Late yesterday, the District Attorney for Cuyahoga County, Ohio announced that a Grand Jury had declined to indict a Cleveland police officer in connection with the shooting death of twelve year-old Tamir Rice:
CLEVELAND — A grand jury declined on Monday to charge a Cleveland patrolman who fatally shot a 12-year-old boy holding a pellet gun, capping more than a year of investigation into a case that added to national outrage over white officers killing African-Americans.
In announcing the decision, Timothy J. McGinty, the Cuyahoga County prosecutor, said he had recommended that the grand jurors not bring charges in the killing of the boy, Tamir Rice, who was playing with the gun outside a recreation center in November 2014.
Mr. McGinty said the fatal encounter had been a tragedy and a “perfect storm of human error, mistakes and miscommunications.” But he said that enhancement of video from the scene had made it “indisputable” that Tamir, who was black, was drawing the pellet gun from his waistband when he was shot, either to hand it over to the officers or to show them that it was not a real firearm. He said that there was no reason for the officers to know that, and that the officer who fired, Timothy Loehmann, had a reason to fear for his life.
The case began when a caller to 911 said a male was pointing a gun at people in a Cleveland park. The caller added that the gun was “probably fake,” and that the person waving it was “probably a juvenile.” But those caveats were not relayed to Officer Loehmann or his partner, Frank Garmback, who was driving the patrol car. Officer Loehmann, who is white, opened fire within seconds of arriving at the park. Officer Garmback was also spared any charges.
The shooting in Cleveland came just two days before a grand jury in Missouri declined to indict a white police officer in Ferguson who fatally shot Michael Brown, an unarmed black 18-year-old. The Ferguson case became one of a series of police killings that drew protests — in New York, Baltimore, North Charleston, S.C., and other cities — by demonstrators denouncing the way the police treat African-Americans.
Though some officers have been charged this year for on-duty killings, in cities including Cincinnati and Baltimore, others have not. Mr. McGinty said that no matter how tragic the circumstances involving Tamir’s death, the law gives the benefit of the doubt to officers who must make split-second decisions.
Tamir’s family and protesters had criticized the approach of the prosecutor throughout the investigation, which took more than 13 months. The Cleveland police initially investigated the case, then the county sheriff’s office conducted its own inquiry. Mr. McGinty’s office released the results of the sheriff’s investigation in June, and months later presented the case to a grand jury.
“It has been clear for months now that Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment,” lawyers for Tamir Rice’s family said Monday in a statement. “Even though video shows the police shooting Tamir in less than one second, Prosecutor McGinty hired so-called expert witnesses to try to exonerate the officers and tell the grand jury their conduct was reasonable and justified.”
City and state officials urged calm. In a statement, Gov. John R. Kasich, a Republican presidential candidate, said that he understood “how this decision will leave many people asking themselves if justice was served,” but urged residents not to “give in to anger and frustration and let it divide us.”
A steady wind and cold rain Monday night drove away a small group of demonstrators who had gathered at the park where Tamir was fatally shot. Mementos were left at a makeshift memorial there throughout the day, including dozens of teddy bears, plastic flowers and small wooden crosses. The rain and wind extinguished candles that had been lit in the boy’s memory.
At a news conference after the prosecutor’s announcement, Mayor Frank Jackson expressed condolences to the Rice family and said the city would begin an administrative review of the shooting now that the grand jury’s work was finished. Mr. Jackson said meaningful changes to the Division of Police had been made since Tamir’s death, including efforts to give officers first-aid training and provide basic medical kits in police cars.
“This has caused the city of Cleveland, with the loss of a child at the hands of a police officer, to do a lot of soul searching,” Mr. Jackson said. “And in the midst of that soul searching we have made some changes.”
“All this is designed to better ensure that an incident like this will never happen again,” he added.
Police Chief Calvin Williams said Officers Loehmann and Garmback would remain on restricted duty until the administrative review was completed. He said the review would look at whether department policies were violated during the encounter, including the actions of the call taker and dispatcher, the shooting itself, and the aftermath. “We’ll look at the incident from start to finish,” Chief Williams said, and consider discipline if violations are found.
As with many police killings this year, outrage was sparked by what was caught on camera. Grainy surveillance video, which circulated widely online, showed Officer Garmback pulling the police cruiser within a few feet of Tamir and Officer Loehmann stepping out of the car and almost immediately firing his gun. Tamir died hours later.
Mr. McGinty noted that the officers had never been told that the original caller suggested the gun might be a fake. “Had the officers been aware of these qualifiers, the training officer who was driving might have approached the scene with less urgency,” said Mr. McGinty, who said the officers could not be penalized for what they did not know. “Lives may not have been put at stake.”
Matthew Meyer, an assistant prosecutor, said that it was difficult to tell the difference between the pellet gun and a real one because the orange safety tip was missing, and that the guns otherwise look the same from a distance. Prosecutors also said that Tamir looked large for his age, and that the neighborhood has a history of violence, and that other officers have been killed nearby.
Mr. McGinty said: “The death of Tamir Rice was an absolute tragedy. It was horrible, unfortunate and regrettable. But it was not, by the law that binds us, a crime.”
Mr. McGinty defended his decision to publicly release a series of expert reports he commissioned before the grand jury announcement, saying they made for a transparent process that allowed the public to reach informed conclusions. Those reports found that Officer Loehmann acted reasonably in shooting Tamir, but the Rice family commissioned its own outside reports that reached the opposite conclusion.
Mr. McGinty said he had called Tamir’s mother to tell her of the grand jury’s actions and that it had been a “tough conversation.” He said he “appreciated the sincere emotion and concern of all citizens” but asked the community to “respect the process.” He said Tamir’s family may yet find some redress in civil courts.
