On November 22, 2014, a twelve-year-old boy named Tamir Rice, playing with a toy pistol at a park, was shot and killed by a Cleveland police officer. Rice was no Michael Brown; he hadn’t committed a crime, didn’t do anything to deserve being shot, and wasn’t posing a threat to anyone. His tragic death understandably generated massive public outrage. Last week’s announcement that the officer who killed him wouldn’t be charged was both expected and dreaded; expected because officers are rarely indicted for killing suspects, and dreaded because of the additional fuel it would pour onto the anti-police fire.
Rice’s death was undeniably tragic. But was it a crime?
The evidence says it wasn’t.
Why would police kill a twelve-year-old with a toy gun? The simple answer is that Rice didn’t appear to be a child, and his weapon looked real. Perhaps the most emotional responses to this shooting have been a result of Rice’s age and the fact that he just had a toy. But the officers involved had no way of knowing those things.
Boiled down to basics, here’s what happened:
- Someone called the police and reported a suspicious person with a gun;
- Police responded and found the suspect;
- The suspect reached for what looked like a real weapon in his waistband;
- One of the responding officers believed his life was in imminent danger;
- The officer shot and killed the suspect.
That’s why the officers weren’t indicted. They answered a call, thought their lives were in danger, and one officer used deadly force. If a police officer is lawfully performing his duties and reasonably believes he’s in imminent danger of being killed by a suspect, he’s justified in using deadly force to protect himself.
Here’s what I know about the shooting:
The 911 call:
The incident began with a 911 call from a man drinking beer at Cleveland’s Cudell Commons Park. The caller reported a black male was pulling a gun from his pants, “pointing it at everybody”, and “scaring the shit out of people”. Early in the call, he reported “it’s probably fake”, and he repeated “it’s probably fake” thirty seconds later. Near the end of the two-minute call he said, “he’s probably a juvenile.” Just before getting off the phone he said, “I don’t know if it’s real or not.”
Two officers were dispatched to investigate. They were NOT told the weapon might be fake, or that the suspect might be a juvenile. They were only told to investigate “a black male sitting on a swing pulling a gun out of his pants and pointing it at people.”
Much blame has been laid at the dispatcher’s feet for not telling the officers the gun might be fake and that Rice might be a juvenile. But in Cleveland, as in many large police departments, dispatchers don’t answer 911 calls. “Call takers” answer those calls, record the information and forward it to police, fire or EMS dispatch. Call takers often make mistakes or miss important facts (I’ve been dispatched to many calls with incomplete or incorrect information, and have had a couple of call slips I literally couldn’t understand).
Listen to the 911 call embedded in the article I linked above; the call taker didn’t press the caller for information about the gun, didn’t ask about the suspect’s demeanor, didn’t follow up on the “he might be a juvenile” and “it’s probably fake” comments and didn’t even ask the caller’s name. She recorded the bare minimum, “black male on a swing pulling a gun from his pants and pointing it at people”, and sent that to dispatch. And that’s all the officers knew when they arrived.
Tamir Rice’s Size:
I knew Rice was twelve from the beginning but didn’t learn until a few days ago that he was 5’7″ and 195 pounds. I’m in my 40’s, also 5’7”, and weigh substantially less than 195 pounds. 5’7” and 195 isn’t huge, but definitely isn’t the height and weight you’d expect from a twelve-year-old.
The 911 caller said the male with the gun might be a juvenile, but later told investigators he thought the male was around twenty because he was a “big boy”. Incessant media reports remind everyone Rice was a child, but rarely say he was built like an adult. I doubt the officers involved saw Rice and thought, “that’s a child.”
Rice was carrying a very realistic-looking Airsoft 1911 .45 replica. The pistol originally had an orange tip, which had been removed. People with extensive experience around weapons would identify it as fake in a sterile environment, but under stress and movement, it’s likely they wouldn’t spot the differences.
I’ve been shooting and collecting guns for over thirty years, and was a weapons repairman and marksmanship coach in the Marine Corps. I’ve fired thousands upon thousands of rounds from many weapons in the Marines and Army, and have carried a gun almost every day as a cop for over twenty years. And I can’t say I would have immediately recognized Rice’s gun as a toy that day, under those conditions.
