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
abdomen.
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.
I wish that we could add to policemen one simple aspect of the rules of engagement that I was under in a combat zone- positive identification. Before I could fire, I had to positively identify the weapon. It is not unreasonable to tell a police officer that if he perceives a threat, he may draw his weapon and aim it, but that he must wait until he actually sees the weapon in hand before he fires. Some will say that this places the officer at to much risk, but the reality of these situations is that the drawing and aiming the weapon takes the longest. Once the weapon is aimed, it only takes a split second to fire. No living individual is capable of drawing a weapon and firing it in less time than someone can pull a trigger on a weapon aimed at him.
Bill Lewinski would disagree. That’s why the cops pay Lewinski the big bucks.
The cops view everyone as if they are Bob Munden and capable of drawing, aiming, fanning their cowboy six-shooters, and then re-holstering in style faster then their itchy fingers can pull the trigger. Dead cops dropping left and right while their fast-draw world-champion perp strolls away, guns still smoking.
This is what the Bill Lewinskis of the world teach cops to fear:
https://www.youtube.com/watch?v=r7HN7THecwg
(Sorry for breaking the rules to respond to a comment better suited to 11 months ago)
Bob, Bob, Bob, you and your reasonableness.
Uh, Bill?
I’m not trained in the law nor law enforcement. I’m just a retired schmuck who has a logical mind and a sense of reasoned compassion, empathy even. I see training as the issue. Bill Robelen touches on this in his comment. Law enforcement must take a long hard look at both training and the psychological make of those they hire. Until then, their reputation to protect and serve is off the table; they are simply viewed by many as the real thugs in the equation.
I’m sure you have “a logical mind and a sense of reasoned compassion, empathy even,” but it would be nice if comments had something specifically to do with the post. Really, really nice.
OK, point taken. What proposed solution to a “reasonable murder” are we to explore? Are we to sit in our comfortable homes in our leafy, livable neighborhoods and accept the fact that militarized law enforcement agencies marginalize those they are to protect and serve? It seems case law gives LE carte blanche to act however they please, with the expanded brotherhood in support. Perhaps some brilliant attorney can convince a jury, or a judge, that LE isn’t necessarily always the good guy. How does society demand reasonableness in a Tamir Rice scenario?
I take back what I said about your having “a logical mind and a sense of reasoned compassion, empathy even,” and now banish you to reddit.
Since you’re a legal eagle and all, can you reply to my comment with a solution to intransigent problems that have plagued humanity for millenia? Something that I can do from my chair? And also, can you make it something that will be done by dinner, as my football game is on tonight. TIA
One word. Plastic.
This is an amazing power you have. Could you banish a couple of my co-workers to reddit?
No.
Is there a reddit banishment time frame?…or is it forever?
Actually, it was over at 7:30 pm today. Welcome back.
Oh dammitall. Unless I’ve totally misunderstood the whole argument, it should be simple (and it even happens over here). Try the case as murder, and if the facts speak for exoneration, then that’s how it should work. Perceptions should not count for a damn.
The law is cold hearted. Feelz are excluded. That’s why I want a lawyer’s heart for my transplant.
Bugger feelz. This is privilege.
I don’t know the facts of this case, but of course an objective analysis would only consider facts that were known or knowable to the accused. And of course it would consider any unique perspective the actor claims led to the decision to use force. If you think, as I do, that investigations of officer involved shootings frequently abandon the question of what a reasonable person would do and instead grasp at any justification they can find, that’s a different issue. This post comes off like you’re arguing that cops shouldn’t defend themselves without your affirmative consent to be shot at.
My disappointment at every piece of your comment is manifest. First rule of thumb: If you have to start by saying you don’t know the facts, then stop, learn the facts, and write nothing until you do. This is so you aren’t the stupidest person in the room.
Second rule of thumb, rather than perpetuate your being the stupidest person in the room, figure out why something that seems obvious to you, in your abject ignorance, doesn’t seem obvious to anyone else. Is everyone else, who knows what this is all about, wrong, but you, the stupidest person in the room, is right?
