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Did police officers in the killing of Rayshard Brooks have to use deadly force?

Rayshard Brooks’ shooting death at the hands of Atlanta police has added new fuel to the national conversation and protests over use of force. The encounter began calmly but escalated when officers tried to arrest Brooks for driving under the influence. Judy Woodruff talks to Georgetown University Law Center’s Paul Butler and retired police officer David Thomas of Florida Gulf Coast University.

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  • Judy Woodruff:

    The shooting death of Rayshard Brooks in Atlanta this weekend has added new fuel to the national conversation and protests around the use of force.

    Atlanta police answered a call Friday night that Brooks was asleep in his car at a Wendy's restaurant drive-through. The encounter began calmly, but escalated when police tried to arrest Brooks for driving under the influence. Brooks fought with the officers, and then ran away with one of their Taser guns. After Brooks fired the Taser, one of the officers shot Brooks twice in the back.

    The officer was fired, and charges may be filed this week.

    We explore this case and some of the larger questions with Paul Butler, who specializes in criminal law and race at Georgetown Law School, and retired police officer David Thomas, who is now a professor of forensic studies and criminal justice at Florida Gulf Coast University.

    Hello to both of you. Thank you so much for being here.

    I know this 40-minute encounter, it's too much to go over every second of it, but the two of you have looked at as much as we know, the video that's been released.

    And my question to you is, could this have been headed off from the very beginning? Did the police, coming across a man sitting in his car who had fallen asleep, did they end up — did they have to arrest him?

    Paul Butler, I'm going to come to you first.

  • Paul Butler:

    So, Judy, we see the first 25 minutes of the encounter is civil. At first, the officer who responds says, why don't you just take your car from the driveway to the parking lot and sleep it off?

    That's effective policing.

    But later, when the officer who ends up killing Mr. Brooks shows up, Mr. Brooks says, if you're concerned about my driving, my sister lives two blocks away. I can just walk to her house and leave the car there.

    That also is effective policing. The cops don't have to arrest everyone. Public safety is about keeping people safe. But too often, especially with African-American suspects, the resort is always to arrest. And, sometimes, it leads to these tragic consequences.

  • Judy Woodruff:

    David Thomas, let me ask you about that moment when police made the decision not to just let it go, that, instead, they decide — they did give him a test of whether he had been driving under the influence, and then made the decision to arrest him.

    Did they have a choice to say, you can go?

  • David Thomas:

    The problem with making that choice or having that choice or using discretion, what actually happens in that process is, if I let him go, there's nothing to keep him from returning to that vehicle and driving it.

    And he's impaired. So, because of that, the police do nothing, and if he kills somebody, then the police are going to be held liable for that. So, it's a double-edged sword.

    In most instances, I have seen this happen, where people — officers have done this, and the person comes back, takes the car, and they drive off that. And so then that leads into a chase. And it's a mess.

    So, the reality is, I think that, as much as I would like to say, don't make the arrest, I don't think you have much of a choice, because the officers are responsible.

  • Judy Woodruff:

    Paul Butler, what about that, that the officers were faced with a decision about what to do about what they found there?

  • Paul Butler:

    The reality is, police officers always exercise discretion.

    Most cops will tell you they certainly don't arrest everybody who they have probable cause to arrest. So, it's about commonsense judgment. The officer could have said, if I see you in this car, I'm going to lock you up.

    But, again, Mr. Brooks said, all I have to do is walk two blocks away. We know from the evidence that police officers exercise their discretion not to arrest all the time, and white people are — disproportionately get the benefit of those decisions not to arrest. African-American people and Hispanic people disproportionately get locked up.

  • Judy Woodruff:

    And pick up on that, David Thomas, because, when the point came that they did try to arrest him, he resisted. There was a fight. Mr. Brooks took the Taser of one of the officers. He ran, fired the Taser.

    Then what could the police have done at that point, just to help people understand what the options were for the police in that moment?

  • David Thomas:

    Well, the options are, quite frankly, that the officer never had to use his firearm.

