As mentioned in my prior post, Cleveland Police Officer Michael Brelo, who is white, has been found not guilty of all charges in the shooting deaths of Timothy Russell and Malissa Williams, both black. The shooting followed reports of shots fired at police from Russell’s vehicle, upon which Russell, with Williams as passenger, lead 62 (sixty-two!) police cars on a 22-mile, 100-mph pursuit through the city of Cleveland. (Below is video of the Judge’s closing rationale–it’s ~35 minutes long, for a text summary see my notes below.)
Ultimately the chase ended in a school parking lot outside the Cleveland city limits, with Russell using his vehicle as a battering ram against the police cruisers. Faced with this imminent threat of death or grave bodily harm, the 13 officers on scene fired 137 rounds at the vehicle over a 20 second period, mortality wounding Russell and Williams.
Of the 137 rounds fired over those 20 seconds, all parties agreed that the first 122 bullets fired, and all the bullets fired during the first 12 seconds, were legally justified.
The only legal dispute was over the last 15 bullets fired by Brelo during the last 8 seconds, during which Brelo was standing on the hood of Russell’s vehicle and firing through the windshield. (Notably, during these last 8 seconds other officers were also still firing into Russell’s vehicle.)
Brelo was charged with two counts of voluntary manslaughter, and two counts of the lesser included offense of felonious assault.
As a bench trial, Judge John P. O’Connell was the finder-of-fact rather than a jury. Remarkably, prior to announcing his verdict this morning the Judge spent over an hour stepping through all of the evidence of the case, and then explaining how he applied the law to this evidence to arrive at his verdict.
My notes below the horizontal line were taken as the Judge presented the latter part of this discussion to the court. I claim them to be as generally accurate as diligent note-taking can make them, but I do not claim them to be verbatim or completely without error.
Officer Belo was charged with Count 1, voluntary manslaughter of Timothy Russell, and Count 2, voluntary manslaughter of Malissa Williams.
For each of these counts, the Judge found that they had not been proven beyond a reasonable doubt.
The reason is that both Russell and Williams had received fatal shots from other officers, whose shots had been deemed lawful. Thus, even though at least some of Brelo’s shots certainly caused mortal injury, it cannot be said that Brelo was responsible beyond a reasonable doubt for their actual deaths because Russell and Williams would have died from the other officers’s lawfully fired bullets even absent Brelo’s fatal shots.
Having found that the State had failed to prove Brelo guilty beyond a reasonable doubt on the manslaughter charges, however, we are still left with the lesser included charges of felonious assault.
Although Russell and Williams would have died regardless from other officers’ shots, the Judge found that they each still alive–even if already mortally wounded–when Brelo fired at least some of his shots into them, thus forming a basis for felonious assault.
Indeed, Judge O’Connell explicitly found that the State had proven beyond a reasonable doubt that Brelo was guilty of felonious assault. Brelo was thus found not guilty on the two voluntary manslaughter charges.
Nevertheless, this does not end the matter, because Brelo has raised the affirmative defense of justification (e.g., self-defense).
In Ohio (indeed, only in Ohio), the affirmative defense of justification must be proven by the defense by a preponderance of the evidence. If this is done, however, the defendant is excused from criminal sanction for what would otherwise have been a crime.
Thus if Brelo could prove justification by a preponderance of the evidence in the context of the felonious assault, he would be found not guilty of those charges despite the fact that the State had otherwise proven those charges beyond a reasonable doubt.
Judge O’Connell then began to step through law governing justification in Ohio.
Apprehension of a suspect by the use of deadly force is a seizure under the 4th Amendment of the US Constitution. Evaluating the reasonableness of this seizure requires considering the totality of the circumstances, in the light and facts of the circumstances.
In the face of an imminent threat of serious physical harm to the officer or others, it is not constitutionally unreasonable to effect a seizure by the use of deadly force.
An objectively reasonable perception of this threat of death or grave bodily harm is the minimal requirement before deadly force may be used.
Reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with 20:20 hindsight.
The calculus must take into account the fact that police are forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.
So the question is did Brelo have an objectively reasonable fear that Russell’s car represented a threat of death or grave bodily harm to the officers or to others.
Brelo was aware that there were reports that someone in the vehicle had “popped off a round” at police, that the drive (Russell) was angry and pointing a gun out the window, reports that the driver had a gun, reports that the driver was pointing a firearm, reports that Williams (the passenger) was possibly loading a weapon.
Brelo was also aware of the length in distance and time of the chase. He knew that many other police cars besides his own were in pursuit, but Russell still would not stop. Brelo knew Russell had gone over 100mph, and had ignored dozens of traffic controls. All of this would have made him wonder why people in the car were so desperate to escape.
Brelo had been led through parts of Cleveland unfamiliar to him, and the chase ended in a separate city altogether.
The parking lot where the chase ended was in a dusty, dirty area where a driver could only see the car in front of him.
