No Justice

by Robbie Tolan

  I think that was the difference in our lawyers. Lawyers like Greenwood, Morris, and Siegel really demonstrated that they were on our side and the side of justice. It’s not that the Bergs didn’t want the same thing, but in a show don’t tell world, the aforementioned lawyers definitely showed, while the Bergs were busy laughing with our opponents. Guess who we liked more?

  I also loved how Crump handled the press. He was out there advocating for us.

  “All this family wants is their day in court,” Crump said. “We have to send a message to police when they act in this outrageous conduct. The law has to protect citizens whether they are black, white, or Hispanic.”

  But Crump had bad news for us. Judge Harmon hadn’t been impressed by the Supreme Court’s ruling and basically said that she didn’t care. The day before the trial was supposed to begin, she was even considering dismissing the case.

  “I’m very tempted to grant it [dismissal] but I’m not going to right now.… I think the Supreme Court sent it back to the circuit so they could reanalyze my case. The 5th Circuit didn’t want to do that, so they punted to me. And I don’t think… they would ever be satisfied if we didn’t take this case to trial.… I have a lot of faith in my opinion.… I thought it was right the first time.”

  “We’ve got to try to get Judge Harmon off this case,” Crump told us. “If not, we’re going to need to think about settling this case.”

  I couldn’t believe that the criminal justice system could allow a district court judge to pretty much ignore a precedent, simply because she thought she was right the first time. No, Judge Harmon, nine justices told you that you weren’t. I don’t know if it was ego, or hurt feelings, or what, but she was a stumbling block that needed to be removed. I didn’t spend eight years in the courts to simply allow her to block us.

  So Crump filed an emergency motion for recusal, arguing that Judge Harmon had made comments saying that she was confident in her original decision, despite the Supreme Court’s ruling.

  At first, we didn’t hear anything from Judge Harmon on that matter, but she did make it a point to release an eighteen-page opinion that barred us from introducing Major League Baseball players like my cousin Ken Griffey Jr. from testifying as expert witnesses in my case, something that a federal magistrate judge had allowed us to do. We wanted them to speak as experts on how the bullet in my gut had harmed my potential earnings as a baseball player, but Judge Harmon ruled that they needed to provide “reports” as experts, and since they hadn’t, they were out.

  It was furious because it seemed like this judge had it out for us. And then came her ruling about recusing herself from the case. She denied our request, saying that she had “never expressed a personal bias or prejudice against Robert R. Tolan or in favor of Jeffrey Cotton.”

  Give me a break. The only thing Judge Harmon hadn’t done in favor of Cotton was to pin badges on his chest. And again, with an arrogance that I didn’t understand, she reiterated, “I have a lot of faith in my opinion,” despite being vacated by the Supreme Court. It was clear to me that when Judge Harmon wrote that she hadn’t displayed a “deep-seated favoritism or antagonism that would make fair judgment impossible,” she wanted to make sure that she stayed on this case and that her finger was still on those scales for Cotton. That’s the only way I could see it.

  But Crump didn’t quit. He noted that Judge Harmon had based her decision to stay on the case by only pointing to one of two federal statutes, but she hadn’t responded to a statute stating that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

  Judge Harmon denied our initial request by stating, “When a judge makes a ruling or says or does something in the course of pretrial or trial proceedings, impartiality cannot reasonably be questioned simply because one side wins and the other loses.”

  It was a hopeless battle, and to be honest, we were getting weary. The prospect of going to trial in Judge Harmon’s courtroom, and almost certainly coming out with nothing, seemed like a forgone conclusion. If she still believed in her original opinion, then, as Crump told us, she sure as hell still believed in the conclusion she drew the first time. It was time to settle, I realized. But I was going to have to convince my mom, who didn’t want to give up the fight.

  “We are not going to let them get away with this,” my mom argued.

  “But we’re not. I’m just tired,” I told her. “We’ve been at this for eight years. Eight long years of my life, and at some point, it’s time for me to move on with my life. I can’t let this one bullet consume me forever.”

  I was tired of this shit. I had just turned thirty. Nearly 75 percent of my twenties had been fighting this battle. I had spent all of my twenties dealing with this shit, and no, I didn’t have a nervous breakdown. I could have been a normal person who does things like have fun or go to the club and talk to pretty women. But instead, I’ve gotta worry about how I’m seen in the media. This incident was always hanging over my life. I needed to move on to something else.

  My mom wasn’t trying to hear any of that. If there was one true cost of this long fight, particularly when it came to settling the case, it was the relationship between me and my mom. Settling caused a deep rift between me and the woman who’d talked to me when I was still in the womb, who’d nurtured me to the point of surviving when my twin hadn’t, and who’d fought for me at every turn. She couldn’t understand that my life was my life and not a cause célèbre.

  “We were treated like shit, and I wanted white folks to understand that this is happening to American citizens, and everybody should be upset when an American citizen isn’t treated right,” Marian recounted. “I just felt like since Bobby was a former baseball player, that they might listen for the first time, and that we might use what we could to make change for the greater good. And I didn’t care about what it would cost. And I didn’t care about selling my house. And I wanted to win because I knew God saved Robbie for a reason. And whatever he wanted us to do, we were going to do it at all costs. And I win.”