    But on the other side of that, I don't — what you really have to recognize is what Georgia statute is and what the department's — Atlanta Police Department's policy is. And that is considered a deadly weapon, the Taser is.

    In fact, it is classified as a firearm under Georgia statute. The officer never — he didn't have to fire, but once he began that — and people need to understand that, once you start that, drawing that firearm, or you engage or grab somebody, whatever, you can't just turn it off like a switch.

    It is — you just — it has to go through into completion. So, it's — from all things, I would say that this shooting, although awful, it would probably be classified what policing is called lawful, but awful.

  • Judy Woodruff:

    Paul Butler, I know your argument is that it never should have gotten to that point.

    But once it did, what other option did the officers have?

  • Paul Butler:

    Well, the police are only allowed to use deadly force to repel a deadly threat, that is, if they think that they or someone else is about to be killed.

    The use of force has to be proportionate. The police cannot kill in order to prevent a non-deadly threat. The irony is that police officers are trained that Tasers are an alternative to deadly force. They are not considered deadly force under the law.

    And so the issue in this case is whether the officer reasonably used deadly force because he really thought that Mr. Brooks was going to kill him, or, rather, on the other hand, was the officer punishing or retaliating against Mr. Brooks for resisting arrest?

  • Judy Woodruff:

    There's something I want to show both of you.

    There was a notable moment today at a hearing of the Senate Judiciary Committee, an exchange between Texas Republican Senator John Cornyn and Vanita Gupta, who was the head of the Civil Rights Division in the Justice Department under President Obama.

    I want to ask you to listen to this, and then have a question after.

  • Sen. John Cornyn, R-Texas:

    You changed the phrase from systematic to structural racism. What does that mean? That means everything, every institution, every person in America is a racist?

  • Fmr. Attorney General Vanita Gupta:

    It means that there is bias built into existing institutions.

    And the policing — there have been any number of courageous police chiefs that have spoken to the history of systematic racism in policing as well.

  • Sen. John Cornyn:

    But do you think systematic or structural racism can exist in a system that — that requires individual responsibility, or do you think it's one or the other?

  • Fmr. Attorney General Vanita Gupta:

    I think every American institution has been kind of shaped by these forces, and our goal is to do what we can as policy-makers, as advocates to take that out and to provide — and to try to fight it in the modern-day iterations that it appears.

  • Sen. John Cornyn:

    Well, do you believe basically all Americans are racist?

  • Fmr. Attorney General Vanita Gupta:

    I think we all have implicit bias and racial bias, yes, I do.

  • Sen. John Cornyn:

    Wow.

  • Judy Woodruff:

    David Thomas, I want to come to you, because the two of you have studied the police in this country. Is it fair to say that there is inherent bias in the minds of most, if not all white police in this country?

  • David Thomas:

    I think it's even fairer to say that there's implicit bias in every American. We all bring that to the table.

    And that — if a person is selected to become a police officer, that, once they become a police officer, that bias comes into their policing. It's just — it's what America is. We all have our likes and our dislikes. And so that bias is ever-present.

  • Judy Woodruff:

    Paul Butler?

  • Paul Butler:

    So, bias is something that is learned. We're not born prejudiced. And that's good news, because that means we can unlearn it.

    I think the exchange that we just witnessed is about whether the problem is a few bad apple cops, which is how the Trump administration positions it, or, rather, the issues are more systematic.

    We know, in Atlanta, that's the same police department that two weeks ago fired officers because they stopped a car, dragged two college students out of the car, and Tased them for no apparent reason.

    President Obama's Commission on Policing said that, before reform starts, culture has to change. The problem is, too many cops think of themselves as warriors. Guardians is the better model, and so if we had that culture change in Atlanta, that we might see the kind of policing that citizens respect.

  • Judy Woodruff:

    Huge conversation, huge subject. This is just one of many conversations we're going to be having on the "NewsHour" about this.

    But I want to thank both of you for joining us.

    Paul Butler, David Thomas, thank you so much.

  • David Thomas:

    Thank you.

  • Paul Butler:

    Always a pleasure, Judy.

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