Debate Forum: 10/20

April 10, 2015 April 10, 2015

What is reasonable?

By Tim Walker

On Nov. 22, 2014, 12-year-old Tamir Rice was playing with a pellet gun in a city park in Cleveland, Ohio when he was shot twice by police officer Timothy Loehmann, one of two officers who responded to a 911 call which alerted officials to the young man’s actions. Rice died the following day. Last week two experts, in reports prepared for the Cuyahoga County Prosecutor, claimed that the shooting was “reasonable.”

In a written statement, county prosecutor Timothy McGinty stated, “These cases are, by their very nature, different than other matters that come to our office. They demand a higher level of public scrutiny as well as a careful evaluation of the officer’s conduct and whether, under law, those actions were reasonable under the circumstances.” S. Lamar Sims, a deputy district attorney from Denver, wrote one of the reports and concluded that Loehmann’s decision to shoot Rice as he approached the officers was “objectively reasonable.”

“There can be no doubt that Rice’s death was tragic and, indeed, when one considers his age, heartbreaking,” Sims wrote in his report. “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.”

Immediately after the shooting, a number of details came to light, details which when considered might influence a thinking person’s opinion on the shooting of the young man and whether or not it was “reasonable.” Tamir, a 5’ 7”, 195 lb. black juvenile, was playing in a park with a pellet gun which had been altered to make it appear more realistic. The observer who called 911 to alert police told dispatchers that a young man, “probably a juvenile”, was walking around a park and pointing the gun at people. Twice, the caller stressed to the 911 dispatcher that they believed the gun was “probably a fake” but this information, was not relayed to the responding officers. Later it came to light that Loehmann, a white rookie officer, had in his previous police officer position in Independence, Ohio been deemed “unfit for duty” due to a “lack of maturity.” Footage of the shooting, when released, showed the police cruiser pulling up at a high rate of speed then stopping, with the child shot almost immediately after the cruiser came to a stop. The responding officers did not administer first aid to the 12 year old, and he died in a hospital the next day.

The legal standard cited in the two reports, and referenced by the prosecutor, was defined by the United States Supreme Court in Graham v. Connor (1989), when the justices ruled that police use of force must be “objectively reasonable”—in other words, that a police officer’s actions must be seen to be reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation, and that another officer, if put in the same situation, would have reacted the same way.

Proponents of the reports say that none of us can put ourselves in a responding officer’s shoes. They say we do not have the experience, or the authority, to pass judgment on an officer’s actions when he feels his life may be in danger—especially when that officer is one of millions who are out there in our service, putting themselves in harm’s way, and keeping all of us safe from criminals on a daily basis. These men and women in blue deserve our unending support, not our criticism, they say. And many with authority conclude that yes, another officer would have reacted the same way if given the same culmination of circumstances—therefore yes, Loehmann’s actions were reasonable.

Opponents counter with arguments that our nation has become a police state, and that officially-sanctioned violence against unarmed citizens has become an epidemic. They cite occurrences in Ferguson, Baltimore and here in Beavercreek, where John Crawford was positioned with a toy rifle, which even had it been an actual rifle still would have been legal in the open-carry state of Ohio. They argue that police in these instances have created a pattern of shooting first, and then asking questions, only to find out that their targets were innocent and unarmed.

Does the standard for such shootings, the “objectively reasonable” legal definition, need to be examined, and redefined?

Tim Walker is 50 and a writer, DJ, and local musician. He lives with his wife and their 2 children in Dayton, where he enjoys pizza, jazz and black t-shirts. Reach him atTimWalker@DaytonCityPaper.com.

Police retort

By Ben Tomkins

If you’ve ever wondered why black people think the police screw them and protect their own, look no further than this report.

To determine how reasonable the shooting of Tamir Rice is, one need only read the official police investigation. It’s 224 pages, a large portion of which is transcripts of interjections like “Um, what do you mean?” so it’s a quick read line-for-line. As sad as the death of Tamir Rice is facially, it is made infinitely more so in light of the official police report, because it’s clear that the people writing can’t think their way out of a Glock chamber. I’ve never in my life seen a more obviously biased, flawed and blatantly incoherent piece of nonsense, and there’s a dead little boy and a mentally unstable officer still walking a beat.

