When is a police shooting a crime? When is a police shooting justified?
And when is a police shooting neither?
Those are the questions prosecutors will address this week after an Atlanta Police officer shot and killed Rayshard Brooks at a Wendy’s drive-through on Friday night.
Brooks, 27, was being investigated for suspected drunk driving. He was found asleep in his car and failed a breathalyzer test, according to police report and videos from the scene. When two officers moved to handcuff him, he fought them off, took an officer’s Taser, and began to flee.
While running away, Brooks turned back and aimed the Taser at officer Garrett Rolfe, who then shot Brooks twice in the back, killing him, surveillance video shows.
The shooting, amid nationwide protests calling for an end to police violence against black people, has already led to Rolfe’s firing and the resignation of the police chief.
Fulton County District Attorney Paul Howard said he will announce whether his office will bring charges against the officers – including potentially murder, felony murder or involuntary manslaughter – this week.
Speaking to CNN on Sunday, Howard did not say what he would decide but did present the key question that his office must answer.
“Specifically, (the question is if) Officer Rolfe, whether or not he felt that Mr. Brooks, at the time, presented imminent harm of death or some serious physical injury,” he said. “Or the alternative is whether or not he fired the shot simply to capture him or some other reason.”
“If that shot was fired for some reason other than to save that officer’s life or to prevent injury to him or others, then that shooting is not justified under the law.”
What Georgia law says
Georgia law allows a person to use deadly force “only 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.”
In addition, the Atlanta Police policy manual, which was most recently updated last week, says that an officer can use deadly force when “He or she reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury and when he or she reasonably believes that the suspect poses an immediate threat of serious bodily injury to the officer or others.”
CNN legal analyst Joey Jackson said prosecutors will examine three separate issues: (1) Whether the officer was in immediate fear of death or serious injury, (2) whether his use of force was proportionate to the threat, and (3) whether the officer acted reasonably under those circumstances.
Prosecutors and juries have long given police the benefit of the doubt in these types of shooting cases.
From 2015 to 2020, police in Georgia have shot and killed 182 people, according to The Washington Post’s Fatal Force tracker.
In that time, only one Georgia officer has been charged with murder. In 2016, a grand jury indicted DeKalb County police officer Robert Olsen for fatally shooting a naked and unarmed US Air Force veteran the year prior.
Olsen was acquitted of murder at his 2019 trial but convicted of aggravated assault, making a false statement and two counts of violation of oath. He was sentenced to 12 years in prison.
On Monday, Howard said that he was aware of criticisms that there is one justice system for police and one justice system for everybody else.
“We hear you, we are listening. We believe that the justice system ought to have one standard and not two,” he said.
Part of the legal decision is based on the nature of the weapon.
The Taser is designed to be less lethal than a firearm, but it can be fatal in some circumstances. Amnesty International said that more than 500 people have died in the US “after being shocked with a Taser either during their arrest or while in jail,” according to a CNN story in 2015. Although Taser, the company, said the tally of deaths directly attributed to Taser is more like 60.
L. Chris Stewart, attorney for Brooks’ family, said the video shows that the officer’s life was not in immediate danger and compared the Taser to other less lethal options.
“It was a Taser, which falls under the exact category of pepper spray and a baton. If he had pepper spray, should he have been shot then?” he said.
It is not a hypothetical question. In 2016, a Bibb County sheriff’s deputy in Georgia shot and killed a 57-year-old man suspected of shoplifting who pepper-sprayed the officer during a confrontation. Investigators ruled that the shooting was justified, according to The Macon Telegraph.
Another attorney for Brooks’ family, Justin Miller, said he did not believe the shooting was justified, and he noted that the surveillance video shows officer Rolfe reach for his gun before Brooks turns around with the Taser.
“So he was already going in that direction, going to the lethal force direction before that Taser was pointed in his direction,” Miller told CNN on Monday. “The Taser didn’t hit him. The Taser goes off. He still decides to shoot him in the back while he’s running away when there are, again, multiple options that he could have chosen that would not have resulted in death.
“We just don’t think it was right and we don’t think it was reasonable.”
Appropriate v. legal
Still, officials and legal experts have emphasized the difference between what is technically legal and what is appropriate in modern-day policing.
“There is a clear distinction between what you can do and what you should do,” Mayor Keisha Lance Bottoms said Saturday. “I do not believe this was a justified use of deadly force.”
Cheryl Dorsey, a retired Los Angeles Police sergeant, said that deadly force is a last resort. The officers at the Wendy’s should have set up a perimeter, requested backup and tried to contain his escape rather than shoot him.
“Should he slip the perimeter, you already know who he is. You have his driver’s license and vehicle,” she said. “There are so many other things that the officers could have done, but poor tactics always, always lead to a poor shooting.”
She said the shooting was more due to an intent to punish rather than out of fear.
“The officer was mad because he took his Taser,” she said.
Jackson said that the protesters had made their issue with policing clear.
“There’s a feeling that force and lethal force should be a last alternative. It shouldn’t rise and fall on charges. It should rise and fall on whether or not something else could have been done,” he said.
“The issue they’re marching for is: Why do you have to shoot first and ask questions later?”