USA TODAY International Edition
‘ Lawful but awful’
After another police killing raises national outcry, what’s ‘ technically’ legal comes under new scrutiny
As the already fiery debate about law enforcement in the U. S. is further fueled by the killing of a Black man fleeing from two white officers in Atlanta on Friday night, a term commonly known in police circles is likely to enter the mainstream: “lawful but awful.” That’s the phrase police apply to killings that may be technically legal but could have been avoided. Surveillance video shows 27- year- old Rayshard Brooks was running away after resisting arrest in the parking lot of a Wendy’s restaurant when he was shot by officer Garrett Rolfe, who was fired Sunday. The Fulton County Medical Examiner’s Office said Sunday that Brooks died of two gunshot wounds to his back and ruled the death a homicide. After being questioned for falling asleep in his car in the restaurant’s drive- thru line, Brooks had wrestled with the police when they tried to handcuff him and took officer Devin Brosnan’s Taser, firing it once at Rolfe as he pursued with his own Taser in hand. Was shooting Brooks the best practice in that confrontation? Three experts consulted by USA TODAY said there were better options. Kalfani Ture, an assistant professor of criminal justice at Quinnipiac University in Connecticut, served as a police officer in the Atlanta metropolitan area for five years. Ture said the Atlanta Police Department is highly regarded for its training, and the Atlanta Journal Constitution reported Sunday that Rolfe had taken a nine- hour course on deescalation alternatives in late April. And yet, he decided to shoot. “Would I have shot Rayshard Brooks? My answer is no,” Ture said. “It’s a questionable use of force, but there are many officers who may find this a lawful use of force. So, it’s one of those things we call in law enforcement ‘ lawful but awful,’ meaning that the officer
could have taken alternative action that did not result in the civilian’s death.” One might have been to pursue Brooks from a distance and call for backup. Steve Ward, a retired California police chief, said he would run after suspects for long stretches knowing help was coming. “My fellow officers were always there for me, and yet there were a few times that the violator got away,” Ward said. “As a chief, I told this story and the new officers were astounded that I didn’t use all my less lethal tools that were provided. I told them I did: It’s called a radio and time.” But, he said, “I was not running after someone that had a police weapon in a parking lot of patrons.” While Ward said he was never in a situation in which “a subject overpowered two officers and took their weapon” during his nearly 30- year career, he still believed Rolfe reacted too quickly with force. Asked if the Atlanta officer had better options, he said, “For me, yes.”
Deep distrust of police
The shooting of Brooks is not nearly as cut- and- dried an excessive use of force as the case of George Floyd, the Black man who died May 25 when a Minneapolis police officer knelt on his neck for nearly nine minutes, Ture said. Video of that killing precipitated global protests against racial inequality and police brutality. Rolfe could have mistaken the Taser that Brooks aimed at him as he fled for a handgun, Ture conceded, although he pointed out this one was yellow and probably easy to recognize. Plus, Ture noted the officers had patted down Brooks after he stepped out of the car before taking and failing a sobriety test. Part of what led to this tragic conclusion is the well- earned distrust African Americans have of police, who tend to treat Blacks and Latinos as especially dangerous, Ture said. The interactions captured on video between Brooks and the officers were cordial until they tried to handcuff him. “Black people don’t want to be taken into custody,” said Ture, an African American, “because there’s always the fear that they may not come out on the other side.” Andy Harvey, a former Dallas police officer and current police chief of Ennis, Texas, said the officers didn’t have to arrest Brooks despite him registering above the legal blood- alcohol limit for driving. “They could have taken other alternatives before getting to that point where they felt they had to take action,” Harvey said. “How do we resolve this? Is there a cab you could call, or a family member who can come pick him up?” Harvey has written a book titled “Excellence in Policing,” and he hosts a podcast by the same name. He said officers are taught their life may be in danger when a suspect takes away one of their weapons, and that might have contributed to Rolfe’s decision to shoot Brooks. But Harvey said members of law enforcement need to realize the use of force has to be far down their list of tools, especially at a time when their actions are drawing scrutiny with a number of African Americans – often unarmed – dying at the hands of police. “We’re living in a different world now. What the community expects from us has changed,” Harvey said. “When an officer does something egregious, they’re expected now to file charges against him, and even more so now with the sentiment around the country.” Atlanta Mayor Keisha Lance Bottoms spoke out against the use of force in Brooks’ death Saturday night, hours after the resignation of Erika Shields, who resigned as police chief as the killing of Brooks sparked a new wave of protests in Atlanta amid turbulent demonstrations because of Floyd’s death. “While there may be debate as to whether this was an appropriate use of deadly force, I firmly believe that there is a clear distinction between what you can do and what you should do,” Bottoms said. “I do not believe that this was a justified use of deadly force.” The ACLU of Georgia on Sunday joined politicians, faith organizations and business and community leaders in Atlanta demanding structural changes in policing and a reimagining of public safety in the city. “Our nation is based on constitutionally mandated due process under the law and provides for elaborate judicial proceedings to determine whether due process requirements have been met before life and liberty can be taken,” the ACLU said in a statement provided to the Savannah Morning News of the USA TODAY Network. “Yet, police officers continue to deny due process by acting with impunity as judge, jury, and executioner of unarmed Black citizens.”
‘ Reasonable and necessary’
Atlanta police officers, according to the department’s standard operating procedures, are prohibited from using force unless it is “reasonable and necessary to affect an arrest, prevent an escape, necessarily restrict the movement of a prisoner, defend the officer or another from physical assault, or to accomplish other lawful objectives.” In regards to use of lethal or nonlethal weapons, the Atlanta Police Department’s policy references Georgia law, which allows for use of force when a person “reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” If a person is suspected of a felony, the policy allows for use of deadly force, but only if the officer “reasonably believes” that the suspect is in possession of a deadly weapon or object that is likely to result in serious injury, or if the officer believes that the suspect poses an immediate threat to the themselves or others. Additionally, deadly force is allowed if there is probable cause that the suspect has committed a crime that either caused or threatened serious injury or if the officer believes that if the suspect’s escape would threaten serious injury to others.
“We’re living in a different world now. What the community expects from us has changed.”
Andy Harvey
Police chief of Ennis, Texas