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Two Independent Reviews: Shooting of Tamir Rice “Reasonable”

Two Independent Reviews: Shooting of Tamir Rice “Reasonable”

Retired FBI Agent and sitting Denver Deputy DA conclude OH officers were justified

Two independent reviews of the 2014 shooting of Tamir Rice have concluded that the officers responsible acted appropriately under the circumstances–a conclusion we shared with Legal Insurrection readers four months ago.

The Narrative:

Back in November 2014 Cleveland police officer Timothy Loehmann (who is white) shot and killed Tamir Rice, a black 12-year-old, in a city park.

tamir-rice-326e772c09b920c4

Tamir Rice: 12 years old, 5′ 7″ tall, 195 lbs

Sounds pretty bad, right?

The Reality:

Loehmann confronted Rice–who stood 5′ 7″ tall and whose 195 pounds is the weight of an average adult male–because of 911 calls reporting that Rice was walking around the park pointing a gun at pedestrians. When police pulled up to Rice in their patrol vehicle, Rice reached for the gun–later determined to be a non-deadly pellet gun with its orange “non-gun” markings removed–in his waistband.

It was at that point that Loehmann shot him, resulting in Rice’s demise.

A detailed break down of these events, including surveillance video of Tamir threatening pedestrians and his ultimate confrontation with police, can be found in our earlier blog post, VIDEO: Shooting of Tamir Rice by Police Goes to Grand Jury.

Following the shooting a six-month-long investigation was undertaken by police.  Their conclusion?  The evidence did not warrant charges against Loehmann.

The Narrative, however, is an awesome Narrative, and does not die easily.  Area activists quickly found a local judge who was willing to use an obscure Ohio rule to levy charges against both Loehmann and his partner, Officer Garmback, who merely drove the patrol car.

That judge, Cleveland Municipal Court Judge Ronald B. Adrine was well known as an activist himself, have self-identified as such in his own official court profile:

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

Judge-Ronald-B.-Adrine (1)

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 merely drove the car, Judge Adrine found probable cause for negligent homicide and dereliction of duty.

We covered these events in a follow-up blog post this past June, Cleveland Tries Out Baltimore Justice, Ignores Facts in Tamir Rice Shooting.  

Now two independent reports have been released, and both have concluded that the shooting of Tamir Rice by Officer Loehmann (and, by extension, the mere driving by Officer Garmback) were reasonable and justified under the circumstances.  Both reports are embedded at the bottom of this post, as is an in-depth report of the crime scene by the Ohio State Highway Patrol, and the official Tamir Rice autopsy report.

REPORT: Kim Crawford, FBI, Supervisory Special Agent (Retired)

I’ll just present some key quotes from SSA Crawford’s report, as the full report is embedded below:

[T]hose sitting in judgment of an officer’s use of force must view the relevant facts from the perspective of the law enforcement officer on the scene. … In light of the foregoing, the only relevant facts are those possessed by Officer Loehmann at the moment he fired his weapon. At that time, Officer Loehmann was aware that a 911 caller had reported a man in the park with a gun that he kept pulling from his pants. When he arrived on the scene, Officer Loehmann observed an individual matching the description provided by the 911 caller reach to his right side near his waist and pull up his jacket. Officer Loehmann, who had exited his vehicle, was within 7 feet of the individual and without cover when he made the decision to use deadly force.

When the concepts of threat identification and action versus reaction are applied to the relevant facts of this case, it becomes apparent that not only was Officer Loehmann required to make a split-second decision, but also that his response was a reasonable one.

Waiting to see if Rice came out with a firearm would be contrary to action versus reaction training. Considering Officer Loehmann’s close proximity to Rice and lack of cover, the need to react quickly was imperative. Delaying the use of force until Officer Loehmann could confirm Rice’s intentions would not be considered a safe alternative under the circumstances.

