James A. Gagliano
On Friday night in Atlanta, we witnessed an all-too-familiar scene in the age of viral video. A bystander used a cellphone to capture video of two cops engaged in a violent struggle on the ground with a noncompliant suspect.
Rayshard Brooks, a 27-year old black man, apparently fell asleep at the wheel in a Wendy’s drive-thru lane. After a citizen’s complaint call, two Atlanta Police Department officers were dispatched and encountered Brooks, who was now parked in the lot. A field sobriety test raised reasonable suspicion of Brooks being under the influence of alcohol or narcotics.
The cops then performed their sworn duty to enforce the law and attempted to take Brooks into custody. A violent, sustained struggle ensues. Brooks then grabs an officer’s Taser and attempts to flee on foot. Both officers give chase. Wendy’s security camera footage released by the Georgia Bureau of Investigation picks up the pursuit and clearly shows Brooks wheel around and appears to fire the Taser at the closest officer, less than 10 feet away.
In a split second, the targeted officer appears to duck, collides with a parked vehicle, switches his own Taser to the other hand, draws his sidearm, and fires at Brooks, leaving him mortally wounded on the pavement.
Many in the media erroneously reported this as yet another “unarmed” black man killed by police. That description is wholly inaccurate and dangerous.
Protesters, already energized by the inexcusable death of George Floyd, descended upon the Wendy’s where Brooks was killed and set it ablaze. Cars were set afire. Demonstrators shut down traffic on I-75. Atlanta Police Department Chief Erika Shields submitted her resignation, which Atlanta Mayor Keisha Lance-Bottoms immediately accepted. The officer who fired the fatal shot was denied due process and immediately fired. His partner was reassigned to “administrative duty.”
The woke folks cheering the consequences of Brooks's death have little appreciation for what it is like to be in law enforcement. The job is thankless and dangerous enough without the stoked hysteria and distortions of the profession and its adherents — the visceral intolerance and bigotry. Many simply do not understand the use-of-force calculus that police officers are forced to consider in a nanosecond, with lives hanging in the balance. Their misguided imputations in the Brooks case are misguided.
Silly and unserious assertions abound. Joe Biden, pandering to an African American audience, recently suggested cops “shoot them in the leg and not the heart” when an attacker comes at police with a knife. Rep. Ted Lieu, a Democrat from California and an attorney, informed me on Twitter this morning that Brooks was “running away as fast as he could,” ergo, my justifiable use-of-force argument “doesn’t make sense.” With respect to Lieu, we can’t ignore Brooks's violent resistance to arrest, the stolen Taser, and that Brooks, while fleeing, pivoted and appeared to have discharged an incapacitating Taser at an officer in pursuit, which affords an officer the right to employ deadly force.
As a former federal prosecutor noted at RedState:
The APD manual states an officer may only use deadly force when:
“1. 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.”
Someone, please help me understand how this shooting did not meet the threshold as justifiable use-of-deadly-force by Atlanta Police Department guidelines. Don’t like the guidelines? Change them. And then, explain how best to recruit and retain officers to serve in a department that applies more restrictions and creates more danger in an already dangerous profession.
Let’s apply the two Supreme Court cases that appear to most closely apply in the Brooks shooting. Firstly, Graham v. Connor (1989), which applies objective reasonableness as the guiding imperative and standard. In my studied opinion, the Brooks shooting was objectively reasonable. This view fairly considers that incapacitation of an officer immobilized by a Taser shot leaves him vulnerable to deadly force by a perpetrator. Brooks already exhibited violent tendencies by relieving an officer of his Taser and attempting to use it against police. It can reasonably be considered that the officer faced disarming, and his own firearm used against him.
Secondly, I would refer you to Tennessee v. Garner (1985), the Supreme Court case that held that officers are allowed the use of deadly force when “officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Again, the Atlanta incident meets this threshold. “Fleeing” doesn’t necessarily equate to “less dangerous.”
And, for the uninitiated, here’s why leaving Brooks alone, to sleep in his car, was nonstarter: Once cops assess a situation and determine that someone impaired is behind the wheel in an operable motor vehicle, there is simply no ignoring them. Officers visually assessed that Brooks was under the influence. Police typically ask the subject to confirm intoxication level through a breathalyzer. In Georgia, if the test indicates a blood alcohol concentration of 0.08 or higher, you are placed under arrest. If you refuse the test, you are also placed under arrest.
There exists no safe scenario of allowing someone to “sleep it off” in their car. Intoxicated people make poor choices. If police depart, and the impaired driver then operates their motor vehicle and plows into a group of innocent people, law enforcement would be responsible for not having taken the offender into custody.
No one except Rayshard Brooks is guilty of setting in motion the fatal encounter.
My dear friend and fellow CNN law enforcement analyst, Cedric Alexander, put it best on Saturday. Alexander is a mental health practitioner and served as public safety director for DeKalb County, Georgia (my hometown), and is a past president of the National Organization of Black Law Enforcement Executives. During the unrest, Alexander expertly posited that the shooting very well appeared “lawful, but awful.” And that assessment may very well describe a place for discussion on police training, reforms, and appropriate use-of-force guidelines.
But violent riots are metastasizing and proliferating over a false narrative and promoted trope. Feelings and emotions care little for facts. We, as a nation, are at a tipping point.
In my opinion, the fatal police shooting of Brooks, though tragic, was justified.
James A. Gagliano (@JamesAGagliano) worked in the FBI for 25 years. He is a law enforcement analyst for CNN and an adjunct assistant professor in homeland security and criminal justice at St. John's University. Gagliano is a member of the board of directors of the Law Enforcement Legal Defense Fund.