  “I don’t think Robbie and I were in conflict until the case went back to [Judge Harmon], and I think he had a nervous breakdown. I was ready to fight, I was ready to go back to the Supreme Court.”

  What my mom didn’t realize is that, if we kept fighting, we would be fighting for another five or so years. I would be in my mid-thirties still dealing with this. I couldn’t take it, and we argued, hard, because I think she thought I was giving up. But I wasn’t giving up; I was giving in to having a life without this burden on my shoulders each and every day.

  It was emotional between me and my mom. We were beefing hard, and it was difficult to deal with because the one person who’d been my biggest advocate was now my biggest adversary when it came to stopping this whole thing. She just wasn’t having it.

  The point at which she began to see this case, and the rest of my life, through my eyes was when Ben Crump told me that the judge had thrown not only the baseball witnesses off the case, but also the City of Bellaire, my mom and dad, and Anthony. So going forward, it would only be me versus Cotton in a civil suit. So here we were, me with no money versus a cop with no money.

  “Now I just represent you,” Crump told me. “If you want to settle, that’s what we’ll do.”

  Crump told us that we were actually in a weaker position due to the fact that Judge Harmon was going to be on the bench, so we needed to settle now before the City of Bellaire decided to wait us out.

  I told my mom that, at least when it came to the legal aspect, my case was over. “We did what we could,” I said. “We fought.”

  My mom was livid.

  “I don’t want to hear that shit!” my mom said angrily. “I told you that I’m not settling, and I don’t care if you’re tired, I’m not tired!”

  I was so conflicted because I didn’t want to make a deal if the person who had been fighting for me didn’t want it. It physically broke me. I passed out to t
he point of not being able to walk.

  I was angry because my dad had had a full life. My mom had had a full life. And what about me? What am I gonna do, fight this for the rest of my life? I’ve had no life.

  I called my mom crying and barely able to talk. I wanted to settle and get out from under this. Finally, my mom told me to take the deal.

  “I’m sorry,” I sobbed to my mom. “I’m sorry.”

  “Don’t worry, Robbie, take the deal,” she said.

  It was the hardest day of my life.

  “I knew that Robbie couldn’t take it,” said Marian. “He was in conflict because he didn’t want to go against me, and I wanted to keep fighting. I wanted to keep fighting for those people who can’t fight for themselves, but I couldn’t keep fighting and risk losing him. I knew I would have to fight in a different way.”

  After a bit of negotiation, the City of Bellaire agreed to settle the case for $110,000. It was a pittance compared to the medical and legal fees, totaling almost a million dollars, that were drowning me, and I don’t look at the settlement as a victory. It was simply a conclusion to a long personal nightmare.

  After the settlement, we left the courtroom to face a gaggle of reporters, who all wanted to know what was next.

  “Nobody can call him a thug,” Crump told reporters. “No police union can try to defame his name or character. He has no criminal history. He comes from a good family.”

  “I’m satisfied that I get to move on and tell my story,” I told reporters as I left court. “We need to continue to work to effect change. Until that happens, it’s going to keep happening. Young black men, unarmed, are going to keep getting shot until we do something about it.”

  “Though I still have my son, I’ve had to watch his dreams and a part of his spirit die,” my mom told reporters. “We’ve given up so much as a family to get a chance at justice. A chance at peace. A chance at being whole again.”

  CHAPTER 10

  A LIFE WITHOUT TRUE JUSTICE

  Rumain Brisbon, 34, Phoenix, Arizona—December 2, 2014

  Rumain Brisbon, a thirty-four-year-old African American father of four, was shot and killed in Phoenix, Arizona, by Officer Mark Rine. An anonymous tip indicated that Brisbon was involved in a drug deal, and when Officer Rine approached Brisbon, he claimed to see Brisbon put something in his waistband. After Officer Rine confronted him, Brisbon ran and was soon chased by Officer Rine to Brisbon’s girlfriend’s apartment, where according to the police, there was a struggle. Officer Rine claimed to fear for his life, thinking that Brisbon had a gun, so he shot Brisbon twice, killing him. Later it was found that Brisbon was unarmed, with only a bottle of oxycodone in his pocket. Officer Rine was not charged in the shooting.

  So where does this leave us? Where does it leave my family? Where does it leave other black victims of police racial profiling and police violence? Where does it leave the City of Bellaire, the Bellaire Police Department, and the black citizens who are doing ordinary things in this country, but who can be profiled to the point of being shot? Where does it leave the criminal justice system, which maintains that black people can be shot as long as a judge considers it reasonable? And lastly, where does it leave me?

  For my family, December 31, 2008, was a devastating day. They watched as their only child was shot and nearly killed. They sat in the hospital, praying prayers as they’d never done before, hoping that the bullet that resided in my liver didn’t do any more damage. They saw the stress nearly kill my dad to the point where he required a double heart bypass. They took me in when I couldn’t go back to the house in which I’d grown up. They filled rows of the courthouse and went through the emotional roller coaster of watching a jury of their peers essentially say that their family member deserved that bullet because they felt Sgt. Cotton was being “reasonable.”

