Two outside reviews suggested the Cleveland police shooting of Tamir Rice, a black 12-year-old boy, was justified, the New York Times reported.
Rice was throwing snowballs and playing with a toy pellet gun in a Cleveland park on November 22 when a police car rolled into the snowy field. Within two seconds of getting out of his squad car, officer Timothy Loehmann shot and killed the 12-year-old. The officer has claimed he thought the pellet gun was a real firearm.
Related Why police so often see unarmed black men as threats
On October 10, officials released two independent investigations from a Colorado prosecutor and an FBI supervisory agent that concluded that the shooting was justified, arguing that any reasonable officer placed in the same scenario could have concluded deadly force was necessary. But this is based on a very loose legal standard: The question is not whether the situation could have been avoided, but rather if it was reasonable for Loehmann to perceive a threat once the squad car parked right in front of Rice and saw the boy with a gun that officers thought was an actual firearm.
But critics, including Rice's family, have blasted the reports, arguing that it's absurd that an officer would have to resort to force within two seconds of detecting someone with a toy gun — especially in a state where it's legal to openly carry real guns. They argue the situation could have been handled more calmly and carefully — perhaps by parking the car in another location and approaching Rice more slowly. From this point of view, the argument isn't so much whether Loehmann's actions were legally justified once he was right in front of Rice, but whether the scenario could have been avoided with better tactics, training, and protocol.
Whether Loehmann was in the right will be a matter of legal and public debate in the next few months and perhaps years. Cuyahoga County Prosecutor Tim McGinty will present evidence on the case to a grand jury. The jurors will then decide whether to file charges against Loehmann and his partner, Frank Garmback, who drove the squad car during the shooting.
The Rice shooting has garnered widespread attention, elevated by the Black Lives Matter movement that has protested racial disparities in law enforcement's use of force following the police shooting of Michael Brown in Ferguson, Missouri. With tensions already high in Cleveland, the outcome of the grand jury hearings — and future trials, should the officers involved be indicted — could decide whether the situation escalates as it did in Ferguson or Baltimore following the death of Freddie Gray while in police custody.
Cleveland Police officer shot Rice within seconds of arriving at the scene
Loehmann shot Rice within two seconds of getting out of his patrol car, according to surveillance video obtained by Cleveland.com's Cory Shaffer. He then stumbled back and fell, reportedly hurting his leg and ankle. Loehmann's partner, Garmback, remained at the wheel of the car.
Warning: Graphic footage of the shooting and its aftermath:
According to documents from the Cuyahoga County Sheriff's Department, it's unclear whether Loehmann shouted any warnings before opening fire. Loehmann claimed that Rice grabbed the pellet gun, which he thought was an actual firearm, forcing him to shoot.
"He gave me no choice," Loehmann told another officer moments after the shooting. "He reached for the gun and there was nothing I could do."
Garmback quickly reported the shooting to dispatch and requested emergency personnel respond to the scene. But the officers — neither of whom reportedly had first aid kits or training — then stood around without applying first aid for about four minutes until after Rice was shot. It wasn't until an FBI agent, who is a trained paramedic, walked into the scene that Rice received first aid.
The FBI agent described Loehmann and Garmback as almost shell-shocked — wanting to do something but not knowing what to do.
Rice acknowledged the FBI agent, showing signs of life as the agent tried to tend to the boy's wounds without any medical tools. "He turned over and acknowledged and looked at me, and he like reached for my hand," the agent said, later adding that Rice said his name and mumbled something about the pellet gun.
The video also shows Rice's sister running to the scene, reportedly to check on her wounded brother. The officers confronted the 14-year-old girl, wrestled her to the ground, and restrained her in the police car.
Paramedics arrived a few minutes later. They eventually took Rice to the hospital, where he died on November 23.
Police initially estimated Rice was around 20 years old
The FBI agent at the scene, Loehmann, and Garmback thought Rice —who was 5 feet 7 inches and 195 pounds — was an older teenager or in his 20s. "Shots fired, male down, black male, maybe 20," said the officer who called in the shooting, according to BuzzFeed's Mike Hayes.
RelatedHow systemic racism entangles all police officers — even black cops
It's not uncommon for police to overestimate the age and size of black boys. Various studies have found that the general public and police tend to see them as less innocent and older. For police officers, this can result in overestimating them as a threat.
A 911 caller warned the airsoft gun was "probably fake"
BB gun Cleveland police said a 12yo boy pulled from his waistband before they shot him. http://t.co/UeLXI01nEH pic.twitter.com/J4Sc1pdP36
— Cory Shaffer (@cory_shaffer) November 23, 2014
Rice had in his waistband an pellet gun with the orange safety indicator removed, and officers said he clutched the gun when they arrived. Officers did not know the weapon was a toy at the time of the shooting, according to police.