Third rule of thumb, rather than confirm to all watchers that you are, without a doubt, the stupidest person in the room, consider the harm of keeping your stupid to yourself. Would it be a terrible thing if no one but you realized that you were the stupidest person in the room? No. It would not.
Bullshit. Firstly, this is the internet. My abject arrogance is all I have. More to the point, if someone gets killed by the lawful use of deadly force in self defense, and the killer is cleared of wrongdoing, the law was followed. If someone is murdered in cold blood, and the murderer is cleared of wrongdoing, somebody is doing their job wrong. Because it’s illegal for cops to murder people in cold blood. I don’t need to personally investigate every case to know how it’s supposed to work. If I was defending Loehmann, I’d need to know the facts of his case, and if his excuse amounted to claiming magical cop powers of mind reading and future telling, I’d have to call bullshit. But objective analysis of the reasonableness of his actions would not require a God’s eye view on his part.
How did you go from abject ignorance to having to “personally investigate every case.” Yes, SJ is on the internet, but no, it is not the internet. I have standards. Even you (despite that fact that I like you) have to have a clue before you get to clog my tube with nonsense. My house, my rules. I can’t banish you to reddit since reddit already banished you.
As for objective analysis, there seems to be a huge part of this post you neglected to read as well. Hint: just because the word “objective” is used doesn’t mean it’s objective. But don’t feel bad, a lot of smart people struggle with understanding Graham v. Connor. It’s a hard case to grasp.
I don’t read Graham v. Connor as requiring absolute deference to any extra sensory perception a cop claims to have. Because that would be stupid, and Supreme Court Justices aren’t stupid.
But now that I’ve seen the video, I don’t think Loehmann’s magic cop powers are even implicated. There’s enough on tape to make the case that he decided to shoot before they got there. I don’t see that as a correct application of Graham. I think it’s a case of cops and prosecutors not doing their job.
Now I’m proud of you again. As for the discussion of what happened, that discussion was had 11 months ago (see the first link in the post) and it won’t be revisited, even if you weren’t around then. You might want to cruise through the comments there now, really catch up, then beg me to pull down your earlier comments before anyone else sees them. I would consider it, because I like you.
No, leave ’em up. I stand behind everything I’ve said. If that means Mort still doesn’t like me, that’s fine. He’s an asshole, and I don’t like him either.
What does Mort’s being an asshole have to do with your not liking him? You’re an asshole, and I like you.
I did not intend to imply that causal connection. I meant that I prefer to be disliked by Mort, because he isn’t anything but an asshole. Also I don’t like him. I apologize for the ambiguity.
I like Mort too.
You’re really doing yourself a disservice here.
All decisions by anyone are made with only the information they have available. It isn’t strange or illogical to judge any person’s actions based on the information they have at the time they engage in those actions. This part of your lament rings hollow due to this.
The issue here is the training and it’s assumptions, the mentality, and that lying is entirely acceptable. The video clearly shows no attempt at a peaceful resolution to the perceived issue. The fact that the supposed job of the police is made easier by reasonable community interaction and good relations is not evident at all in their training nor in the actions on video. It seems the intent was always to kill a ‘bad guy’ as simplistic and childish as that thought process may be to adults.
The fact that all of these things conspire to create a system where police can murder in cold blood and be relatively sure they will face no penalty other than a few weeks of paid vacation is itself the issue – not the standard by which their actions are considered legally (which is the standard anyone’s actions are considered legally – the information known to the actor at the time). In short you focus too much on a non-special consideration of police action when instead you should be focusing on the special considerations they receive say qualified immunity.
You might want to re-read the post. You’ve missed all nuance.
I don’t see any nuance in your post sorry to say. It reads as a direct critique and it would be odd if one part of a critique were to be done satirically as it would weaken the strength of the overall critique.