There is some dispute regarding whether Officer Loehmann issued any warnings before he discharged his weapon. While the issuance of warnings (or the lack thereof) may be considered during a policy or tactical review, it is insignificant to this constitutional review. The Fourth Amendment permits the use of deadly force in two situations: when it is reasonably necessary to (1) protect oneself or others from the imminent threat of death or serious physical injury, or (2) prevent the escape of a dangerous person. Warnings would never be required in the first (defense of self and others) category.

A common misconception often voiced loudly after a lethal law enforcement shooting is that there was no need to kill the subject, the police could have shot him in the arm or the leg. … The quickest, most efficient and practical way for a law enforcement officer to forcibly bring about a timely halt to threatening actions is to deprive the subject’s brain of the oxygen necessary to continue conscious action. Because oxygen is carried to the brain by blood, law enforcement officers are trained to aim for center mass where most of the blood-bearing organs are located. Attempts to incapacitate by shooting a subject in the arm or leg are not only impractical, they are contrary to universal law enforcement training.

CONCLUSION. Based on the proceeding discussion, and in light of my training and experience, it is my conclusion that Officer Loehmann’s use of deadly force falls within the realm of reasonableness under the dictates of the Fourth Amendment.

REPORT: S. Lamar Sims, Denver Senior Chief Deputy District Attorney

Again, I’ll just present some key quotes from DDA Sims’ report, as the full report is embedded below:

FACTS. The investigation appears to be complete and thorough. For purposes of my analyses, there are four separate areas to consider: I) the statements of witnesses regarding Tamir Rice’s activities in the hours and minutes before the shooting; 2) the information provided to Officer Loehmann, 1231, and his partner Officer Frank Garmback, 1582, before and as they responded to the scene; 3) the shooting incident itself; and 4) relevant observations of first responders who arrived immediately after the shooting.

The legal issues in this investigation center around self-defense and reasonableness of the use of deadly force by a police officer.

The Ohio court[s] have reaffirmed that, in deadly force encounters, [Tennessee v.] Garner stands for the principle that a peace officer acts reasonably in using deadly force when the officer has a reasonable belief that the suspect poses a threat of serious physical harm or death to the officers or to others.

Determining whether Officer Loehmann’s actions were objectively reasonable requires a careful analysis of the circumstances surrounding the officers’ attempt to contact Rice with particular emphasis on the facts known to Officer Loehmann at the time and such reasonable inferences as may be drawn from those facts.

I am mindful that this case has resulted in great controversy, much of it stemming from three facts: 1), Rice’s age; 2), the fact Rice was armed with an airsoft pistol; and 3), the short time between the officers’ arrival on scene and the shots fired.

Neither Rice’s age nor the nature of his weapon were known to the responding officers. However, the statements of the witnesses compel the conclusion a reasonable officer responding to the call would have believed Rice was an older teen or young adult. Rice was 5’7 and 195 lbs. When Officer Garmack made the shots fired call, he told the dispatcher, Male down. Urn, black male, maybe 20 [years old].

The gun Rice possessed was not, in fact, a functioning firearm. That Loehmann perceived it to be a real gun was, in retrospect, erroneous. However, searches and seizures based on mistakes of fact can be reasonable. … The limit is that ‘mistakes must be those of reasonable men.’ … The issue is, in short, could a reasonable police officer have believed Rice’s gun was a real firearm. The answer must clearly be answered in the affirmative.

Concerns about the interval between the officers’ arrival at the gazebo and the firing of the shots are, essentially, an inquiry into the officers’ tactics. The police car, driven by Officer Garmback, drove up to and stopped within ten feet of Rice as he stood up and walked toward the car. … [I]t is critical to note that Officer Loehmaun, a trainee officer, was not in control of the police car. Officer Loehmann, in the passenger seat and closest to Rice when the patrol car stopped, was in a position of greater peril.

[CONCLUSION:] There can be no doubt that Rice’s death was tragic and, indeed, when one considers his age, heartbreaking. However, for all of the reasons discussed herein, I conclude that Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.

Grand Jury Proceedings Continue

Even as these two independent reviews conclude that the conduct of both Officers Loehmann and Garmback are released, the criminal charges against the officers remain with the Grand Jury.  Keep your eyes here at Legal Insurrection for continuing coverage of this matter as it proceeds.

