ATLANTA SHOOTING 2.0

UPDATE: The DA of Atlanta announced tonight that there are three possible charges. First degree murder; Felony murder- the felony being aggravated assault; or manslaughter. Let us say this- one of the worst pandemics to hit the African American community is the felony murder rule. There are countless minority people serving life sentences for a murder they never committed. Filing a felony murder charge would be a total cop-out; an abandonment of the prosecutor's powers to bring charges. It's either first degree murder or manslaughter. 

Ralph Waldo Emmerson wrote that "A foolish consistency is the hobgoblin of little minds", which is why- like the 11th circuit when they rule for the defendant and the government files a motion to reconsider- we are willing to reconsider  our positions  when we are wrong.

So here are our thoughts about the Atlanta shooting. 
First, from the perspective of the police, the Monday Morning quarterbacking we are seeing is nauseating. You cannot judge a police officer until you have been in his or her shoes. Until you know what it is like to leave your home every day for work with two infant children, hoping nothing happens that day and you can be there to raise them until adulthood. So when the officer is running in the parking lot and Rayshard Brooks turns and fires at him,  fear and training and instinct take over.

But we are willing to consider this deeper. And here is what we know. Brooks was intoxicated. Brooks was searched and no weapon was found. Brooks resisted arrest and disarmed the officer of his taser and fled. The Monday morning QB say that the officer overreacted and should have just let him run and in a moment Brooks would have stopped, winded and being intoxicated, surrendered. 

So the next question is whether this is a matter of race? Was Brooks being properly arrested? Yes. He was passed out, in a car, in a drive-through and apparently his breath alcohol as measured, was over the legal limit. 
So Brooks should have been arrested regardless of his race.

Next question: If Brooks was a white man, would he have been shot? 
Based on what we saw here, with the police officer reacting and over-reacting based on being attacked and having his taser taken-  yes, we think when that officer went after Brooks he was not thinking about Brooks being black. Does that mean that the inherent prejudices that arise with black men did not in some way affect the officer's decision to shoot? There is no way of knowing.

 Now, we have to take a moment and define our terms. Various social movements are highlighting the prejudices that arise simply from a man being black in America in 2020. The differences between the way the police treat a black man being stopped in a car and a white man being stopped in a car. Black parents have to speak to their teenage sons about the dangers of a traffic stop. White parents do not. This is what we mean by the term "inherent prejudice"- the simple and wrong action of judging someone as more dangerous simply because they are a black male.  

We have to disagree with our conclusion yesterday. The shooting is not so clear cut justified. 

But to take it a step further we have to engage in Monday Morning Quarterbacking. We have to say that the officer could have let Brooks run a bit more after Brooks discharged the taser at the officer. We have to say that the officer should not have actively chased Brooks and just remained a distance back and let him run himself out. These are all things that it is easy for us to do from the safety of our voluntary home confinement. Just like it is easy for us to decry how black men are treated differently by the police although we have never experienced such violent treatment. 

What we want to say is that this is not a matter of race. And yet...George Floyd couldn't breathe when a white officer used his knee to end his life. And yet Arthur McDuffie in Miami was shot and killed and the officers acquitted. And yet there are literally hundreds of instances of black men like Trayvon Martin being killed by white men. In 2009 Oscar Grant, a black teenager, was shot in the back and killed by white officers in San Francisco. In November 2019, Ariane McCray was shot and killed by white officers in South Carolina after being stopped for shoplifting at a Walmart. Terrance Franklin, a 22 year old black man was shot and killed in 2013b with his hands in air by Minneapolis SWAT officers responding to a burglary complaint. The list goes on and on and on and on. It is why people are taking to the streets. They have had enough. And we- the wealthy, successful ruling class of America have not listened closely enough. We have shaken our heads in sadness until the next black man was shot and killed or choked to death and then we have shaken our heads again. 

The time for just shaking our heads has run out. That is why people are protesting and burning things and attacking police stations. 
 So how can we say this is not a matter of race when time and time again race factors into an officer's decision to use force and deadly force? 

We are confounded. We do not want this to be about race. And yet....

A VERDICT OF NOT GUILTY

Here's what we know about America 2013: people are still not judged by the content of their character, but by the color of their skin. Race is still the lens through which Americans view events, the criminal justice system, the police, the courts, lawyers and judges. Anger by African-Americans for race based inequalities may have dissipated a bit with the election of an African-American president and advancement of other minorities in other professions, but it still bubbles hotly just beneath the surface of public consciousness and drives behavior. 

In our small corner of the world, what we are concerned with is justice and fair trials. For us, the possible tragic outcome of this case are future jury verdicts that do not reflect the facts of the case. Future defendants-black, white, hispanic, whatever, could pay with their freedom over anger about the verdict in this case. 

We've seen in media (social and standard) calls for the State to appeal the verdict, and criticism of the prosecution for not forcing the defendant to testify and explain his behavior. Shocking ignorance of basic constitutional rights to be sure, but we as legal practitioners ignore the feelings of the general public at our own peril. The burden of proof beyond a reasonable doubt can be threatened by ignorant, populist politicians, and undermined by disgruntled jurors one case at a time. 

We've yet to reach a level of non race based thinking where a white man can kill a black man in self defense and not have the disgraceful tragedy of the killings of Medgar Evers be resurrected. 

Trayvon Martin was a boy. His life had barely begun. But Trayvon Martin was also  (in police parlance) a young black male, and his presence in neighborhood was deemed a threat to a man who had a gun. Neither Martin (who apparently beat up Zimmerman) nor Zimmerman who clearly escalated this encounter, are blameless. Trayvon Martin paid for the misjudgments that young men often make with his life. Zimmerman paid for the tragedies that guns often create with his life inexorably changed for the worst.

What's the tragedy here? Martin was scared by Zimmerman and responded by attacking him. Zimmerman was scared by Martin and responded by killing him.  The tragedy is that we need to stop being scared by each other. We need to stop shooting each other. We need to stop carrying guns wherever we go. We need to stop evaluating every encounter between two different colored people in 2013 based on their race, and most importantly, we need to stop screaming about throwing out cherished constitutional rights every time a case turns out differently than we wanted. White americans decried the justice system when OJ Simpson was acquitted and african-americans are now upset because Zimmerman was acquitted. 

These cases might well be the cost we pay so the thousand or so criminal trials that happen throughout our country every month- trials no one pays attention to or tweets about- resolve in a just and fair way. No defendant in the future should be convicted because Zimmerman was acquitted. That would be the real tragedy if that was the legacy of Trayvon Martin's tragic and untimely death. 

See you in court.