Rayshard Brooks was asleep in his car in a Wendy’s drive-through Friday night when police arrived.
A little more than 40 minutes later an officer shot and killed him.
Video footage released by the Atlanta Police Department captures the timeline leading up to Brooks’ death, ruled a homicide by the Fulton County Medical Examiner on Sunday. Through a combination of the officer’s body camera, dash camera and Wendy’s surveillance, the footage reveals key decisions by the officers involved, and important context that may be presented in potential criminal or civil trials.
Research shows that re-watching violent videos can traumatize viewers and lead to negative mental health effects. To help readers understand what happens in the video without having to view it multiple times, USA TODAY spoke with four law professors who analyzed the footage in a legal context.
Officer Devin Brosnan is the first to arrive on scene. After he wakes Brooks and directs him to pull his car away from the drive-through line and into a parking space, Brosnan asks if Brooks is in possession of a weapon and if he can conduct a search.
The search is critical for two reasons, according to experts.
“It does show he is cooperative,” said Kenneth B. Nunn, professor of law at University of Florida’s Levin College of Law. “And the other thing that’s very important about the search is they patted him down, he’s out of the car, never gets back in the car so officers know he does not have a weapon.”
That knowledge becomes more critical later as officers employ force in restraining, then shooting Brooks.
“The argument is, when officers show up, they’re primed and thinking this is going to be a potentially deadly conflict. So just reaching for your wallet makes them think there might be a weapon,” Nunn said. “But you really can’t make that argument here.”
Nunn referenced the 1999 case of Amadou Diallo, an unarmed Black man shot 19 times by New York City police officers after reaching for his wallet which police thought was a gun. The four officers involved were acquitted.
Katherine Macfarlane, an associate professor of law at the University of Idaho, whose essay “Foreseeable Police Shootings” was published in the Columbia Law Review Forum in January, said the decision to pat down Brooks may have been the start of escalating tensions.
“What about this suddenly turns into fear of Mr. Brooks having a weapon on him?” Macfarlane said. “Even just the mention, just the question whether you’re armed even though I know it’s routine, I think turns this into an encounter that now feels much more dangerous than it did just a few minutes before.”
If she were representing Brooks’ family in a civil case, Macfarlane says she’d want everyone involved to see the early footage, well before the shooting took place. The question, she says, is whether even the initial response was warranted, and if the ultimately fatal results could have been expected based on that initial response.
“If we back it up and back it up to the extent that this wasn’t deescalated, was it foreseeable that something violent as going to happen?” Macfarlane said.
“What was going through these officers’ minds? Did they not know what’s happening around the country and the care to be taken in these kinds of interactions?”
Over the course of seven minutes, Brooks is asked to partake in field sobriety tests conducted by the officers. At one point, about 38 minutes into the encounter, Brooks asks if he can lock his car and walk to his sister’s house a short distance away.
Experts agree that officers have a wide amount of leeway when it comes to arresting an individual they believe has committed a crime, including a charge like driving while impaired.
“This is, I think, one of the key moments here,” said David Harris, professor of law at the University of Pittsburgh. “Police officers always have discretion on how they will handle any particular situation with very limited exceptions.”
Prior to that point, police had not administered a breathalyzer test. Harris said that test may not have been necessary if Brooks was willing and able to walk home, therefore not endangering the public by driving while impaired.
“It might be that lots of officers would make the arrest anyway. But there is a choice being made here. The police do not have to arrest him, they don’t even have to give him a breath test,” Harris said. The officer could have said “OK, leave the car there, leave the keys with me and I’ll drive the keys over to sister’s house and you walk home. Or I’ll give you a ride or get an Uber or whatever.
“Nobody says he has to make an arrest here. The law does not require it.”
Brooks consents to a breathalyzer test a little less than 40 minutes after being detained. According to the Georgia Bureau of Investigations, he fails. Officer Rolfe then says “I think you had too much to drink to be driving. Put your hands behind your back for me,” according to body camera footage.
Macfarlane said police are given broad Constitutional authority to arrest an individual or continue to detain them when there is probable cause that they have committed a crime. After Brooks failed the breathalyzer test, and even before, they had enough probable cause to continue to detain him, she says.
“But what I hope we’re all getting out of this conversation is we’ve gone way too far,” she said. “The commonsense approach to these conversations, is to give him a ride home or let someone come and pick him up.”
Trevor Gardner, an associate professor of law at Washington University School of Law, suggests police could consider allowing officers to issue summons to appear in court as opposed to arresting them.
“Do we need to arrest for each and every criminal violation?” Gardner said. “Brooks offered to walk to his sister’s house from the scene of the police stop, presumably after the officers had collected his identifying information. Under these facts, an arrest might be considered an unnecessary escalation.”
Brooks resists arrest, takes officer’s Taser
As officers try to handcuff Brooks, he resists and a skirmish ensues.
