a eulogy for autonomy: there is no perfect protestor

At a press conference on December 17, 2024, the family of Tortuguita announced a wrongful death lawsuit against two Georgia State Patrol officers and an agent with the Georgia Bureau of Investigation responsible for the murder of their loved one. Several important claims are made in this filing:

1.      Tort was not on private property and had not been issued a trespassing warning prior to the encounter;

2.       Because Tort was not trespassing, any order to arrest Tort constituted an illegal arrest;

3.       Excessive force was utilized in the illegal arrest of Tort;

4.       Due to the officers firing pepper balls into Tort’s closed tent, Tort had reason to believe they were in imminent risk of death.

The first claim is crucial not only to the wrongful death claim filed by the family, but is also applicable to most (if not all) of the 61 defendants subject to the RICO charges stemming from the political prosecution against them. Criminal trespass should be viewed as the load-bearing charge from which everything else flows. Without a criminal trespass charge, the officers don’t have reason to go into the forest. Without a criminal trespass charge, they don’t have a charge upon which to attach the spurious domestic terrorism charge that they also hit forest defenders with. And without the bogus criminal trespass charge, they had no reason to confront - let alone kill - Tortuguita.

In Georgia, the offense of criminal trespass can be committed in three basic ways:

1. Entering land of another for an unlawful purpose;

2. Entering land of another after receiving prior notice that entrance is forbidden;

3. Remaining on land after being issued a warning from the owner or an authorized representative to vacate.

The complaint lays out that none of these prongs were reasonably met, and more damningly, that the three officers knew that they weren’t met but carried on with the clearing operation that directly led to the death of Tortuguita anyway.

The final sentence on page 10 of the complaint is of particular importance – that “[a]ny person trapped inside a tent filled with oleoserin capsicum would reasonably believe that they were going to die.” Regarding Tort’s final moments, an independent autopsy conducted in March 2023 is routinely mischaracterized as definitively stating that Tort was seated cross-legged with their hands raised when they were shot. While the statement regarding being seated is consistent with the report, the contention that they were in a position of surrender is somewhat disputed. The report states that “[a]t some point during the course of being shot, the decedent was able to raise his(sic) hands and arms up in front of his(sic) body, with his(sic) palms facing his(sic) upper body.” It goes on to conclude that “it is impossible to determine if the decedent had been holding a firearm, or not holding a firearm” either before or during being shot. While the sentence on page ten may seem like a throwaway, it is legally important because it contemplates both possibilities: that Tort did or didn’t have a firearm in their hands the moment that they were shot.

The complaint, anticipating that the officers will simply argue that Tort shot at them which necessitated their responsive barrage of gunfire, lays the foundation for a valid case of self-defense by Tort against the officers that killed them. As the attorneys who filed the complaint reiterated at the press conference, the complaint does not purport to answer the question of what truly happened on that day, because the circumstances surrounding Tort’s killing (and the investigation of it) have precluded that possibility. It therefore must consider the possibility that Tort used force – a position which the complaint subtly contends was justified.  This consideration should extend beyond the courtroom and into the narrative surrounding Tort’s final acts before being shot and killed by the state of Georgia.

Accuracy aside, there are compelling reasons for holding space for multiple possibilities about Tort’s final moments. One thing should be made clear: regardless of whether Tort did or did not fire a single bullet on that day, they deserve to be alive. That they did or they didn’t makes them no less deserving of that right. Telling only the peaceful version of Tort’s final moments despite not truly knowing what happened subconsciously reenforces the idea that there is a right and a wrong way to protest. This dichotomy provides a justification for police violence should someone engage in an act that the state labels as violent, bad, or otherwise disruptive. While even Atlanta Police Chief Darin Schierbaum himself has claimed that “if you want to protest how police are trained, we’re going to give you an environment to do that in and we’re going to protect your right to do that,” the reality is that there is no line of demarcation that the police will respect when it comes to activity that threatens the status quo. Police routinely brutalize protestors, both peaceful and not, without repercussion. They kill thousands of people every year with near impunity and continually redefine the boundaries for the state’s monopoly on violence. Failing to consider that Tort did not adhere to the peaceful protestor archetype cedes ground to a notion that cops like Schierbaum pay lip service to but rarely observe: that there is a right and a wrong way to protest, each deserving of differential treatment.  

Failing to consider that Tort responded in kind to their tent being shot full of chemical agents also potentially denies their autonomy in the final moments before their death. Stating definitively that they had their hands raised as if in a position of surrender wishcasts a position that is more reflective of the person telling the story than the attitude of Tort themselves. The liberalization of their memory as a peaceful martyr fails to really ask the question of who they were as a person and what way they would want to be remembered. If Tort’s final act was a conscious decision to strike back at the oppressors inflicting violence upon them, it is not our place to deny them the memory of that choice by superimposing a sanitized narrative upon it.