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“As many of you know… a Taser is considered as a deadly weapon under Georgia law.”

Those are the words of Fulton County District Attorney Paul Howard two weeks ago – before he announced murder charges Wednesday against the fired Atlanta police officer who shot and killed Rayshard Brooks on Friday during a confrontation outside a Wendy’s restaurant.

Howard’s adamant pronouncement that a Taser is a deadly weapon came in an unrelated criminal case and was made in front of television cameras and microphones. His words will surely come back to haunt him as he attempts to prosecute former Officer Garrett Rolfe on 11 criminal charges including felony murder, which carries the death penalty.

The law of self-defense in Georgia is clear: deadly force may be met with deadly force. In fact, deadly force can be used to defend against force that is likely to cause serious bodily injury.

Here is the standard instruction (GA SPJI 3.10.10) read by judges to Georgia juries:

“A person is justified in using force that is intended or likely to cause death or great bodily harm only if that person reasonably believes that such force is necessary to prevent death or great bodily injury to himself/herself or a third person or to prevent the commission of a forcible felony.”

The question for a jury then becomes two-fold: First, did the brandishing of a stolen Taser by Brooks constitute a credible threat of death or great bodily injury? Second, did Officer Rolfe have a reasonable belief that deadly force was necessary when he drew and fired his weapon?

District Attorney Howard unwittingly answered the first question. In so doing, he seriously undermined his own case against Rolfe. It is impossible for a prosecutor to argue that a Taser is a deadly weapon in one case, but not a deadly weapon in another.

The answer to the second question will turn on the testimony of police officers and other eyewitnesses, and the video footage from several cameras showing the altercation in the seconds leading up to the fatal shots.

So far, the evidence indicates that Brooks resisted arrest and scuffled with both Rolfe and his partner, Officer Devin Brosnan. Brooks then allegedly stole a Taser from Brosnan, who was knocked to the ground, suffering what was described by his attorney as a concussion and other injuries.

In a video released by the Georgia Bureau of Investigation, Brooks was seen running across the parking lot with what appears to be the Taser, turning back and pointing the object. Rolfe then opened fired with his handgun.

It is unclear whether Brooks actually fired the Taser or how many times, although a person does not have to wait to be fired upon or shot before acting in self-defense.

Under Georgia law, “To justify a homicide, it is not essential that there be an actual assault made upon the defendant.” The threat of imminent danger is sufficient.

In a videotaped statement immediately after the shooting, Rolfe told his supervisor: “As I pursued him, he turned and started firing the Taser at me.” Rolfe added: “He definitely did shoot it at me at least once.”

Accepting that Rolfe’s statements are self-serving, did he act reasonably under the circumstances? This is the pivotal question of fact that only a jury can resolve.

Rolfe’s attorney offered this account: “Officer Rolfe heard a sound like a gunshot and saw a flash in front of him. Fearing for his safety, and the safety of the civilians around him, Officer Rolfe dropped his Taser and fired his service weapon.”

Accepting that Rolfe’s statements are self-serving, did he act reasonably under the circumstances? This is the pivotal question of fact that only a jury can resolve.

However, the jury will be guided by another instruction (GA SPJI 3.10.12) derived from Georgia law: “The standard is whether the circumstances were such that they would excite not merely the fears of the defendant, but the fears of a reasonable person.”

What if the jury concludes that Officer Rolfe misinterpreted the circumstances or the nature of what Brooks was holding in his hand? Under the law, an honest but mistaken belief is sufficient to meet the standard of justifiable self-defense.

Some have suggested that Rolfe should have utilized an alternative level of force less than lethal force. This has been consistently rejected by higher courts as impracticable and counterproductive to effective policing (Scott v. Henrich, 39 F. 3d 912, 9th Circ.,1994).

The underlying problem for the defense is that, according to the medical examiner, Brooks suffered two gunshot wounds to the back. Critics of Rolfe have seized upon this as evidence that Brooks was fleeing. This may be true, but not necessarily.

It is possible that Brooks turned his back in a defensive posture the moment he saw Rolfe pull his gun. But even flight is not dispositive of the case under the law. The threat of a deadly weapon can still exist in the hands of a fleeing suspect.

District Attorney Howard appears to have overcharged his case and made representations that are untrue. At his news conference, he claimed that Brosnan has agreed to testify against his partner. This was vigorously denied by Brosnan’s attorney.

Indeed, Brosnan’s attorney blasted Howard for what he called a “rush to misjudgment,” adding, “Shame on the district attorney for this abuse of his charging power.”

Whether Howard abused his authority by filing excessive charges may soon be tested by the Georgia Bureau of Investigation. The GBI was asked by the Atlanta Police Department to investigate the Brooks shooting and has yet to complete its probe.

The GBI seemed stunned by the district attorney’s announcement on Wednesday. “We were not consulted on the charges,” it said in a public statement.

Rep. Doug Collins, R-Ga., accused Howard of pandering to the mob.

“Charging an Atlanta police officer with felony murder before the completion of the GBI’s investigation was a political decision, not a legal one,” Collins said. Collins is asking the Georgia attorney general to intervene in the case by appointing an independent prosecutor.

