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The rule of law is collapsing

The Rayshard Brooks case is tragic but, legally, straightforward

It is the law that makes us ‘the best of animals.’ So saying, Aristotle had a very specific conception of justice in mind: ‘The law is reason free from passion.’ Committed to live under it, mankind is ‘perfected.’ There is, however, a flip side. ‘When separated from law and justice,’ as happens when passion overwhelms reason, mankind ‘is the worst of all.’

Which would make this the worst of times.

The streets of America’s greatest cities are aflame. Some of it is anarchic. Most of it is methodical mayhem. Cultural Marxists are not merely desecrating statuary, they are erasing history. Naturally, this is done under the guise of ideals such as ‘anti-racism’, ‘anti-fascism’, and ‘equality’. Up close, the anti-racists are race-obsessives, the anti-fascists are totalitarian ideologues, and the radical egalitarianism on offer is a perversion that would supplant equality of opportunity with coerced results and an inevitable caste system. As woke white campus reactionaries, clad in their ‘BLM’ t-shirts, confront beleaguered African American police officers, a vignette repeatedly seen but studiously unnoticed in media coverage, you can’t help but wonder as to whether black lives matter to Black Lives Matter.

But the campaign is working, not because it is effacing iconic images of our society, culture, and history, but because it is destroying the rule of law that makes possible a civilization worth having. Its replacement is the rule of the mob.

In Atlanta, police officer Garrett Rolfe (since dismissed from the force) has been charged with capital murder in the shooting death of a violent felon who attacked him and was still pointing a weapon at him when he opened fire. Rolfe and his partner (who has also been charged with felony assault in the case) arrived on the scene of a Wendy’s restaurant, responding to a complaint that a man, Rayshard Brooks, was passed out behind the wheel of his car, blocking the drive-thru line. Upon determining that Brooks was intoxicated and in violation of probation conditions imposed when he was released from prison (at least his third such violation), the cops began to place him under arrest.

Suddenly, Brooks assaulted the police, stole the Taser from one officer and used it on them to help free himself. As he fled, he shot the Taser at the pursuing Rolfe from a little over a yard away, barely missing Rolfe’s head. Rolfe returned fire, striking Rolfe in the back. The police desperately tried to save Brooks with CPR, but he died.


This is a tragic case but, legally, a straightforward one. Brooks was a fleeing felon in possession of a lethal weapon (the stolen Taser), which he used against police. He was a threat to the officers and the community. The shooting was justified.

But Rolfe is white and Brooks was black. In the current climate, nothing more is required by the radical left. The demagogic narrative of cops hunting down black men is satisfied: don’t bother us with the trial, let’s get on with the sentence.

In the US, most state and county prosecutors are elected, not appointed. Paul Howard, the prosecutor in Georgia’s Fulton County, is trailing in his campaign, facing multiple allegations of sexual harassment and an ethics investigation for campaign finance irregularities. A six-term African American progressive incumbent desperate to hold on to the job, Howard has decided to run as anti-cop.

That, he calculates, is the way to go in the riotous rancor that has followed the killing of a black man, George Floyd, after his arrest by Minneapolis police — the atmosphere that also inspired the putatively ‘peaceful protesters’ to torch the Wendy’s where Brooks forcibly instigated the chain of events that led to his shooting.

So Howard has done what authoritarians do when endowed with power. He preposterously charged Rolfe with felony-murder, a death penalty offense. He did not wait for investigators to finish their probe. He filed the allegations unilaterally and had the cops arrested.

Will the charges stand? Hopefully not. The Constitution requires an indictment, and it is unlikely a grand jury would approve so blatant an abuse of prosecutorial power. But for progressive prosecutors, overcharging has become a strategy. The capital murder charge, with the mob baying for blood, puts pressure on the grand jury to indict the police. And if there is an indictment, that puts pressure on a trial jury to convict. Not because of evidence; because of intimidation.

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The strategy is not new. In Minneapolis, the four police involved in George Floyd’s arrest have been charged with murder. It is possible that a murder charge could stick in the case of Derek Chauvin, who knelt on Floyd’s neck as he struggled to breathe. But even that is questionable — Floyd, who had underlying cardio-respiratory issues, resisted arrest and was reportedly high on fentanyl, while Chauvin’s neck hold was apparently not prohibited under police procedures. To charge Chauvin with felony murder (as opposed to negligent homicide) may be a reach; to charge the other three police with it is irrational…except as a prosecutorial strategy to exploit the climate of vengeful violence.

This tactic has been legitimized. Throughout the Obama years, the exorbitant number of black males killed by other black males was ignored; but on the rare occasions when black males were killed by police or non-blacks, the Justice Department routinely mobilized to pressure local authorities to file murder charges, even if unwarranted by the evidence. In the infamous Trayvon Martin case, the result was a patently over-charged murder indictment that resulted in a swift jury acquittal.

The country is a different cauldron right now. In the mob moment, ubiquitous ‘No Justice, No Peace’ signs may be translated: ‘If there are no murder indictments, and murder convictions, there will be more murders.’ The rule of law is collapsing. Reason is out, passion is in.

Andrew C. McCarthy, a former US prosecutor and a bestselling author, is a contributing editor at National Review and a Fox News contributor.


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