  Bullshit.

  What’s not reasonable is the damage to my parents and to our relationship that one bullet caused, something I can’t overemphasize. You know how people like to say that the victims of shootings aren’t the only victims, well, I know that firsthand now. Even though they hadn’t been the target of the bullet that entered my chest, my family was just as wounded as me when it came to this ordeal.

  My parents lost their home in order to pay the legal fees for my appeal. I watched as my elderly father, who should have been living a relaxed life, had to start driving for Uber in order to make ends meet. Watching this, I couldn’t help but think about the Rudyard Kipling poem, “If,” where he writes, “If you can force your heart and nerve and sinew, to serve your turn long after they are gone. And so hold on when there is nothing in you, except the Will which says to them: ‘Hold on.’” My father embodied the hero who did his best to hold on as his son struggled to find justice, with no guarantee that he’d find it.

  But my greatest regret centers around how this shooting caused a fissure between me and my mom. I watched my mom, that relentless warrior for justice, grow frustrated with the system, and sometimes me, as the reality hit that we wouldn’t get Cotton and Edwards to apologize for their actions. For years, my mom and I fought and argued about how far to take this struggle, and whether quitting was preferable to living a life that seemed suspended in uncertainty. My mom looked at the big picture, the one that said holding the police responsible for what they did to me was as important for my own life as it was for the lives of countless black people who’d find themselves in the same unjust situation. And the Supreme Court decision was a justification for her point of view. Robbie Tolan had moved from being a local story about another police shooting to a case study that would be cited by courts for years to come.

  But what about my life? What about a life that I wanted? My mom couldn’t understand that I didn’t want to live my life as one long court case, as one long symbol of police brutality. In some ways, the extraordinary circumstances that I was thrust into made me yearn for the ordinary life of the anonymous person on the street. I craved it, that sense that I could move on from this bullet in my chest and into a new Robbie Tolan. A Robbie who laughed again, who loved again, who had dreams again.

  I have no doubt that my mom wanted the same thing from me, but when two people are competing to define someone’s future, I think it’s easy to become myopic, and that’s what happened with my mom. So our relationship suffered as I didn’t want to disappoint her, and she wanted to fight for me.

  And it would be nice to say that everything is okay with us, but it’s not completely. I think as long as we live, my mom, ever the fighter, will think that I should have fought to the end instead of taking the settlement. But I knew better, even when I would literally break down in tears, overwhelmed by the idea that I was disappointing my mother.

  But I learned that no matter how we both thought we were doing what was right, I had to take control of my life. To get my story out to the world. To control my own destiny. And that meant that my mom and I would have to heal both together and separately. No one, not even my mom, who I love to the moon and beyond, was responsible for what I was to become and how I would define myself. I wasn’t going to have my life defined by the injustice of a bullet, and that meant that even if my mom thought otherwise, I was going to have to move on with my life. However, here’s what I know. We’ll get through this.

  We wouldn’t get a settlement that sent a message to the world that you can’t just shoot black people when you want and get away with it.

  What about black victims of police racial profiling and police violence? Not just the high-profile victims who are shot, killed, and then turned into social media hashtags, but also the ordinary black people who walk around living ordinary lives? Do they feel more reassured that the police will be held accountable when, at best, a mistake is made or, at worst, a police officer purposefully harms them? I don’t think so. I think because of my little case, black people around this country are that much less secure.

  Black lives matter for real, and it’s not just a slogan. If we’re going to be
a country where every citizen is asked to believe in the police, then we’re going to need to trust the police, and I don’t think any black person, at least any sane black person, should blindly trust the police. This isn’t to say that you hate the police or, hell, that you love the police. Hating or loving the police isn’t germane to whether or not black people can expect to live on this earth without being harassed or killed by the people who are supposed to be protecting and serving their citizens.

  If I come off as sad and bitter, then so be it. All I can do is react to the world that I see. I see Charlottesville, where a young woman, Heather Heyer, gets killed by a neo-Nazi, and Donald Trump, who currently occupies the White House, openly coddles the neo-Nazis as having “good people on both sides.” We live in a world where the leader of the free world instructs police to not to worry about “being rough” with potential suspects. How in the world am I to believe that I live in an America where my rights are protected and the bullet that entered my chest is justified by a man who sees me as a nothing?

  I don’t.

  I see an increasingly cruel America, an America where Colin Kaepernick and NFL players kneel over the issue of police brutality, and white America gets fake mad about “disrespecting the flag.” How can I believe that police departments from Los Angeles to New York City are going to take the shootings of black people seriously, when white people want to turn an intentional blind eye to the issue?

  As a black person, it makes you want to scream, because no matter what we do, we’re told to keep quiet. We march in the streets, and we’re told that we shouldn’t march. We silently protest, we’re told that we shouldn’t protest. But when we’re shot the silence about our lives is deafening.