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.
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.
Sounds pretty bad, right?
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.
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:
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