Fulton County District Attorney Paul Howard Jr. said Wednesday that fired Atlanta Police Officer Garrett Rolfe was being charged with “felony murder” in the death of Rayshard Brooks. But it is unclear how “felony murder” applies.
“Felony murder” allows a defendant to be charged with murder for a death from a different, underlying felony. A classic example is charging the driver of a getaway car outside a bank for a murder inside the bank during a robbery.
Howard explained during his press conference on Wednesday that Rolfe was being charged for felony murder because of the crime of “aggravated assault” in shooting Brooks (as Brooks resisted arrest, seized an officer’s Taser, fled, and fired):
These are the 11 charges against Officer Rolfe. The first charge is felony murder. This is the death that is as a result of a underlying felony. And in this case, the underlying felony is aggravated assault with a deadly weapon. And the possible sentences for a felony murder conviction would be life, life without parole, or the death penalty.
Note that Rolfe is not being charged with felony murder for any act separate from the shooting of Brooks itself. Nor did the DA suggest that the arrest itself was unlawful.
In many states, it is difficult to charge a defendant with felony murder resulting from an aggravated assault in the same act; the two crimes are considered to be merged.
There is some legal precedent in Georgia for allowing a felony murder charge based on an aggravated assault, but not where voluntary manslaughter is more appropriate — “where the aggravated assault is perpetrated against the homicide victim and is an integral part of the killing and when the evidence authorizes a voluntary manslaughter charge.”
It is possible that the district attorney meant to charge Rolfe with felony murder based on aggravated assault against people other than Brooks. The charges against Rolfe include three counts of “aggravated assault” for gunshots that Rolfe fired that happened to hit another vehicle in which three people were seated.
If Rolfe committed aggravated assault against them — and that is a big “if,” given the likely defense that he did not intend to fire in their direction — and happened to kill Brooks, that would be a more typical example of the application of the “felony murder” doctrine.
However, that is not what Howard said: he specifically said the underlying felony was aggravated assault against Brooks.
That would seem to be the specific kind of charge Georgia courts have said would be excluded from “felony murder” under a limited “merger rule,” because the more appropriate charge in a case like this would be voluntary manslaughter.
It seems the DA, who is up for re-election, may simply have wanted to find a charge with the word “murder” in it, and found the felony murder doctrine a way to do that.
But the risk is that he may have charged Rolfe with a crime that is not recognized under Georgia law.
The result: outraged police, and an outraged public if and when the charge is dismissed.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.