The Officers Involved:
Two officers in one patrol car were dispatched to investigate. The driver was a six-year veteran named Frank Garmback. His partner, Timothy Loehmann, was a probationary officer with less than one year on Cleveland PD. In 2012 Loehmann worked for the Independence, Ohio Police Department for less than six months. He resigned from IPD in December 2012 for “personal reasons”, but IPD considered him unfit to be a police officer and was about to fire him (see the last few pages of the document). Cleveland PD hired him in December 2013.
While Loehmann had displayed emotional problems and “dismal weapons handling skills” during training at IPD two years earlier, his actions during the Rice shooting showed neither. Whatever his problems before, his actions that day were reasonable and legal if he believed his life was in danger.
The two officers drove down a road into a dead end next to the park, pulled over the curb onto the grass, and drove toward a gazebo where Rice was sitting alone. Rice stood as the police car approached and walked toward the car’s path. Garmback, the driver, stopped the car within a few feet of the gazebo. He stopped with the passenger side facing Rice, which put Loehmann in what he believed was an immediate danger. Rice, only a few feet from the police car, raised his jacket and reached to the pistol on the right side of his waistband.
Approximately two seconds passed between the moment the car stopped and the moment Officer Loehmann shot Rice.
Loehmann, the rookie officer, bailed from the car and fired two shots from no more than seven feet away. One round hit Rice in the lower torso. Rice fell. Loehmann backpedaled, tripped and fell, jumped back up and scrambled to the driver’s side of the car for cover. The driver also bailed out and took cover. Both officers then covered Rice with their weapons while calling for backup. Their actions immediately after the shooting are significant because they show that the officers believed they were facing a real, not fake, pistol.
Initially, Cleveland police claimed Rice had been sitting with a group and that the officers had seen him pick up the gun from the table and put it in his pants. However, surveillance video released later refuted that. The video shows nobody else nearby and doesn’t show the gun at all. The police also claimed an officer ordered Rice to show his hands three times before firing. That’s actually plausible.
People think of verbal commands as slow and clear orders (just like on TV), but in real life, especially if the officer believes his life is in danger, they’re likely to be rapidly blurted and probably not understood. Officer Loehmann couldn’t have calmly said “Put your hands up, sir” three times in two seconds, but he could have shouted “Hands up hands up hands up!” as he drew his weapon (I just timed myself and did it in 1.28 seconds).
Immediately after the shooting, Officer Garmback notified dispatch that shots had been fired and called for EMS. He also said “Step it up”, which is copspeak for “Hurry the hell up because something really bad just happened”. Additional officers arrived, and according to the police report, they all believed Rice to be an adult and the gun to be real.
Neither Garmback nor Loehmann administered first aid. That sounds negligent but probably wasn’t. Police traditionally aren’t trained to perform trauma care, and our response when someone needs medical care is to call for an ambulance. Police departments are finally starting to train for trauma care and issue bandages and tourniquets, but not long ago many police administrators discouraged officers from attempting first aid because they thought it would open the agency to liability. In the Rice case, the officers apparently fell back on the old “hold the scene and call an ambulance” first aid method.
According to the autopsy, Rice “suffered a single gunshot into the left side of his abdomen, near his navel. The bullet traveled through his intestines and lodged into the right side of his pelvis, causing hemorrhaging”. With internal injuries that severe, the officers probably couldn’t have rendered effective aid anyway. Rice had a heartbeat so chest compressions wouldn’t have been required. If he was breathing (I don’t know if he was) mouth-to-mouth wasn’t necessary. For internal bleeding a tourniquet would be useless and pressure bandage of only limited worth. Without additional training and equipment, the officers couldn’t do much more than call for an ambulance.
For several minutes after the shooting the officers covered Rice with their weapons, called for EMS, and stopped Rice’s sister from rushing to his side (we have to keep bystanders away from a crime scene, no matter who the bystanders are or how the victim was shot). A federal agent who happened to be nearby heard the shots fired call, arrived approximately four minutes later and gave some type of medical care. An ambulance arrived and transported Rice to a trauma center, where he died nine hours later.