Review, Highway Patrol, and Autopsy Reports, in Full

Here’s the Kimberly Crawford (FBI Supervisory Special Agent, Retired) report:

Here’s the S. Lamar Sims (Denver Senior Chief Deputy District Attorney) report:

Here’s the report of the “crime scene” by the Ohio State Highway Patrol:

Here’s the Tamir Rice autopsy report:

–-Andrew, @LawSelfDefense


Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
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Comments

Conservative Beaner | October 11, 2015 at 12:34 pm

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

Looks like Judge Adrine already has a bias against the two officers. The Judge and the black community don’t care about the facts, they want the two officers in prison.

You could have every major law enforcement agency call this a justifiable homicide and they would still push for prosecuting these two officers.

    I agree with a lot of your comment.

    But there is no more a “black community” than there is a white or Hispanic or Asian community. There’s just people.

      Frank G in reply to Ragspierre. | October 11, 2015 at 1:06 pm

      Is that right, now? Cuz that’s not what I hear every day from “Community Activists™”

        Ragspierre in reply to Frank G. | October 11, 2015 at 1:20 pm

        But that’s a lie. Are you ceding them that lie?

        Are you prepared to cede them the lie that TEA party people are “racists”, too?

          Gremlin1974 in reply to Ragspierre. | October 12, 2015 at 4:21 am

          I have said this for years, once we decide to become just Americans that is when racism will completely disappear. I also believe that most people these days hold that opinion and that racism is kept alive more by race pimps than actual racists.

          I love it when some form asks for “race” and gives you an “other” with a line to fill in, I check that one and fill in “Human”.

      forksdad in reply to Ragspierre. | October 11, 2015 at 1:27 pm

      Truly? There are not different communities with different values and different desires and expectations? There is not the desire for less police presence and more police in the other.

      You may wish there was only one community but it is simply not true. Get on the ground and work as a police or probation officer. You’ll see a world of difference between rural and urban to say nothing of between the races.

        Ragspierre in reply to forksdad. | October 11, 2015 at 1:44 pm

        Dude! I never said that there was ONE “community”. What I did say…and you reinforced…is that there are “communities”.

        And they aren’t determined by race. I knew white kids from inner-city Detroit when I was in the Army who were pure cultural thugs.

        I’ve also known black men who had a work ethic that was unbeatable, and who loved and respected women like paragons.

          forksdad in reply to Ragspierre. | October 12, 2015 at 3:03 am

          That’s not how America or the world works. There are definitely black communities, white communities, Indian rezes. People self segregate by race when it comes to where they live, shop, go to church, and each of these communities have different values. Different clothing styles, different ways of speaking and paralanguage. For goodness sakes the Army is all Green but the Army isn’t all of America or even a representative sample.

          Of course you know good people of all color but to say there’s no communities divided by race and ethnicity is purely fantasy. There are entire unassimilated Guatemalan communities in my town where you can hear no English spoken at all all day long. You won’t even hear Spanish. Just Mum and other native languages. You cannot say those are not separate. And their values are simply not mainstream American values. I have many friends in that community but American? No not even close.

          I wish America was one community or maybe communities divided by merely rural or urban differences, or differences in character all good men in one community and dirtbags in another. That’s not how the world works race makes up a huge factor in the communities’ differences. Like I said go work in a separate community. When that cop was shot near Fort Lewis. Dozens of people new where he was but not one turned him into the police. That is not unusual.

          You think communities made up of different races are a myth? I cannot imagine how anyone could come to that conclusion

      Estragon in reply to Ragspierre. | October 11, 2015 at 6:29 pm

      When over 90-95% of a group vote the same exact way for 50 or more years, we’ve identified a “community” for political purposes, at least.

      I used to believe like you. I wanted it to be true. Then I saw the reaction to the OJ verdict – not the verdict itself, which I fully expected, but the reaction among blacks across the country. Celebration that a black man who never gave a dime to civil right organizations or did anything for “the community” got away with murdering two innocent white people.