There are a tremendous number of problems in the report.

The first issue I have is with camera 1. This is the infamous video shot of the police officer pulling up and blowing Tamir away in a few seconds. The evidence is indisputable, but the police report is very disputable. The point is made repeatedly that the officer believed Tamir Rice was reaching for the gun in his waistband and he had no choice but to shoot him. In the police report, the third page containing the incident summary—written by the internal affairs investigator—states “Video surveillance shows RICE [sic] pulling up his outer garment with both hands near the right side of his waist.”

Skip ahead to the analysis of camera 1 footage showing that the shooting occurred during the interval of 15:30:23 – 15:30:27 (five seconds). At 15:30:23, well over 100 pages in, the report states that “CDP marked unit 115A arrives, Tamir reaches into his right waistband. Timothy Loehmann exits the passenger side, draws and appears to point his firearm in the direction of Tamir.”

Well. You don’t have to be a genius to spot what’s wrong here. The entire case rests on whether it was reasonable for Loehmann to feel his life was threatened. Either he pulled his shirt up with both hands, or he reached into his waistband, and it’s not both. I will stress this is the same report. Also, Loehmann does not “appear” to point his weapon at Rice. He shoots at him.

Regarding his mental health, Loehmann was fired a few months earlier from another department for having a mental breakdown on the gun range…

Moving ahead. There are several interviews that are included as verbatim transcripts, a majority of which are summarized. The very first report is a full transcript with a total idiot. The whole thrust of this interview is that this individual heard there had been a shooting, got on Facebook, and said there was a profile picture of Tamir Rice holding two guns that was subsequently taken down.

What the hell does this have to do with the incident? I’ll tell you: character assassination.

This is followed shortly thereafter by a transcript of the FBI officer who was one of the first on the scene about three minutes after the shooting and administered first aid. He says that when he got there the three guys on the scene were standing around doing nothing to help Tamir, who was laying there bleeding out. The first thing he did is start packing Tamir’s intestines back into his body.

I used to work with several former CPD police officers at a part-time job when I was in Cleveland, and one of them had the following to say about shooting someone: “If you shoot a guy, make sure he’s dead. The stack of paperwork is only a third as high, and they only get your side of the story.” This was a fairly casual statement.

Ah, and who’s the “third guy” above? Officer Cunningham was the first on the scene, and the reason is because he worked at the rec center as a security guard when he was off duty. He is never interviewed although the report says he was—twice. The only information we have from his interviews is a statement that Tamir’s sister wasn’t clotheslined by officer Garmback per camera 1. She “slipped on the wet grass as he—officer Loehmann, according to Cunningham—put his arm out to stop her.”

Cunningham is also mentioned as being approached by no fewer than eight still “unidentified males” at the rec center who apparently saw the shooting and came running over to get him. How do we know this? Because two other cameras clearly show it. CPD never bothered to follow up. The eight kids who are on camera attend the rec center regularly. Again, Cunningham’s interviews are absent.

What we do know is that, according to the report, Cunningham was interviewed on April 8. On April 9, there is a communication between one of the investigators and Loehmann’s sergeant that is entirely redacted. These are two of four total pages redacted in a 224 page report.

I have 900 words and this is the tip of the iceberg. I will be publishing my full analysis on my blog, but suffice it to say, I read the entire 654 page Michael Brown grand jury transcripts and this report makes it look like a Richard Feynman paper. If you’ve ever wondered why black people think the police screw them and protect their own, look no further than this report.

Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

Reasonable force

By Don Hurst

Was Cleveland Police Officer Timothy Loehmann’s shooting of Tamir Rice reasonable? On the surface, the police killing a 12-year-old boy playing with a pellet gun in a park does not sound like something that can be justified. Yet legal experts are calling the shooting reasonable. Federal case law makes it clear that an officer’s actions are judged by the totality of the circumstances. Given the same context and same available information, if other reasonable officers would make similar choices then courts would deem the officer’s action lawful.