It was clear that you didn’t see any nuance. I can only explain it to you. I can’t understand it for you.
Arrogance is not a replacement for a decency in a reply.
I now understand you cannot take criticism.
Have a good day.
Heh. It’s always curious when someone shows up for their first comment and thinks he’s got such an overwhelmingly brilliant point that any response other than “you are so right and I will change everything because of you” means I can’t take criticism. After all, Dunning-Kruger demands no less.
As for your narcissistic need to announce that I can’t take criticism and you’re leaving, that’s invariably the way butthurt children exit. You’re kinda the poster boy of a typical narcissistic asshole. But then, that was entirely your choice.
Good thing you only gave your first name, having reduced yourself to a banal joke. You will be terribly missed.
What never ceases to amaze me is how predictable these fragile narcissists are. Don’t rub their tummy and they whine like bitches, then announce how they’re leaving as if anybody gave a fuck that they were here at all.
And back into the shithole of nothingness they go. Every time. Like clockwork.
The funniest part is that they have no clue. Each flaming narcissist thinks he’s come up with this idea as if it’s not what every narcissist does. Too funny.
Tell me I’m correct in assuming that this butthurt baby is not Ken White. Please tell me I’m correct.
Yes, you are correct. Ken White’s wattle sensitivities aside, this was most assuredly not the same Ken.
Then you are indeed rich, for you have it in abundance…
LOL…
I like all three of you, & but only because you’re assholes..
Well, thanks for clearing that up for us esteemed one… Now how about putting the folded newspaper hat on your head while whipping out your crystal ball and tell us about the gravy that is now going to go on top of all this candy?
Will Timothy J. McGinty, the prosecutor from Cuyahoga County, feature these reports first, last, both first and last, or not at all when he solicits the grand jury to assistance him with his attempts to finally tie a bow on this pile of steaming reasonable?
I don’t know Timothy but if I was Timothy, I wouldn’t believe everything I read. Which everyone knows is what a reasonable man would do.
So, what’s it going to be Timothy? Are you reasonable man? Don’t tell anyone but that reasonable thing is basically your job. You up for the task or are you a coward we can reasonably expect to go hide under his bed and pray that no one will notice that you didn’t have the stones to even face reasonable?
It’s basic really…
McGinty couldn’t possibly begin to do what you’re asking. He has to consider the future employment prospects of Crawford and Sims, and it’s his job to take the sting out of questions like “Aren’t you one of the co-authors of the paper that said it was perfectly OK for a policeman to shoot Tamir Rice in cold blood?”
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Not that it would be politically simple, but should there be a statute governing lethal force by law enforcement?
This was about whether there was a violation of Tamir’s constitutional rights. There is law governing lethal force for everyone, cops included. It’s called murder.
Is there any way around this bad SCOTUS decision? A report you linked to at one point said most of Europe has explicit statutes about when police can use lethal force?
My last question. p
The US and Europe have very different legal systems. It’s not that we couldn’t pass a law, but that we won’t because there is little political interest in doing so. The only way around Graham is for SCOTUS to change it. It’s a horrible decision, but there has been no sign that they get it.
Hmm. Do these reports mention the fact that Ohio’s an open-carry state, so even if Tamir had been a 20-year-old with a real handgun like the police alleged, it would’ve been completely friggin’ legal?
*checks*
Silly me.
The outrage just wouldn’t have been the same if it had been an armed 35 year old standing in the middle of a park and waving his (real) rifle around.
A lot of legal things will get you killed, and there’s a high probability on that one, and even though you and I can agree that even in that scenario the cops should talk first and shoot later, they wouldn’t need to spin it nearly as hard or as long as they have to spin this one.
So, police are specially conditioned so that we should reasonably expect them to react to subtle body language by middle-schoolers with immediate lethal force. Also, it’s reasonable for them to shoot anybody who might be carrying a gun, despite that being presumptively legal in Ohio.
If we accept all that, the question then becomes: why do we allow such people to walk free among us, and armed to boot?
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