      Eye-opener. Confirmed one thousand times since, including the reelection of Obama despite the worst economic performance for black citizens since Hoover, the hero-worship of the likes of Trayvon Martin and Michael Brown, etc.

Criminals and their enablers really hate consequences or effective counter measures.

On another note an acquaintance had an airsoft gun with it’s orange off and left it at my house. After he ignored my calls to pick it up I threw it in the trash in two pieces. Those things at any distance look like guns if I were faced with one I would treat it like a real gun too.

“The Narrative, however, is an awesome Narrative, and does not die easily. ”

Social Justice Warriors never metanarrative they didn’t like.

The two reports adequately address the officers’ actions. However, let’s consider Rice’s actions as background.

“When police pulled up to Rice in their patrol vehicle, Rice reached for the gun–later determined to be a non-deadly pellet gun with its orange “non-gun” markings removed–in his waistband.”

IMO, the removal of the orange markers – a deliberate act – clearly indicates that Rice (or somebody) intended to use the gun to scare or intimidate people.

This case is done and dusted, and somebody needs to slap that “judge” upside the head and remind him that his job is to apply the law as written, not to legislate and activate from the bench.

    tom swift in reply to Rusty Bill. | October 12, 2015 at 12:31 pm

    clearly indicates that Rice (or somebody) intended to use the gun to scare or intimidate people.

    “Clearly”? Hardly. All it clearly indicates is that you can’t think of a less sinister motive.

    I’ve seen AirSoft guns with no conspicuous muzzle markings, all in circumstances which made me fairly confident that they were not removed or obscured with any intention to threaten or intimidate anyone.

    We can’t attribute a definite motive to Mr Rice—or to whoever it was who removed the orange tip—from the mere fact that the tip is now missing.

Char Char Binks | October 11, 2015 at 1:45 pm

The thug community grieves for little Tamir.

    JackRussellTerrierist in reply to Char Char Binks. | October 11, 2015 at 8:01 pm

    Let’s face some truths. Tamir wasn’t the brightest bulb in the pack. In fact, I doubt that he had any filaments in the first place. The age of 12 is certainly old enough to know not to wave around and point a real-looking gun at strangers in a public place. If Tamir was 7 or 8, it’d be different. But 12 is certainly old enough for a boy of average intelligence to know this is stupid and dangerous. His mother is just as dumb and Tamir apparently had no father or intelligent, non-thug male role model to guide his behavior and thinking. If Tamir was allowed to play with such a thing in public, thinkin’ he all bad ‘n shit, he was headed toward Gangbangerville anyway. If it hadn’t been a cop then, it would have been another banger or another cop in 4-8 years.

    Nobody this stupid with a penchant for guns is long for this world.

    What if Tamir got his hands on a real gun? What would he have done with it? It could be that the residents of his town are better off with him gone before he killed somebody than after.

      Char Char Binks in reply to JackRussellTerrierist. | October 11, 2015 at 8:37 pm

      Stupidity led to his death, true, but probably so did his bullying mentality. A 12-year-old that stupid and that big, brought up in a thug-centric home and neighborhood, was almost certainly a bully to his classmates, and to other children, and such behavior was probably mostly encouraged by his family and whatever other role models he had. Waving the gun at strangers was probably just an extension of his bullying ways, much like Michael “My Arms My Ammunition” Brown’s robbery and assault on a cop were the result of his 300-pound privilege.

The thug community (read: the Obama/Jarrett proxies) is on the march, and it’s coming for your freedom.

I don’t exactly see a ringing endorsement of a more senior officer driving the police vehicle coming to a stop and placing an armed trainee officer ten feet or less from a person believed to be a young man and believed to be armed with a deadly weapon.

I don’t think stopping 50 feet away would’ve been a good idea either, as a practical matter, since if there is a gunfight you want cops to actually hit the target, too. But, even if it’s not the trainee’s fault, per se, I think it’s legitimate to question the tactics. This in no way diminishes the lethal stupidity involved in having an unmarked pellet gun and drawing it on an armed police officer with a constitutional right to life.

