The Cops Who Killed Rayshard Brooks Aren’t Guilty of Murder; The Prosecutor Is Guilty of Malpractice
This op-ed also appears in the New York Daily News
In the wake of George Floyd’s death and protests, there was another cop-involved killing — this time in Atlanta. Just over a week ago, Officers Garrett Rolfe and Devin Brosnan attempted to arrest Rayshard Brooks for DWI. Brooks had been sleeping drunk behind the wheel of his car in a Wendy’s drive-through. Then, after failing a sobriety test, he fought with the cops, grabbed Brosnan’s taser, ran, then fired the taser at Rolfe, before Rolfe shot and killed him.
Fortunately for Rolfe and Brosnan, multiple videos captured the 40 minutes of interaction between them and Brooks. The cops were making a lawful arrest for DUI and the videos show their valid response to the deadly situation created by Brooks. Yet Atlanta District Attorney Paul Howard ordered both cops arrested and announced 11 charges against Rolfe, including felony murder. Howard filed these charges at a time when he is in danger of losing his reelection bid, and under criminal investigation himself for allegedly using a nonprofit to funnel $140,000 of Atlanta funds to supplement his salary.
Howard should face serious repercussions for irresponsibly bringing these charges.
The charges against Rolfe boil down to whether under Georgia law, the taser is a “deadly weapon.” The answer lies with Howard. Just 10 days before Rolfe’s arrest, Howard announced that he had charged several Atlanta cops with excessive force involving a taser. CNN reported that the taser is referred to as a “deadly weapon” in those arrest reports. At that press conference, Howard stated unequivocally that “under Georgia law, a taser is considered as a deadly weapon.” Apparently, for Howard, it’s not a deadly weapon if it’s used against a cop.
In attempting to justify Rolfe and Brosnan’s arrests, Howard claimed that “Mr. Brooks never displayed any aggressive behavior.” Was that before or after Brooks fought the two officers, grabbed one of their tasers, and then fired it at the other? Howard then claimed that the cops didn’t follow procedure in informing Brooks of the reason for his arrest.
In the video, Brooks repeatedly admitted drinking that night, was found sleeping in a drive-through and failed the sobriety test. Rolfe, before attempting to handcuff Brooks, explicitly told him that he was arresting him for DUI. Implicitly, Howard is saying he would have preferred the cops to let a drunk driver go, thereby endangering many more lives. Howard has some support here — a group of law professors interviewed by USA Today believed that the cops should have let Brooks, a drunk driver, go free. I am sure everyone involved in law enforcement, MADD, SADD and any person whose life has been upended by a DUI would view the situation differently than these academics.
Next, Howard claimed that the officers didn’t provide immediate medical attention to Brooks and cited a two-minute gap before they called for backup. Howard wants the public to believe that two minutes was an unreasonable amount of time when the officers had just been attacked and potentially killed themselves by a taser — a deadly weapon by Howard’s own admission, and also according to The New York Times.
Regarding Brooks, it’s unclear whether the officers knew that he had a violent criminal history. At the time, Brooks was on probation for multiple felony convictions, including false imprisonment and cruelty to children charges. If they did know, they didn’t treat him like a perp, as they were respectful to him up to the moment he started fighting with them.
Notably, Howard charged Rolfe and Brosnan without notifying the Georgia Bureau of Investigation. GBI was in the process of investigating the encounter and it only makes sense for Howard not to wait for a completed investigation to bolster his weak reelection chances and divert attention from his own criminal investigation.
Furthermore, by charging them, Howard ignored Georgia’s Justification statute. Rolfe’s actions were justified if he used “force which is intended or likely to cause death or great bodily harm…if he…reasonably believe[d] that such force is necessary to prevent death or great bodily injury to himself….” Again, per Howard, a taser is a deadly weapon, and Brooks fired it at Rolfe, thus, there was no basis to terminate Rolfe, much less charge him.
Georgia’s attorney ethics rules require that a prosecutor in a criminal case refrain from prosecuting a charge he knows is not supported by probable cause. As both officers’ actions were in direct response to Brooks’ aggression, there was no probable cause to arrest Rolfe for murder. And there was no probable cause to charge Brosnan for aggravated assault for “put[ing] his foot on [Brooks’] arm to make sure he didn’t have access to a weapon” after Brooks had punched Brosnan, stole his taser, and then pointed and fired that taser at Rolfe.
Unlike Derek Chauvin, who I wrote faces a viable manslaughter charge, Rolfe shouldn’t have been fired. He shouldn’t face any criminal consequences. But Howard should pay a price for abusing the legal system.
