Before he announced the grand jury’s decision regarding the Cleveland police officer who shot and killed 12-year-old Tamir Rice, Cuyahoga County prosecutor Timothy McGinty warned that the outcome “will not cheer anyone.” He got that right.
The grand jury would not be indicting officers Timothy Loehmann and Frank Garmback. Loehmann claimed he had no choice but to fire at Rice after he saw the lad pull a gun from his belt that turned out to be only a realistic-looking pellet gun.
“It would be irresponsible and unreasonable if the law required a police officer to wait and see if the gun was real,” McGinty said, as he delivered a report that explained what the law demands of police officers who must make split-second decisions when they fear for their lives.
The ruling came as a shock to many folks like me who repeatedly have watched security camera video footage of the tragedy. The video, which is silent, shows a police squad car roar up to a screeching halt in front of Rice, who is standing alone in a public park. Loehmann immediately jumps out of the passenger side and without apparent hesitation fires the shots that kill the boy.
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Loehmann claimed the tape, which has no sound, failed to pick up the sound of his yelling at the lad to drop his weapon. Still, Rice’s family wasn’t buying it. “It has been clear for months,” the family said Monday through their attorneys, that McGinty the prosecutor “was abusing and manipulating the grand jury process to orchestrate a vote against indictment.”
The Department of Justice, which has been conducting its own investigation of systemic problems in the Cleveland cop shop, has sounded skeptical, too. They wrote last December that they found it “deeply troubling” that some of the city’s special investigators of deadly force by officers “admitted to us that they conduct their investigations with the goal of casting the accused officer in the most positive light possible.”
The grand jury’s decision also raises unsettling questions about another high-profile case: Chicago police officer Jason Van Dyke, recently charged with murder in the killing of Laquan McDonald, 17, more than a year ago. Video was crucial in that case, too. After officers at the scene reported that McDonald had lunged at Van Dyke with a knife, a police dash-cam video shows McDonald moving away from Van Dyke.
But now, after the Tamir Rice decision, I find myself wondering whether clear video evidence is enough to bring justice. Van Dyke’s lawyer Daniel Herbert began raising questions immediately after his client’s arrest. “The video is clear, but there is a lot of stuff that the video doesn’t show,” Herbert told WGN-TV.
Van Dyke, charged with first-degree murder, entered a not guilty plea at his arraignment Tuesday morning. Sounds like Van Dyke’s trial is about to present us with yet another new narrative to challenge what we think we have seen. Stay tuned.
McGinty made similar arguments and cited the Supreme Court’s important 1989 Graham v. Connor decision. It held that an officer’s use-of-force decisions “must be judged from the perspective of a reasonable officer, rather than with the 20/20 vision of hindsight.”
That’s fair when it avoids judging an officer’s actions based on information he or she did not have. But too often that fair and “reasonable” standard is used to avoid any obligation to take a more cautious, less deadly course of action.
What’s “reasonable” in such circumstances? That can depend on what state you’re in. Instead of bringing national clarity to that question, legal experts say, the Supreme Court has tended to give police the benefit of the doubt and let contradictory lower court decisions stand.
As recently as November, for example, the Supremes issued an unsigned summary decision that granted immunity to a Texas officer who shot and killed a fleeing motorist, even though the officer lacked specific orders to open fire.
“By sanctioning a ‘shoot first, think later’ approach to policing,” Justice Sonya Sotomayor wrote in her lone dissent, “the court renders the protections of the Fourth Amendment hollow.”
Indeed, a shoot-first-think-later policy also erodes public confidence in the police, which reduces their cooperation with police, and law enforcement suffers in communities that need it most. That’s why modern police training emphasizes “de-escalation,” an effort to avoid violence instead of causing it.