing Mr. Brooks to drop his arm down. The second and third shots bring Mr. Brooks to the ground. 

Yes, the bullets entered Mr. Brooks' back. That is how he was positioned while threatening the officer. But no, the back entry point of the bullets does not in itself transform the incident into a murder. 

The Law

Ofc. Rolfe acted in self-defense. Georgia law does not impose on him a duty to retreat. Instead, it authorizes a person to use deadly force "if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony." (Georgia law defines "forcible felony" as any felony which involves the use or threat of physical force or violence against any person.) Ofc. Rolfe acted lawfully in utilizing the deadly force of his firearm to protect himself against Mr. Brooks' immediate threat and to prevent Mr. Brooks from completing yet another forcible felony.

Moreover, police have the right to use deadly force to apprehend a fleeing felon "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm," according to the Supreme Court. Under these circumstances, "deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." 

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Criminal Prosecution of Officer Rolfe?

In direct contradiction to the evidence and the law, the prosecutor, Paul Howard, told CNN on Sunday that Mr. Brooks "did not seem to present any kind of threat to anyone, and so the fact that it would escalate to his death just seems unreasonable." This sham prosecutor then went on to threaten the good guy in this story, Ofc. Rolfe, with criminal charges of murder or felony murder. 

According to Townhall, this prosecutor is under investigation following local reporters' discovery that about $200,000.00 of funds sent to his office for crime prevention programs ended up in his pocket. Embezzlement, anyone? 

It's certainly plausible that this prosecutor is utilizing the mass media hysteria surrounding Mr. Brooks' shooting to deflect attention from his own criminal wrongdoing. That would explain why he had the audacity to get on CNN and falsely claim that fleeing felon Mr. Brooks "did not seem to present any kind of threat to anyone."  

Malicious prosecution, which means bringing frivolous, vindictive, or otherwise improper criminal charges, is a cause of action in Georgia. This prosecutor might find himself in hot water if he proceeds.  

Conclusion

Ofc. Rolfe was 100 percent justified in his use of force. He acted professionally and appropriately throughout his interaction with Mr. Brooks. Ofc. Rolfe adjusted the proportionality of his force to respond to the growing threats from Mr. Brooks, who has only himself to blame for what happened. Mr. Brooks was not entitled to commit whatever felonies of his choosing, to feloniously assault police officers, to attempt to tase a police officer, and to get away with it.

For those not in law enforcement or in the field of criminal law, witnessing a police officer in the process of criminal apprehension or arrest tends to appear overly aggressive. Understand - the job of law enforcement isn't to hand out participation stickers for felonies. It is to apprehend dangerous people physically and to bring them to a jail cell. Criminals don't immediately walk themselves into jail cells with a ballon escort and words of positive encouragement; that's just not how the world works. Please understand that your cushy office job and your ability to play Monday morning quarterback isn't commensurate with what law enforcement officers deal with on the street. Remember, this officer shifted levels of force and defended himself against the threat by the fleeing felon within a two-second time period

Disclaimer: This opinion column is for entertainment purposes only, and should not be construed as legal advice.