As I noted when I first wrote about this case at the beginning of the year, there are a number of factors about this case that raises serious questions about the officers conduct, and they remain even after the decision announced yesterday and the release of the Grand Jury’s report. Off the top, it seems to be well-established from the radio reports that the police officers who responded to the initial 911 call regarding an incident at the park were not aware of several facts that had been passed on the 911 dispatcher. The first of these was the caller’s assessment that the person he saw brandishing a weapon appeared to be a minor, and the second was the observation by the same caller that it looked like the gun he saw might be a toy rather than an actual gun. Why the dispatcher failed to pass this information along to the officers is unclear, but the record of the radio traffic seems to make clear that it was not passed on at all. Had it been, then it’s at least possible that the officers would have handled the encounter differently than they actually did, and that Tamir Rice would be alive today. Even taking that into account, though, the officers actions as represented on the videos that have been released certainly raise questions about how they approached the situation.
As the video shows, the officers involved come up on the scene at a high rate of speed, exit their patrol car, and almost immediately begin shooting. Even taking the representations of what they interpreted Rice’s movements to be at face value, there doesn’t appear to be any effort on the part of the officers to either assess the situation or give the suspect involved a chance to surrender. There is no evidence that any of this happened. Indeed, if the officers did try to give Rice time to surrender and drop the weapon, the video makes clear that they gave him no time at all to respond before opening fire. While it’s true that police are often called on to make split second decisions in cases like this, the fact that there was no apparent danger at the time would seem to make the decision to immediately open fire unreasonable regardless of Rice’s age or any of the other facts involved. Additionally, the fact that there was no apparent threat to civilians, and no evidence that Rice was a fleeing felon, or indeed that he was fleeing at all. Instead, all the videos appear to show is Rice standing in a park when a police cruiser pulls up, the police get out, and begin shooting. If this were an “active shooter” situation, that would perhaps be appropriate, but there’s no evidence to suggest that it would have been reasonable for the police to assume that this was the case.
Interestingly, and perhaps significantly, the Grand Jury’s determination that there should not be an indictment in this case is different from the conclusion reached by a Cleveland Judge earlier this year who found probable cause to charge Officer Loehmann with murder in the Rice case. That ruling came in an somewhat unusual proceeding brought by activists and community leaders designed to force the authorities to act in the case, and it ended up having no real impact on the outcome of the case. It’s also worth noting that the Judge did not have access to certain information that was submitted to the Grand Jury because the Police and prosecutors refused to participate in the proceedings, and could not be forced to participate. Notwithstanding this caveat, though, the difference in outcome is certainly noteworthy, especially in light of the fact that the Cuyahoga County Prosecutor who submitted the Rice case to the Grand Jury has admitted that he did not believe that charges against Officers Loehmann were appropriate given the facts of the case.
Given that admission on the prosecutors part, this case once again raises the issue of whether investigations of officer-involved shootings are being handled appropriately, or at least handled in a manner that brings more public confidence to a system that many people believe to be rigged. As I’ve noted before, the procedure that is used in most officer involved shootings in most jurisdictions today means that the party responsible for investigating officer-involved shootings is the same prosecutors office that is required to work with the very police department(s) they are investigating on a daily basis in ordinary criminal cases. Because of that, there are obvious concerns raised that the need for prosecutors to maintain a good relationship with the police ends up overriding the obligation to fully investigate cases where police are accused of improper behavior. Quite often, in fact, it seems clear that prosecutors end up giving officers the benefit of the doubt in situations where civilians would obviously not get such consideration. Because of that chance for bias, or at least the appearance of impropriety, there have been many proposals made to have police involved shootings handled in a different manner. Some have proposed that these officer involved shootings should be investigated by prosecutors independent of those who work with the officers and departments involved on a regular basis. In New York State, the Attorney General has proposed state law be changed to provide that officer-involved shootings be investigated by his office rather than local prosecutors, an idea that Paul Cassell at The Volokh Conspiracy has also suggested. Others have made similar proposals for some kind of “special prosecutor” for officer-involved shootings that at the very least would not have the appearance of being biased in favor of the police in these types of situations. As I’ve written before — here and here — however one structures it, this would seem to be an idea worth exploring. As we’ve seen so many times over the years, and especially in the wake of the events in Ferguson, prosecutors don’t seem to be very well situated when it comes to investigating their own and the public doesn’t seem to trust the system as it exists today. Getting rid of the appearance of impropriety would, at least to some degree, help to restore some confidence that cases involving police shootings would be fully and fairly investigated without worries that the prosecutor is putting their thumb on the scale for the police.
This isn’t necessarily the end of the road for the Tamir Rice case, of course. Administrative action by the Cleveland Police Department could lead to the officers involved being disciplined or losing their jobs, for example. Additionally, the Rice family still has a civil claim against the city and the officers involved regarding Tamir’s death. Finally, the Federal Government is apparently still investigating this shooting to see if civil rights charges would be appropriate. In order to make such charges, of course, U.S. Attorneys would have to have evidence of some sort of racial bias involved in the shooting, and that’s not an easy burden to meet. Additionally, the fact that a Grand Jury has found that there was no evidence to justify charges would undoubtedly be a huge part of the defense in any such Federal case. Regardless of what happens, though, it seems clear that the Rice case points out that there continue to be problems in the manner in which the police interact with the civilian community, especially African-Americans. Until that larger issues addressed, it’s unlikely that Americans, especially members of minority groups, will have much confidence that they are being treated fairly by the justice system.
Here are the originally released and extended videos, so the reader can judge for themselves:
And here’s the report prepared by the prosecutor based on the evidence presented to the Grand Jury:
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