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Officer shouldn't have fired shot in deadly Midtown road rage incident, attorney says

James Wilborn Jr. was shot on W Peachtree St. at 16th Street on Oct. 25.

ATLANTA — New cell phone video shows the moment an Atlanta Police Department officer shot and killed a man in midtown last month. Now, the man's attorney is saying the use of deadly force was unjustified.

The altercation shut down parts of Atlanta's midtown near West Peachtree Street on Oct. 25.

Police said around 8:09 p.m., Atlanta Police Zone Five Officers were working a plain clothes assignment in the area of West Peachtree Street NE & 16th St. NW when an officer saw what appeared to be a road rage incident.  

Cell phone video is showing new details of the altercation between the officer and 35-year-old James Willborn, Jr.

Minkah Merritt, an attorney with Merritt & Merritt Attorneys, is representing Wilborn. He said after speaking with witnesses the situation was not what was first described by APD.

"This was an incident of a broken relationship of an ex-girlfriend who was angry, who had been stalking our client all day," Merritt explained.

Merritt said this all started when Wilborn and his date were pulling into this parking garage near W. Peachtree Street and 16th Street.

"My client is pulling into the apartment garage and that’s when the ex-girlfriend sees him. They then somewhat lock eyes she then pulls out of the parking garage, into the street and at that point, she does a U-turn and begins to ram his vehicle," he said. "She then gets out with an object in her hand and then jumps on the hood. My client is still on (the) interior of his vehicle and does not get out of the vehicle."

Merritt said once the woman gets on top of Wilborn's vehicle he drives away. 

"My client pulls off because he’s frightened scared and concerned. She then, the ex-girlfriend, falls off the vehicle," Merritt said.

That's the moment when an officer working in plain clothes near the area got involved as they witnessed Wilborn driving off with a woman on the vehicle.

APD said the officer ran up to Wilborn's car. Merritt said the officer never identified himself.

"As far as that transition, how does he get out of the car?" Merritt said. "That’s kind of in a debate we’re still trying to figure that all out as far as the witnesses are concerned."

What happened next was caught on cell phone video. 

Merritt said Wilborn's date who was in his passenger seat pulled out her phone and started recording the confrontation. The two are seen going back in forth in the 27-second video.

About two seconds into the clip, the officer said "I don't want to hurt you." Merritt said it's what he shouted next that raises concerns. 

"He specifically says 'I’m going to F you up,' so we can all decide what that means," explained Merritt.

Thirteen seconds into the video the officer is seen and heard firing one shot and Wilborn falls to the ground.

Merritt said in his opinion this did not need to escalate into a homicide.

"My client was not a threat, he didn’t have a weapon on him he didn’t have any drugs on him. As far as deadly force being used, we don’t believe that was warranted and that the killing was unjustified," Merritt said.

The Georgia Bureau of Investigations is now looking into the shooting. They'll turn their findings over to the Fulton County District Attorney's Office, where a legal team there will decide if charges will be filed.

The officer remains on leave pending the outcome of the investigation, according to APD.

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