It is legitimate to ask whether the district attorney was motivated by personal and political considerations. He is under criminal investigation by the GBI for allegedly pocketing $140,000 in taxpayer funds funneled through a nonprofit organization. He is also in a tough fight for reelection against an opponent who has accused Howard of corruption.

If the district attorney survives the election, he may not survive the legal quagmire he created with his own words. He declared that a Taser is a deadly weapon under Georgia law.

At least he was right about that.

8 Comments

  1. It’s obvious they wanted to violate his due process rights so that the case would be tossed and more riots would result. The whole thing has been orchestrated from the start. The constitution is taking the summer off for these people. Winning the election is more important that anything in the Bill of Rights.

  2. Please tell me what purpose BURNING & DESTROYING Wendy’s in Atlanta, where policeman shot & killed Mr. Brooks? Owner of this restaurant, just like all the other businesses in cities all over America, are innocent citizens, their businesses burned and or destroyed via the protesters turned rioters, turned looters, and most disturbing, some became killers- the very tragic police actions of a few officers did not in any way, shape or form give anyone the right to cause billions of dollars of property damage, taking away the livelihood of so many innocent business owners, who in some cases used their entire life savings to open their business, and the resulting loss of thousands of jobs due to this destruction. The most horrific injustice is the taking of the lives of many of these innocent citizens, who fell victim to angry mobs that were suppose to be PEACEFULLY PROTESTING the wrongful death of Mr. Floyd, while in Police custody and most recently the police shooting of Mr. Brooks, in Atlanta in a Wendy’s parking lot. Each TRAGIC in the loss of a life, that should NOT have ever happened. Sadly, what took place across America most recently in Atlanta, should never have happened. DESTROYING property of innocent people won’t bring Mr. Floyd or Mr. Brooks back. The KILLING of innocent people won’t bring Mr. Floyd or Mr. Brooks back. As hard and insurmountable a task it may be, we MUST come together, United in our goals, United in our resolve, VOID of politics, VOID of selfishness, VOID of individual prejudices, VOID of stereotypes, WITH honesty, integrity, mutual respect, genuine care, compassion and concern for what is RIGHT, what is JUST, work day after day, week after week, month after month, year after year, together, towards helping to shape our great nation, until we reach the point when “EVERY PERSON IS JUDGED, NOT BY THE COLOR OF THEIR SKIN, BUT BY THE CONTENT OF THEIR CHARACTER.”
    – Dr. Martin Luther King Jr.

    Then we must never forget where we were, not erasing our own history because of political motivation, but making sure we learn from it as to NEVER REPEAT the mistakes we made, then, never letting the generations that follow go unaware, uneducated about the country we once were, and why so many Americans from every corner of our country, every shade of skin color, every religion, all UNITED. ❤️🇺🇸🙏

  3. Change of venue. NOT GUILTY.

  4. Hopefully the charges won’t make it past the GBI. Either way, expect more riots when he’s exonerated.
    FYI too, the officer’s step mother has been fired from her financial institution job.

  5. It certainly does appear to a case of political expediency in the rush to charge Rolfe with murder. Political desperation appears to be the motivation rather than honestly allowing the investigation to be completed. This should go against him in his re-election bid.

    Also, how much did racial bias influence the rush to charge Rolfe? Was there any racial motivation involved? It didn’t reduce the rioting any.

  6. Just another of thousands of affirmative action pimples on America’s backside.

  7. A Black DA prosecuting a white cop? Isn’t this just prime, and what the hell do you people out there in La La land expect. This one though I believe is legitimate because the cop shot the black man in the back as he was running away. That taser I believe is a one shot deal with cartridges needed to be put in so you can fire another shot. I also believe his taser was one of those instead of the newer ones when can fire twice. In other words the cop was no longer in any danger when he shot the guy fleeing in the back twice. That unrestrained egotistical attitude we do not need in our LEOs.
    That prosecutor will try and make an example of the cop by prosecuting him for murder. When cops make themselves the enemy, we are reminded that we have a right to defend ourselves against enemies both foreign and domestic.
    When governments put men with guns in charge of other men who are not so well equipped, you are asking humanity to trust the nature of another capricious human. Very few men or women are so well equipped emotionally to fulfill the positions we hire them for when they must deal with the worst of humanity.
    What no one is covering in these last few weeks is the real reason that Black Lives Matter is now revolting. Law Enforcement has essentially brought this down upon their own heads. Humans will take being corralled for so long before they explode into ANARCHY. What the heck did those mayors and governors think would happen if the closed down our society. THAT WE WOULD PARTY ON ???>???? DUMMKOPFS ALL

  8. Time to let the laws we have written and due process to run it’s course in this case. By the DA’S own statement in a prior case just a few weeks ago, a TASER IS A LETHAL WEAPON. Wish we could go back and Mr. Brooks not fought with police and fired the taser while running away… Wish that the officers involved would have just chased Mr. Brooks down and handcuffed him and not fired a single shot. I’m sure Mr. Brooks would have tired well before the officers. This could have been avoided… but we weren’t there… so let’s all not rush to judgement like this DA, and let our justice system do it’s job. Please, let’s all be patient and regardless of what side if this your on, we should all want proper due process and whatever the charges end up to be, a fair and impartial trial. No matter what, no rioting, no destruction of property and no harm to any innocent human being. Thank you. ❤️🇺🇸🙏

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