It appears that black activists in Detroit are so impressed with how Prosecutor Marilyn Mosby is doing in Baltimore that they’ve adopted the same strategy in Cleveland, based on reports by Cleveland.com.

Exactly a week ago we provided an update on the case of Tamir Rice, a black 14-year-old who was shot and killed by Cleveland police officers responding to a man-with-a-gun call:  VIDEO: Shooting of Tamir Rice by Police Goes to Grand Jury.”

Residents had called 911 because Tamir was walking around a public park with an apparent gun and pointing it at people.  When police responded to the scene, Rice immediately reached for the “gun” in his waistband and was killed by police gun fire.

All that happened back in November 2014, and just last week the police finally wrapped up their investigation. The conclusion?  The evidence did not warrant charges against the one officer who actually fired shots, Officer Timothy Loehmann.  Further, if there was not sufficient evidence to charge the Loehman there would certainly not be sufficient evidence to charge to second officer, Frank Garmback, who had merely driven the patrol car.

This certainly seems consistent with the actual video evidence available (embedded below the fold), as covered at length in our previous post on the subject but re-embedded here for your convenience:

Indeed, the surveillance video (below the fold, and annotated by the author) clearly shows Rice openly handling an apparent pistol (seemingly spinning it on his finger cowboy-style at the 1:20 mark), placing and removing it from his waistband (e.g., at 2:00 mark), and even apparently pointing the gun-like object at passersby. There are at least 10 occasions captured by the grainy footage of the surveillance video in which Rice is openly displaying the apparent gun in some fashion.  To an actual observer at the scene, the handling of the gun would have been far more apparent.

When police pulled up to his location, they say Rice immediately reached for the apparent gun in his waistband (highlighted in the photo below, and seen at the 7:27 mark in the video), and they engaged him with defensive fire.

Anyone with any legal experience or even just common sense having seen that video would know that the prospects of getting even an indictment, much less a conviction, on Officer Loehmann was slim, and this was buttressed by the investigators coming to the same conclusion after 6 months of effort.

And that’s in a state, indeed the only state, in which a defensive use of force must be proved by the defender by a preponderance of the evidence rather than disproved by the prosecution beyond a reasonable doubt.

To a group of community activists, that could not stand.  Accordingly, using an obscure Ohio rule that allows anyone claiming “knowledge of the facts” of a case to request a judge to find probable cause of a crime, they did just that.

And in the person of Cleveland Municipal Court Judge Ronald B. Adrine the find a man happy to oblige.

This afternoon Judge Adrine claimed in a court order to have found probable cause for a whole raft of charges against both officers.  Judge Adrine describes himself in explicitly activist terms, stating in his official court profile:

I ran for judge in protest, after experiencing how poorly many people were treated in the court system.

Cleveland Municipal Court Judge Ronald B. Adrine

Cleveland Municipal Court Judge Ronald B. Adrine

In the case of Officer Loehmann, who fired the fatal shots, Judge Adrine found probable cause for charges of murder, involuntary manslaughter, negligent homicide, and dereliction of duty.

In the case of Officer Garmback, who you will remember merely drove the car, Judge Adrine found probable cause for negligent homicide and dereliction of duty.

And what was the “knowledge of the facts” claimed by the petitioners for these charges? Nothing more than the surveillance video embedded above. Period.

Anybody out there still want to become a police officer? Anybody?

In fact, this all appears to be little more than political theater, changing nothing substantively.  Judge Adrine himself notes that in his “Judgement Entry”:

At the beginning of this review the court is mindful that despite any conclusions it draws form the evidence found in the affidavits [of people whose “knowledge of the facts” was limited to the surveillance tape–AFB], its role here is advisory in nature. The actual issuance of misdemeanor complaints by the City of Cleveland, following the court’s review, may be based upon the court’s determination that such charges should issue. That decision is completely within the discretion of the City’s prosecuting authority.

The City Prosecutor may also decide to issue felony complaints in the Cleveland Municipal Court based upon his acceptance of the court’s determination that there is probable cause to believe certain accusations found in the affidavits posited against these Patrol Officers. However, those felony charges and perhaps some, or all of the misdemeanor charges must ultimately be delivered to the Cuyahoga County Prosecuting Attorney and, will then be subject to his [sic] discretion, and resolved in the Cuyahoga County Court of Common Pleas.

Resort to this [obscure Ohio–AFB] statute does not provide an “end around” either the City or the County Prosecutor.  [ . . . ] That statutory schema does not, however, provide the court the ability to require that its determination be substituted for the discretion of either the City or the County Prosecuting authorities.

[ . . . ]

In point of fact, close examination of the applicable statues [sic] and criminal rules reveals that the trial court does not have the option of unilaterally issuing a warrant on its own initiative in these private citizen initiated cases.

Here’s the “Judgement Entry” in full:

The matter thus remains  under the auspices of the prosecutor in whose hands the case had been placed last week now that the police investigation was over.

And then it is likely still the grand jury’s decision as to whether the officers should face any charges whatever, and if so what those charges should be.

I’m not sufficiently familiar with Ohio law to know if felony charges can be based upon a mere affirmation, as was done in the case of George Zimmerman in Florida, in order to bypass the Grand Jury entirely. (OH criminal defense lawyers, please stand up.)

It doesn’t take the keenest eyesight to see the parallels between the conduct here of Judge Adrine finding probable cause for this plethora of charges at the behest of a group of dissatisfied community activists where the police investigation had found grounds for none, and the conduct of Baltimore Marilyn Mosby in bringing her plethora of charges against the six officers associated with Freddie Gray’s death in order to placate a burning, looting mob ravaging the city.

Both acts reek of the foulest political theater, sacrificing due process and presumption of innocence for personal political satisfaction.

But, heck, it’s not like I had plans to go to either Cleveland or Baltimore any time in the near future. Or ever.

–-Andrew, @LawSelfDefense


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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.