Critics of Loehmann argue that the shooting is unjust because of other incidents in Ferguson, Baltimore, Beavercreek and elsewhere. Loehmann could not influence either of those events so he cannot be judged by what another police officer does. Disregarding other recent officer-involved shootings, detractors believe the unique facts in this case condemn Loehmann. The gun being a fake, Rice’s young age, the speed at which the shooting occurred and Loehmann’s tactics all add up to an unlawful act. These are all valid concerns, but do not stand up to the totality of the circumstance.

First, let us discuss the airsoft pellet gun that Rice possessed. The boy who lent the toy to Rice stated that the orange safety tip had been broken off and that Rice needed to be careful because it looked like a real gun. An older teenage friend of Rice’s believed it was real even during a close inspection. It was only after Rice showed her the green BBs that she discovered the gun was a toy. She warned Rice to be careful and “don’t do nothing stupid.” The witness who called 911 to report Rice stated that he had watched the boy play with an “all black gun” for about 20 minutes and that he was scared that Rice was going to shoot him in the back. When he called 911 he reported that this gun was probably fake, but that “it scared the shit out of him.” After the shooting a police detective saw the gun and initially believed it was a Colt 1911 pistol. It wasn’t until the detective saw the green BBs that he could determine the gun was a fake.

Non-police witnesses on the scene believed that the gun was real. Witnesses with expert knowledge of weapons believed the gun was real. In the heat of the moment it is unreasonable to expect Loehmann not to fear that Rice carried a real pistol.

Should the fact that Rice was 12 years old have deterred Loehmann from believing his life was in danger? Unfortunately we live in a society where 12-year-old children commit murder. Also at the time of the shooting Tamir Rice did not appear to be 12 years old. His friends stated the he was large for his age but still did not “look older than sixteen.” The 911 caller describes him as “probably a juvenile,” but that information did not reach Loehmann. Officers on the scene initially speculated that Rice was around 20 years old. The medical examiner’s report lists his weight as 195 pounds.

Perhaps more time and better tactics would have helped Loehmann figure out that the gun was fake and that Rice was only a child. Surveillance footage shows that only 10 seconds elapse from the time Loehmann’s marked patrol car arrives at the gazebo to the time Loehmann shoots Rice. That isn’t a lot of time, and critics deserve an explanation. First, despite how Hollywood portrays gunfights, toe to toe battles are measured in seconds. They happen fast, and are usually finished before anyone knows what happened. The video shows that Rice moves his hands to his waistband where the gun is located. Once that happens there is no more time to assess, a reasonable officer will take that shot.

If Loehmann’s partner had not driven right up to Rice, then the added distance may have given him more time to assess. However, distance works both ways. Without additional officers to block routes of escape, distance can work against law enforcement. A school and a recreation center border Cudell Park. The shooting occurred around 3:30 in the afternoon. The consequences of allowing an armed suspect to flee into such target rich environments is not acceptable for obvious reasons. Police radio transcripts show that all other officers were tied up on different calls. Loehmann’s only other cover was traveling from too great of a distance. With no backup units to create an effective perimeter, closing the distance on the suspect was a sound tactical choice.

The totality of the circumstances is that witnesses reported that a 195-pound male was aiming an “all-black gun” at people and cars for about 20 minutes in a park that shares a border with a school and a recreation center. The responding officers had no immediately available backup. When officers arrived the male had the gun tucked in his pants. The male stepped closer to the officers and his hands moved towards the gun. Faced with what most officers would describe as an immediate threat, Officer Loehmann shot Rice. With the information available at the time of the event the use of force meets the federal “reasonable officer” standard. The shooting is tragic and heartbreaking. Tamir Rice did not deserve to die, but Officer Loehmann also did not deserve to be faced with this impossible decision.

Don Hurst is a combat vet and a former police officer. He now lives in Dayton where he writes novels and plays. Reach DCP freelance writer Don Hurst at DonHurst@DaytonCityPaper.com.

 

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Tim Walker is 51 and a writer, DJ, and local musician. He lives with his wife and their two children in Dayton, where he enjoys pizza, jazz, and black T-shirts. Reach DCP freelance writer Tim Walker at TimWalker@DaytonCityPaper.com

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