    Ragspierre in reply to JBourque. | October 11, 2015 at 4:38 pm

    Good or bad tactics are one thing.

    Criminality is quite another.

    I mentioned when the vid first came out that…if I were the training officer for this department…it would scare the living spit out of me. It should serve that purpose for LEOs all over the nation.

    Stan25 in reply to JBourque. | October 11, 2015 at 5:04 pm

    Pellet guns are just as lethal as a .45 ACP if it hits in the right spot.

      Char Char Binks in reply to Stan25. | October 11, 2015 at 8:49 pm

      That’s possible, but death from a pellet gun is highly unlikely, I think. You do bring up a very good point, though; Rice didn’t have a FAKE gun, or a TOY gun, as so many SJWs claim. He had a REAL PELLET GUN, one that looked enough like a Colt semiautomatic to fool an on-scene detective. I’d like to see any of Loehmann’s BLM critics make a split-second choice between getting shot by a realistic pellet gun and Colt .45. The winner gets a pellet in the face at 400 ft/s.

        Gremlin1974 in reply to Char Char Binks. | October 12, 2015 at 4:26 am

        It was an “Airsoft” gun, pretty much zero chance of being lethal. Now that being said “Airsoft” guns also tend to look more realistic than most CO2 Pellet pistols.

        The photos which have appeared online of the “gun” in question do appear to show an AirSoft gun. It does not have the orange muzzle marking, but naturally there’s no clue as to who removed it.

        AirSoft “guns” are specifically designed to be fired at people without inflicting injury.

        Pellet “guns” fire a little chunk of lead. The higher-velocity ones are not uncommonly used to kill small animals.

          Char Char Binks in reply to tom swift. | October 12, 2015 at 3:30 pm

          They’re still guns, quotation marks or not.

          Gremlin1974 in reply to tom swift. | October 12, 2015 at 4:22 pm

          I seem to remember reading an article just after the shooting that said that Rice had gotten the gun from a friend and that the friend had removed the orange barrel tip. Now whether that is the actual case or not, I can’t speculate.

    forksdad in reply to JBourque. | October 12, 2015 at 3:16 am

    I’ve been in similar circumstances. Shot at several times knives pulled on me etc. where I did not return fire for various reasons. However, none of those reasons were the safety of the suspect. When I started there wasn’t even pepper spray just mace and most places didn’t allow many to carry that it was toxic.

    If a guy was shooting at you from a crowd of children or with kids as a backdrop you have to make a choice. I couldn’t return fire in that case so we maneuvered to get cover and a better shot then when he couldn’t hide behind kids anymore he surrendered.

    This kid would be alive if he weren’t threatening people with a gun. If it looks like a gun it is a gun for the purpose of threatening people.

    I think it is a terrible thing for the officer to have to go through but made much worse by the judge. I’ve known judges like him. I’m not surprised by his animosity towards police.

    Gremlin1974 in reply to JBourque. | October 12, 2015 at 4:29 am

    I agree, the reason the officer had no time to react is because the driver got to close, now I would bet he didn’t actually mean to get that close.

      tom swift in reply to Gremlin1974. | October 12, 2015 at 12:20 pm

      That is a bit weird.

      The car stopped at a distance which would be appropriate if the person in the passenger seat was intending to roll down the window for a verbal exchange with someone on the bench under the gazebo.

      Perhaps that’s all the driver was expecting.

The media put out the narrative that poor Tamir was another cute 12 year old Trayvon Martin and most of the American public bought it. They failed in getting a conviction in the Trayvon Martin case, so they will do anything to see that never happens again. They did the same with Michael Brown.

MouseTheLuckyDog | October 11, 2015 at 5:08 pm

I would disagree with one aspect of Agent Crawford’s report.

To say that you shoot for center mass to deny oxygen to the brain implies that you are shooting with the intent to kill, since anything you do to cut off oxygen to the brain is not likely reversible fast enough for the person to live.

