"A perfect storm of human error": Grand jury declines to indict Cleveland cops in fatal shooting of Tamir Rice

You must understand, the prosecutor said at today’s press conference, that the pellet gun Rice was carrying was no shiny silver Lone Ranger toy pistol with an orange tip. It was nearly indistinguishable from a real piece, especially from any sort of distance. Which is true:


It’s also true that the cops were never told what the police dispatcher heard when the 911 call came in about Rice, namely, that he was probably a kid and that his gun was “probably fake.” But the knock on the cops isn’t that they inexcusably mistook a gun that was obviously fake for a genuine weapon. The knock on them is that they rolled right up on Rice in their cruiser upon arriving at the park and had put a bullet in his belly within two seconds of confronting him, before they had made any reasonable attempt to gauge whether he was a true threat or not. Watch the second clip below in the unlikely event that you’ve never seen it before. When the Cleveland Plain-Dealer asked three police experts last year whether the cops’ tactics were sound, the response was unanimous.

“The tactics were very poor,” said David Thomas, senior research fellow for the Police Foundation. “If the driver would have stopped a distance away so that the primary officer wasn’t right there to get involved in shooting, it may have played out differently.”

Hubert Williams, 30-year police veteran and former president of the Police Foundation, said Garmback should not have pulled the police car so close to where Tamir was standing if they believed he was armed — as they were told by a 9-1-1 dispatcher.

By doing so, Garmback put Loehmann in a more vulnerable position to be shot by Tamir, in turn making it more likely that he would fire his own gun in self-defense, Williams said

Thomas Aveni, executive director of the Police Policy Studies Council, a research-based consultation corporation based out of New Hampshire, also questioned why the officers got so close to Tamir so quickly. He said the poor quality of the video makes it difficult to create an accurate account of what transpired, but the officers may have shouted the commands through an open window.

If Garmback had pulled to within, say, 75 feet of Rice and told him to drop his weapon, both sides would have had time to communicate. As it is, Loehmann claims he yelled at Rice repeatedly to show him his hands as the cruiser was rolling up and saw Rice reach into his waistband. Was that a threatening gesture or Rice’s ill-timed attempt to show them the gun was fake by producing it? No one knows because the close proximity left them no time to find out. As Rice’s elbow began to come up from his waistband, Loehmann (who’d been pressured into resigning from a different police force a few years earlier due to “dangerous loss of composure during live range training and his inability to manage this personal stress”) had to make a snap decision whether to fire. With more distance between them, he might not have. And if Rice’s gun had been real, greater distance would have potentially saved their lives: As one of the cops quoted in the excerpt above noted, a close-range confrontation benefits the suspect because he’s probably less skilled with a gun than trained officers are. In a shootout from 75 feet, you like the odds of two cops against one criminal. From 10 feet, it’s really just a matter of who draws first.

Let me remind you: An Ohio judge, when petitioned by law to issue his opinion of whether Loehmann and Garmback should be charged criminally, recommended four separate counts for Loehmann — including murder — and negligent homicide and dereliction of duty charges for both. Even if you blanch at the idea of calling what happened here murder, why don’t the “very poor” tactics support one of the lesser charges? That’s what makes this incident so hard for many people to swallow, I think. A fatal confrontation probably could have been avoided with a more cautious approach, especially considering that there were no bystanders near Rice at risk of being shot.

But that’s half the story. The other half is the fact that the county prosecutor, Timothy McGinty, extended these two cops the same exceptional courtesy that Darren Wilson received in the shooting of Michael Brown — namely, he presented all the facts to the grand jury instead of only those facts most beneficial to the prosecution’s side. That’s good procedure, as it means someone who’s likely to be found not guilty at trial can go free sooner due to lack of probable cause. Wilson, who was cleared by Obama’s DOJ in the Brown shooting, is a perfect example. But only a very few lucky souls, usually police officers facing high-profile charges of excessive force, seem to benefit from that sort of prosecutorial diligence. Typically a grand jury isn’t a true fact-finding body but a rubber stamp for the D.A., since it only sees the facts the prosecutor wants it to see. The reason Wilson and now Loehmann and Garmback got a fairer shake isn’t just because prosecutors are biased towards cops, it’s because the prosecutor wanted to offload the decision on whether to indict to an impartial body rather than make it himself, as the D.A. almost always does. McGinty could have gone in there and showed only the most damning bits of the incident to the GJ — how quickly the shooting happened, how the two cops never performed first aid on Rice after he was down, how experts in police procedure thought the tactics were poor, and so forth. But then they would have ended up being indicted, and then the prosecution’s in a bind. If they go to trial and get convicted, the local cops and pro-police voters will all be angry. If they go to trial and the cops are acquitted, the D.A. will be blamed for botching the case and angry protesters may riot over the verdict. This is quickly becoming the middle-ground option for prosecutors in shootings by cops: Take it to the grand jury and very meticulously present both sides of the case. If it doesn’t indict, then the evidence obviously wasn’t there to make a case. If it does indict, hey — the prosecution gave the cops every fair shake in the pre-trial stage. How about doing that for non-police defendants too?

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