When Race Trumps Right Reason the Law Suffers

When Race Trumps Right Reason the Law Suffers

When Race Trumps Right Reason the Law Suffers

by David Bolgiano

Tragically, former Atlanta police officer – Garrett Rolfe - was charged Wednesday with felony murder, aggravated assault and other offenses in the shooting death of Rayshard Brooks, after the 27-year-old black man’s killing set off a new wave of protests against racism and alleged police brutality. Fulton County District Attorney Paul L. Howard Jr. stated that Brooks’s killing was unjustified and found that he posed no threat to Rolfe’s life. This, despite the fact that Brooks violently resisted arrest, stole the officer’s Taser and pointed it at the officer.  About 17% of the officers killed in the line-of-duty each year are killed with their own weapon after a suspect subdues the officer.  A Taser can and does quickly subdue an opponent. The Taser projectile itself can strike an eye and otherwise maim. This latter point is legally relevant because the use of deadly force can be used to prevent such serious injury as well as a deadly threat. Any competent prosecutor ought to know these things.  

In 2007, I had the honor to testify as an expert witness for the defense in the case of State v. Bunn, another Fulton County debacle fueled by race rather than right reason. And, like Officer Bunn, Rolfe was not acting in a vacuum, rather under a highly stressful battle for his life with a determined and dangerous individual. This point is not lost on the United States Supreme Court in its seminal case of Graham v. Connor:

"The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight … the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation – in circumstances that are tense, uncertain, and rapidly evolving." 

Also, politics rather than facts often are behind such charges.  In this incident, the fact that certain segments of the Atlanta community – fueled by its myopically racist world view – have taken to burning looting and pillaging ought not sway a decision whether to prosecute an officer. Prosecutors and investigators should have the moral courage to ignore or resist such political pressure because: 

"When criminal indictments and charges are instituted against a law enforcement officer for using deadly force, the impetus is predominantly political.  The shooting incident was controversial in the public eye, inflamed segments of the community, and the filing of criminal charges is a political response to allay the emotional outrage of the affected activists.  It is a politically driven act, not a public interest one – a refutation of the existence of a civil system of law designed and intended to deal with precisely such issues in which harm was done but without criminal elements."  – In Defense of Self and Others, Carolina Academic Press

Much of the confusion facing those either implementing or investigating deadly force encounters flows from their woeful ignorance of the tactical dynamics of a deadly force encounter. Politicians judge the world how they think it ought to be rather than how it truly is.  A prosecutor ought to have the fortitude and grace now to bow to such political pressure.  It is clear by any understanding of the law and facts that Paul Howard is either woefully ignorant or, more sinisterly, willfully ignorant.  

The Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm. 

"[W]e must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes “reasonable” action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure."

 - Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992)

            This standard was slightly modified by the Supreme Court in 2001 in Saucier v. Katz.  In essence, the Court set forth the standard that “no reasonable officer would have acted in a similar manner.”  Having been a police officer in a deadly force encounter and having made hundreds if not thousands of arrests and having taught the law and dynamics of deadly force encounters for over 25 years, there are plenty of police officers incldeuing myself who would have shot Rayshard Brooks.  Brooks, not Officer Rolfe, was the author of his own misfortune. And, a prosecutor ought to stand firmly behind the police, especially in times such as this.        

As so wisely observed by Sir Winston Churchill in a speech before the House of Commons in 1926, “I refuse to remain neutral between the fire and the fire brigade” and neither should our public officials when weighing the value of an officer’s life versus that of a criminal suspect. Urey Patrick and John Hall in their seminal work In Defense of Self and Others eloquently state this point of law and order:

"There are some topics about which decent folk cannot afford to be impartial. Sir Winston’s statement provides a good example.  There is an obvious parallel between the fireman and the policeman.  Just as the fireman’s helmet represents our determination as a community to protect ourselves from the dangers posed by fire, the law enforcement officer’s badge and gun represent our determination as a community to protect ourselves from the dangers posed by individuals whose actions threaten our safety.  The folly of taking a neutral stance between that which is dangerous and that which we create to protect us from that danger should be self-evident."   

There is no evidence that Officer Rolfe possessed any criminal motive in his shooting of the suspect in Atlanta. It is both shocks and saddens me that the Fulton County District Attorney has again chosen to prosecute one of the good guys solely to placate the always ungrateful rabble.