The friend who loaned Rice the gun reportedly told him to be careful with it since it looked real, according to the Cuyahoga County Sheriff's Department's investigation into the shooting. The friend had apparently taken the gun apart to fix it, and couldn't reattach the orange safety indicator that indicates the gun is fake.
Police arrived on the scene after receiving at least one 911 call. A caller told 911 dispatchers that a "juvenile" is "pulling a gun in and out of his pants and pointing it at people." He later added, "It's probably fake."
But the 911 dispatcher never relayed to Loehmann and Garmback that the caller thought Rice was a juvenile or that the gun was probably fake. She refused an interview with the Cuyahoga County Sheriff's Department to explain why she didn't provide that information to the officers.
The two officers involved in the shooting refused to be interviewed by the sheriff's office
The Cuyahoga County Sheriff's Department noted in its investigation that the officers involved in the Rice shooting refused to be interviewed. But they talked to Cleveland Police internal affairs and homicide investigators the day of the shooting, before the sheriff's department took over the investigation in January, according to the Los Angeles Times's James Queally.
Other law enforcement officers who cooperated with the sheriff's department said that Loehmann was distraught after the shooting — when he learned that Rice was much younger than he first thought and wasn't carrying a real firearm. Police insisted the pellet gun looked real.
The officer who shot Rice was judged unfit for duty by a suburban police department in 2012
Loehmann began working at the Cleveland police department in March, but he previously worked for six months at a small suburban police department in Ohio. Loehmann resigned after a report deemed him unfit for duty, in part because he couldn't properly handle a firearm.
The Guardian's Tom McCarthy reported:
A police officer who shot a 12-year-old dead in a Cleveland park late last month had been judged unfit for police service two years earlier by a small suburban force where he worked for six months, according to records released on Wednesday.
Officer Timothy Loehmann, who killed Tamir Rice on 22 November, was specifically faulted for breaking down emotionally while handling a live gun. During a training episode at a firing range, Loehmann was reported to be "distracted and weepy" and incommunicative. "His handgun performance was dismal," deputy chief Jim Polak of the Independence, Ohio, police department wrote in an internal memo.
The memo concludes with a recommendation that Loehmann be "released from the employment of the City of Independence". Less than a week later, on 3 December 2012, Loehmann resigned.
Other records reported by Cleveland.com's Andrew Tobias showed Loehmann failed the written entrance exam for the Cuyahoga County Sheriff's Department. He also reportedly failed to get hired at police departments in Akron, Euclid, and Parma Heights.
City officials said they weren't aware of Loehmann's troubled history at other police departments when they hired him.
A federal investigation found Cleveland police are poorly trained and inappropriately violent
A Department of Justice investigation, which didn't look at the Rice shooting, found Cleveland police officers used excessive deadly force, including shootings and head strikes with impact weapons; unnecessary, excessive, and retaliatory force, including Tasers, chemical sprays, and their fists; and excessive force against people with mental illness or in crisis, including one situation in which officers were called exclusively to check up on someone's well-being.
Police officers also used "poor and dangerous tactics" that often put them "in situations where avoidable force becomes inevitable and places officers and civilians at unnecessary risk," according to the report.
The Justice Department attributed many of these problems to inadequate training and supervision. "Supervisors tolerate this behavior and, in some cases, endorse it," the report said. "Officers report that they receive little supervision, guidance, and support from the Division, essentially leaving them to determine for themselves how to perform their difficult and dangerous jobs."
Former US Attorney General Eric Holder, who headed the Justice Department at the time of the investigation, argued that fixing these issues is crucial for both the general public and police. "Accountability and legitimacy are essential for communities to trust their police departments, and for there to be genuine collaboration between police and the citizens they serve," he said.
Black people are much more likely to be killed by police than their white peers
An analysis of the available FBI data by Vox's Dara Lind shows that US police kill black people at disproportionate rates: they accounted for 31 percent of police shooting victims in 2012, even though they made up just 13 percent of the US population. Although the data is incomplete, since it's based on voluntary reports from police agencies around the country, it highlights the vast disparities in how police use force.
Black teens were 21 times as likely as white teens to be shot and killed by police between 2010 and 2012, according to a ProPublica analysis of the FBI data. ProPublica's Ryan Gabrielson, Ryann Grochowski Jones, and Eric Sagara reported: "One way of appreciating that stark disparity, ProPublica's analysis shows, is to calculate how many more whites over those three years would have had to have been killed for them to have been at equal risk. The number is jarring — 185, more than one per week."
The disparities appear to be even starker for unarmed suspects, according to an analysis of 2015 police killings by the Guardian. Minorities made up about 37.4 percent of the general population and 46.6 percent of armed and unarmed victims, but they made up 62.7 percent of unarmed people killed by police.