Brelo heard radio calls that shots were fired, and another radio call that there was no way out of the parking lot.
When Brelo stopped his patrol car, Russell was barreling at him with his own vehicle, ultimately smashing into the patrol car beside Brelo’s.
Brelo thought he saw guns in the suspects’ hands, and then gun fire erupted.
Brelo perceived an imminent threat of death or grave bodily harm to himself and other officers, and he decided to use deadly force to seize the occupants, Russel and Williams.
This same decision, Judge O’Connell emphasized, was made by all of the other 12 officers on the scene.
Judge O’Connell found by a preponderance of the evidence that Brelo’s decision to use deadly force on Russell and Williams was based on probable cause that they presented a serious risk of death or grave bodily harm to the officers and others. This use of deadly force by Brelo was constitutionally reasonable.
Indeed, this decision was reasonable despite the fact that we now know that there was no gun in the car, and that Russell and Williams were not the origin of the gun shots fired.
Reasonableness must be evaluated for objective reasonableness based on the information the officer had when the conduct occurred. If the perceptions were objectively reasonable then his use of force was not unconstitutional, even if it turns out he was mistaken.
Judge O’Connell’s conclusion that Brelo was justified in initial use of deadly force should come as no surprise, as it was the same conclusion arrived at by the State’s own use-of-force expert.
The only real dispute between the defense and prosecution is whether Brelo’s proper decision to use deadly force continued throughout the entire of the shots firing or stopped 8 seconds before he stopped shooting when he mounted the car’s hood and continued firing.
The State’s use of force expert witness Catsaris (phonetic spelling) testified that many of the other officers on scene who were shooting in this same time period reasonably a threat justifying their multiple shots at Russell and Williams. This belief was reasonably held, in the expert’s opinion, regardless of these officer’s tactical mistakes.
So, Judge O’Connell asks, where was it that Brelo was supposed to have run afoul of the US Constitution’s 4th Amendment? The claim was that he did so by going on the hood of his own patrol car, then the patrol car (#238) into which Russell had rammed his own vehicle, then onto the hood of Russell’s vehicle.
The State’s expert’s rationale for this conduct violating the 4th Amendment was that Brelo was taking action for which he was not trained by the police department, which is not recognized by that department, and which was not safe either for himself or the other officers present.
Judge O’Connell noted that Catsaris (sp?) repeatedly based his criticisms of Brelo’s action on the basis that it was contrary to training, and not on the basis of the harm that resulted to Russell and Williams from those actions.
Asked if it would have been reasonable for Brelo to continue firing at Russell and Williams had he stayed behind cover (as many of the other officers on scene did actually do), Catsaris testified that in his opinion such conduct would have been reasonable.
So Catsaris’s opinion was based not on Brelo’s perception of the threat of death or grave bodily harm being unreasonable, but only on the tactical actions he took to stop the threat were reasonable. Catsaris focused on the location from which the shots were fired, not on the firing of the shots themselves.
Those known facts are first that the car was still running, and under Brelo’s observation the occupants were still moving. Up until that point the chase had taken place over 22 miles of driveways, parking lots, roads, and highways, and Russell had shown no intention of giving up. Russell had just rammed patrol car #238, but his car was not so wedged by #238 that his vehicle could not still be used as a weapon.
During the last 8 seconds in question, at least three other officers were not convinced that the deadly threat was over, as we know from the fact that these three were also still firing at Russel and Williams.
Brelo was in a strange place at night, surrounded by gunfire, sirens, flashing lights, and both Brelo and officer Moore had fired through their own windshields at Russell and Williams because they believed they were about to be shot and killed.
Brelo did not fire too quickly or at someone who appeared to be unarmed, he did not fire at someone who was walking or running away.
An adversarial trial has proved over the centuries to be an effective way to find the truth. If the ideal way is to step into Brelo’s shoes and see those 8 seconds the way he did, it’s not the artificial environment of the court room. Still, that is what the law requires.
Judge O’Connell explicitly rejected the claim that within 12 seconds it was presently patent that a reasonable police officer in Brelo’s position would have decided that the threat had stopped, and therefore Brelo’s entire use of force was an objectively reasonable response to the reasonably perceived threat of death or great bodily harm.
In conclusion, Judge O’Connell found that the State did not prove beyond a reasonable doubt that Brelo had knowingly caused the death of Russell and Williams because they failed to prove the necessary causation, so Brelo is not guilty on counts 1 and 2 [both charges of involuntary manslaughter].
The state did prove beyond a reasonable doubt the lesser included charges of felonious assault, that the defendant did knowingly cause serious bodily harm, but the defendant in turn proved by a preponderance of the evidence that he was legally excused from liability for those harms because he was constitutionally privileged to use deadly force to respond to an objectively reasonably perceived threat of death or grave bodily harm.
Judge O’Connell thus found Brelo not guilty of the lesser included offenses of felonious harm.
Brelo was then discharged from the court’s custody.
–-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.
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