“In the midst of this explosion of concern over African Americans and the police and he’s reading and watching the same things on TV that all the rest of us are, he’s stopped by police and it looks like they're not being reasonable and taking a long time and he begins to worry," suggested Nunn, who also serves as the assistant director of the criminal justice center at the University of Florida.
Brooks and the two officers fall to the ground, where Brosnan reaches for his Taser and attempts to deploy it. Brooks grabs for it and at one point punches the officer.
Experts agree that as Brooks resists, the question of the appropriate level of police force is raised.
Harris, who hosts the Criminal Injustice podcast, says the basic rules regarding reasonable use of force are fairly consistent across police departments.
“The basic idea is that force is divided into levels, usually I think in terms of six levels, and you’re allowed as a police officer to use enough force to overcome the resistance you face,” Harris said. “If you’re facing no resistance you don’t get to use any force except what’s necessary to handcuff an individual.”
As Brooks pulled away, Harris says officers would be allowed to use enough force to overcome Brooks' resistance.
“While wrestling with him on the ground, God forbid they tried to shoot him, that’d plainly be wrong. They don’t do that, they try to use a Taser on him and that’s not considered lethal force, though some people die from that if done poorly.”
Nunn, however, argues that had officers shot Brooks while they were all on the ground, officers could have argued that Brooks was reaching for their weapons and they feared for their lives. In that case the shooting may have been a justifiable amount of force, Nunn says.
“Had they shot him at that point, it’d be a much harder case for the prosecution,” he said.
In the culminating moments of the interaction, Brooks is seen on surveillance footage running away from the officers. In his hand is Brosnan’s Taser, which Brooks turns and fires at Rolfe. After Brooks unsuccessfully deploys the Taser, Rolfe reaches for his handgun and shoots three shots as Brooks continues to run. Brooks falls.
This is the main point of focus for Gardner, who says the first step is to look at Georgia law with respect to deadly force.
“The question is whether the officer reasonably believed this course was necessary to prevent the officer’s death or suffering serious bodily injury,” Gardner said.
“There’s a challenge here because on the one hand, Brooks is running away and the officer shoots him twice in the back. Those facts make the situation particularly tragic. Someone being shot in the back, that’s a very difficult scenario to process by the public, the African American community in particular.”
But in envisioning how a prosecutor may approach a criminal case against Rolfe, Gardner says Brooks’ possession and deployment of the Taser would be taken into consideration.
“It feels like a bang-bang situation where the officer then pulls out a firearm in response to the Taser being pointed at him and deploying,” Garner said. “When the officer shoots, Brooks is already turned around and continuing to run. So under that particular circumstance there’s a question of whether the officer reasonably believed at the point he shoots his weapon, that he had to shoot that weapon in order to prevent great bodily injury.”
The fact that the timeframe is so short between the point where Brooks ineffectively deploys the Taser and continues to run, and when Rolfe fires his gun, could make it challenging for prosecutors, Garner said.
“If Brooks is running away without a Taser, and an officer shoots him twice in the back, obviously that’s much easier for a prosecutor to show deadly force was not necessary,” Garner said. “But the Taser alone may not be enough for an officer to demonstrate that he was at risk of serious bodily injury.”
In his view, Harris says there is no visible threat of death or serious injury, noting that because of the prior pat down, officers know the only weapon in Brooks’ possession is the Taser.
“By the time the officer gets his firearm into his hand and takes aim there is no deadly threat as I see it,” he said.
By early Sunday, Atlanta Police Department Sergeant John Chafee confirmed to USA TODAY that Rolfe, who was hired in October 2013, was fired for shooting Brooks. Brosnan was placed on administrative duty. No announcement has been made as to whether the officers will face criminal charges.
Nunn says that if criminal charges are pursued, they will likely be a form of criminal negligence, as Georgia does not have a charge of second or third-degree murder.
“I don’t think there’s going to be sufficient evidence from what we see to establish an intent to kill,” Nunn said. “I think that takes murder off of the table.”
Macfarlane said that a civil case will also be difficult if the family chooses to litigate.
“When you bring a civil rights action for an incident like this, you can argue that the Constitution was violated in different ways and you’re entitled to money damages. One of the claims here might be a violation of the 4th Amendment, you used force that was unreasonable, and we get that reasonable language from the 4th Amendment itself.”
A defense to the excessive use of force claim that that Macfarlane would expect to be used is that officers are allowed to make a reasonable mistake. She likens it to situations like the Diallo case where officers mistook a wallet for a gun.
If the officer is able to argue that he feared for his life, the life of others or feared serious bodily injury, then “made a split-second decision, we allow officers to make them and the result is what it is,” Macfarlane said.
“What I wish we would think about more as a country is everything that happened before, and every single choice those police officers had to walk away, to give him a ride home, to let him call all the people he was mentioning that live nearby,” Macfarlane said. “I think there’s room to start thinking about that legally, too.”