There were several high-profile police killings in the past year involving black suspects. In Baltimore, six police officers were indicted for 28 criminal charges for the death of Freddie Gray while in police custody. In North Charleston, South Carolina, Michael Slager was charged with murder and fired from the police department after shooting Walter Scott, who was fleeing and unarmed at the time. In Ferguson, Darren Wilson killed unarmed 18-year-old Michael Brown. In New York City, NYPD officer Daniel Pantaleo killed Eric Garner by putting the unarmed 43-year-old black man in a chokehold.
The Baltimore protests erupted after Freddie Gray's mysterious death
Police only have to reasonably perceive a threat to justify shooting
Legally, what most matters in these shootings is whether police officers reasonably believed that their lives were in danger, not whether the shooting victim actually posed a threat.
In the 1980s, a pair of Supreme Court decisions — Tennessee vs. Garner and Graham v. Connor — set up a framework for determining when deadly force by cops is reasonable.
Constitutionally, "police officers are allowed to shoot under two circumstances," David Klinger, a University of Missouri-St. Louis professor who studies use of force, told Vox's Dara Lind. The first circumstance is "to protect their life or the life of another innocent party" — what departments call the "defense-of-life" standard. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect poses a dangerous threat to others.
The logic behind the second circumstance, Klinger said, comes from a Supreme Court decision called Tennessee vs. Garner. That case involved a pair of police officers who shot a 15-year-old boy as he fled from a burglary. (He'd stolen $10 and a purse from a house.) The court ruled that cops couldn't shoot every felon who tried to escape. But, as Klinger said, "they basically say that the job of a cop is to protect people from violence, and if you've got a violent person who's fleeing, you can shoot them to stop their flight."
The key to both of the legal standards — defense-of-life and fleeing a violent felony — is that it doesn't matter whether there is an actual threat when force is used. Instead, what matters is the officer's "objectively reasonable" belief that there is a threat.
That standard comes from the other Supreme Court case that guides use-of-force decisions: Graham v. Connor. This was a civil lawsuit brought by a man who'd survived his encounter with police officers, but who'd been treated roughly, had his face shoved into the hood of a car, and broken his foot — all while he was suffering a diabetic attack. The court didn't rule on whether the officers' treatment of him had been justified, but it did say that the officers couldn't justify their conduct just based on whether their intentions were good. They had to demonstrate that their actions were "objectively reasonable," given the circumstances and compared to what other police officers might do.
What's "objectively reasonable" changes as the circumstances change. "One can't just say, 'Because I could use deadly force ten seconds ago, that means I can use deadly force again now,'" Walter Katz, a California attorney who specializes in oversight of law enforcement agencies, said.
In general, officers are given lot of legal latitude to use force without fear of punishment. The intention behind these legal standards is to give police officers leeway to make split-second decisions to protect themselves and bystanders. And although critics argue that these legal standards give law enforcement a license to kill innocent or unarmed people, police officers say they are essential to their safety.
For some critics, the question isn't what's legally justified but rather what's preventable. "We have to get beyond what is legal and start focusing on what is preventable. Most are preventable," Ronald Davis, a former police chief who heads the Justice Department's Office of Community Oriented Policing Services, told the Washington Post. Police "need to stop chasing down suspects, hopping fences, and landing on top of someone with a gun," he added. "When they do that, they have no choice but to shoot."
Police rarely get prosecuted for shootings
Police are very rarely prosecuted for shootings — and not just because the law allows them wide latitude to use force on the job. Sometimes the investigations fall onto the same police department the officer is from, which creates major conflicts of interest. Other times the only available evidence comes from eyewitnesses, who may not be as trustworthy in the public eye as a police officer.
"There is a tendency to believe an officer over a civilian, in terms of credibility," David Rudovsky, a civil rights lawyer who co-wrote Prosecuting Misconduct: Law and Litigation, told Vox's Amanda Taub. "And when an officer is on trial, reasonable doubt has a lot of bite. A prosecutor needs a very strong case before a jury will say that somebody who we generally trust to protect us has so seriously crossed the line as to be subject to a conviction."
If police are charged, they're very rarely convicted. The National Police Misconduct Reporting Project analyzed 3,238 criminal cases against police officers from April 2009 through December 2010. They found that only 33 percent were convicted, and only 36 percent of officers who were convicted ended up serving prison sentences. Both of those are about half the rate at which members of the public are convicted or incarcerated.
The numbers suggest that it would be a truly rare situation if the officer who shot and killed Rice was charged and convicted of a crime. But without a conviction, it's likely tensions will remain high in Cleveland as Rice's family and others demand justice.
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