You shoot for center mass because you are more likely to hit the person if you shoot for center mass.

Rather than vilify police officers for an utterly reasonable response to a tragic situation, where is the breathless vilification of Rice’s absent and/or indifferent and/or incompetent and/or jailed parents, a phenomenon that is all-too-common with respect to countless wayward, unaccountable and embittered black youth, including Leftist sociopaths-turned-saints Trayvon Martin and Michael Brown? Why is there no indictment of the total absence of parental supervision and involvment that allowed Rice to procur a “toy” replica pistol

Char Char Binks | October 11, 2015 at 8:26 pm

Another scumhole judge who needs to be disbarred.

Thanks as always, Andrew. Good to hear from you, its been a while. I think folks have stopped shooting each other cause they are afraid you will start writing about them, lol.

    Thanks for the kind words. I’ve just been a busy little bumble-bee. 🙂

    My posting here will likely pick up as Baltimore cops trials start next month, depending on whether the State and courts ever release any facts worth writing about.

    –Andrew, @LawSelfDefense

As a career police officer and detective, now retired, I have a few problems with this whole deal. I didn’t know the kid was 5-7 and 197, that does make a difference.

However, this case and the case in California, where the kid had a AK47 toy rifle and a deputy killed him for it, expose a problem with today’s policing. They are far too aggressive. Instead of taking the time to asses the situation from a distance- gathering facts- they rush in.

In this case, the driver screwed up royally by putting his marginally talented and troubled rookie ten feet in front of the shooter. What was the purpose of that? It CREATED the shooting.

Had they pulled up fifty yards away, took out their PA (as we were taught) and from cover- tell the kid to put the gun down and step back, everybody would be alive. Sure the kid could have run, but then it’s a chase, something the police are good at.

But by driving up on the kid, believing him to be armed with a deadly weapon and putting the officer within range of that deadly weapon is the fault of the police. Kids being stupid aren’t death sentences.

In California, the call comes in, the “Gunsite instructor” deputy drives up. Now the kid is thought to have an AK47- that has a 300 meter lethal range. So the deputy drives up on the kids at twenty five feet, jumps out and when the kid doesn’t do exactly what the deputy commanded, he kills the kid.

The problem with that is the deputy CONCLUDED the weapon was real, did not take in the possibiity and reality there are replica guns out there (not every kid is out of Columbine!) and killed the kid by putting himself well within range of the rifle.

I would have taken a position where the kid could see me, have another unit behind him with a long gun, and make contact from a distance. Make sure the kid knows what I want him to do. He starts blasting away the support officer kills him. He puts it down and everybody goes home safe.

Which is the goal of the police.

    jcarter50 in reply to archer52. | October 13, 2015 at 1:40 pm

    Exactly. And that’s one of the considerations mentioned in the recent report by the Police Executive Research Forum (PERF), an organization made up of chiefs of police and other law enforcement executives from around the country, which concluded that law enforcement training in de-escalation of situations such as this is woefully inadequate. To your point, the report says that one major component of all after-action investigations should be to determine whether the officers created the exigency leading to the use of force.

    And that’s what stories and reports like this continue to miss: One of the major themes by the Black Lives Matter campaign and the related concerns about policing is not whether the officers were legally justified in using deadly force. If that’s the only consideration, then reports such as these are the end of the discussion. The concern is whether some or all of these could have been avoided by the police in the first place and whether or not officers should have a duty to avoid them whenever it is possible to do so when doing so is reasonably consistent with their own safety, the safety of the public, and the goals of law enforcement. The PERF report, “Re-Engineering Training On Police Use of Force”, is a first step in imposing that duty on officers in a training-and-discipline manner and if that doesn’t do the trick then it is certainly possible to statutorily add that duty as a consideration in determining whether use of force is legally justified even though, as both of the reports mentioned here say, it is not currently part of that analysis.

I’m not surprised. The grand jury will not indict Loehman because he’s a white cop who killed a black person. This is SOP for America.

Ahh, more wisdom from Mom’s basement.

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