It’s been 11 months since 12-year-old Tamir Rice was shot and killed by Police Officer Timothy Loehmann. After the inexplicably long “investigation” period, Cuyahoga County prosecutor finally released two reports on the killing. They did so yesterday, a Saturday, the day when news gets released to die in silence.
The conclusion was foregone: The murder was reasonable.
The county prosecutor hired two “outsiders,” meaning they weren’t connected to the Cleveland Police Department. But as outsiders go, they were as inside as it gets. There was the report of retired FBI agent Kimberly A. Crawford. And there was the report of S. Lamar Sims, a Colorado prosecutor. Both arrived at the only conclusion they could, given their mandate.
“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.”
It’s not that the death wasn’t “tragic,” which is as useless a characterization as telling a parent that their brain-damage child is “lovely.” It was the law.
The only constitutional provision at issue when law enforcement officers seize an
individual by using deadly force is the first clause of the Fourth Amendment that provides:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated…”
It is significant that the Fourth Amendment does not require a law enforcement officer to be right when conducting a seizure. Rather, the standard is one of objective reasonableness. In Graham v. Connor, 490 S.Ct. 386 (1989), the Supreme Court of the United States held that the determination of the reasonableness of an officer’s decision to use force must be made from the perspective of an officer on the scene. The Court noted that “officers are often forced to make split-second judgements-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.”
The Supreme Court’s exposition of the line between a righteous shoot and murder is one that easily confuses the uninitiated. Graham v. Connor would appear to require that the officer’s actions be judged on the basis of “objective reasonableness.” Objectivity sounds good, until one realizes what it means when it involves a cop.
The practical effect of the Supreme Court’s decision in Graham v. Connor and other federal court cases, is that those 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. Accordingly, the relevant facts are those facts, and only those facts, that were available to the officer at the time the decision to use force was made. After acquired information cannot be used to determine the validity of an officer’s actions. Moreover, because the perspective must be that of the law enforcement officer on the scene, it is extremely important to look at those relevant facts through the eyes of an officer trained to recognize and react to a threat.
This is where “objectivity” gets twisted, as it’s not the reasonable person’s idea of objectivity, but the reasonable cop’s. And yet, not even the reasonable cop, but the reasonable cop as seen through the eyes of the shooter. And so the word “objectivity” may be in there, but it’s as subjective as it gets.
Furthermore, the Court concluded that the issue must be viewed “from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight…”
The investigative reports made clear that they would not “Monday morning quarterback” the split-second decision made by Loehmann to kill Tamir Rice, which begs the question of why they bothered to investigate at all. All facts that preceded Loehmann’s leaping from the car and opening fire almost immediately were ignored, except to the extent they gave him cause to kill. Because that’s what it looked like through Loehmann’s eyes. And that’s all the law requires.
Video surveillance at the park shows Officer Loehmann exiting the vehicle as the individual suspected to be armed reaches toward his right side waist and lifts his jacket. Within one to two seconds of exiting the vehicle, Officer Loehmann fired his weapon twice from a distance of 4.5 to 7 feet, striking the individual in the
Poor decisions were made beforehand? They’re not on the table. That the senior officer, Frank Garmback, would have been wiser not to drive right up to Rice may be true, but that wasn’t how it happened. That the dispatcher was told Rice was a child and the gun may not be real was never relayed to Loehmann, so he didn’t know. The only question was what did Loehmann know and see at that instant. The test wasn’t whether there were a million options that wouldn’t have resulted in Rice’s death, but whether there was any way the killing could be justified.
By eliminating from consideration any bit of information that didn’t support the murder of Tamir Rice, you end up with a report that says killing him was reasonable. By applying caselaw that bends over backward to preclude any view that wasn’t the killer’s, there can be only one objectively reasonable conclusion.
Yet, it still doesn’t end there, because no one untrained in the secret tricks of law enforcement has the eye with which to judge whether the actions of a cop were reasonable:
The Supreme Court of the United States previously recognized the significance of law enforcement training by noting “…when used by trained law enforcement officers, objective facts, meaningless to the untrained, [may permit] inferences and deductions that might well elude an untrained person.”
You don’t see it? I don’t see it? We don’t count. We’re not trained to see what a cop’s eye sees.
Law enforcement officers are trained to recognize that any confrontation with a person harboring a malicious intent may pose a significant threat if, left unchecked, they are able to kill or incapacitate the officer and gain access to the officer’s weapon. Because officers cannot be expected to read the minds of individuals and determine intent, they are instead trained to scrutinized [sic] individuals’ behavior for telltale signs. An individual’s actions are often the only signals of their intent.
And then there is the First Rule of Policing.
If an officer waits to be certain that the individual reaching into a high-risk area is retrieving a weapon, action versus reaction dictates that the weapon could easily be used against the officer before he or she has an opportunity to respond.
If a cop waits to know whether there is a threat, if he’s reactive, he could be hurt. An officer is trained to make sure he makes it home for dinner, even if that means a 12-year-old boy doesn’t for no good reason. The law doesn’t concern itself with whether Tamir Rice’s murder was needless, as long as the cop’s life was protected from any potential hint of threat, real or perceived.
Even so, there was one stumbling block that Sims and Crawford were constrained to fudge, that in the one to two seconds between Loehmann jumping out of the car and leaving a dead boy on the ground, there was no shout of “freeze” or “hands up.” There was no order with which Tamir Rice refused to comply.
While it’s possible, if we shut our eyes tightly, to believe that this boy might be reaching for a real gun, at least in Loehmann’s mind since ignorance of facts always gives a cop the widest possible latitude to kill, it’s just as possible that he was going to give up the gun to Loehmann, or show him it was only a toy, or scratch his waist, or he wasn’t reaching for a gun at all.
But that’s 20/20 hindsight, and the Supreme Court has cautioned that the law doesn’t judge a cop’s actions based on facts, accuracy or reality. Those would be objective factors, the sort of considerations that non-cops might think valuable, but only because they lack the training of a police officer to kill at the slightest hint of fear.
The Cuyhoga Prosecutor’s Office has announced that, despite these reports that took their investigators 11 months to complete, and would have taken anyone else about an hour, it’s “not reaching any conclusions.” As if the conclusion wasn’t foregone that this may have been a “tragedy,” but was a basically reasonable killing.