The officers can be criticized for not administering mouth to mouth if Rice wasn’t breathing. They had perhaps one free minute where they could have begun a medical assessment; the results of that assessment would undoubtedly have been “We need an ambulance.” But police duties, not medical, were their priority. By calling an ambulance they provided the minimum medical care required; they could have done better, and as police officers, we need to start doing more than just call for help.
“But Ohio is an Open Carry state!”
Some people have claimed the police had no authority to shoot because a pistol can be carried openly in Ohio. That’s one of the stupidest things I’ve ever heard. Open Carry has literally nothing to do with this incident, and that argument is being made by people who have no idea what they’re talking about. Open Carry doesn’t mean you can walk down the street with a pistol in your hands, and it doesn’t mean you can walk around a park pointing a pistol at people. Publicly carrying a pistol in a combat ready hold in any OC state will get the police called on you, will get you arrested, and will likely get you shot.
Why did the officers pull up so close if they thought Rice was armed?
My gut reaction from watching the video is that they didn’t realize Rice was their suspect until they were right on top of him. That would explain why the driver approached so closely and why the passenger seemed to have fired almost out of panic. It’s not unusual for officers to unexpectedly encounter suspects; anyone who works the street for any length of time will have some unpleasant surprises. But Cleveland PD initially claimed the officers saw Rice pick up the gun from the table and put it in his pants. If they truly did see that, since it isn’t on video it had to have happened long before the police car reached the gazebo; the surveillance video shows Rice without the gun on the table for sixteen seconds before we see the police car.
If the officers had sixteen seconds advance notice, there would be no tactical reason for them to drive that close. And it would just be a stupid move. The smart thing to do would have been to stop some distance away, draw, take cover and give verbal commands. The driver’s decision to get that close and stop right next to Rice forced the passenger to make a snap shoot/don’t shoot decision.
Officer Loehmann chose to shoot, and I can’t fault him for that. But I do blame his partner for putting him in a position that almost demanded that he shoot. Driving that close was like a cop intentionally standing in front of a suspect’s car, then shooting because “he was coming right at me”. It can be technically legal for the officer to shoot, but he should never have put himself in that situation, to begin with. Likewise, the Rice shooting could have been avoided if the officers had kept their distance.
If Officer Loehmann was wrong, why wasn’t he charged?
Because we put people in prison for committing crimes, not for being wrong. There’s a difference. Contrary to popular belief, it’s possible to kill an innocent person yet still not commit a crime.
In March 2014, a Texas woman killed a man she thought was breaking into her home. She was home alone, it was late, someone tried to force her door open, she reasonably believed her life was in danger, and she fired through her door. The man turned out to be her firefighter neighbor, who came home drunk and tried to get into the wrong house. The woman killed an innocent man and was objectively wrong about him being a threat. But she wasn’t criminally wrong and wasn’t charged.
In February 2014, a small-time marijuana dealer killed a Texas police officer serving a search warrant on his house. The dealer admitted he killed the officer. He wasn’t charged, because a Grand Jury decided he reasonably could have thought he was being robbed, not raided, and that he reasonably acted to defend himself and his girlfriend.
Guilt isn’t decided by what we find out after the fact, it’s decided by what the killer reasonably perceived before they pulled the trigger. And as the two cases above show, a Grand Jury’s job is NOT to indict no matter what; it’s to decide whether or not the facts of a case justify a criminal charge. In those cases, and in the Rice shooting, the Grand Juries correctly determined no crime had been committed.
Officer Loehmann’s decision has to be evaluated based on the facts as they appeared to him, not as they appear a year later to an uninvolved person who knows all the facts. Loehmann didn’t know Rice was a child, didn’t know the gun was a toy, and was put nearly knife-fighting distance from someone he thought was drawing a gun on him. Anyone can look at the objective reality, which we know now, that Rice was no threat. But Loehmann didn’t know that, and couldn’t have known.
In the end…
Some police shootings should rightly be celebrated, like Austin PD’s one-shot kill of an anti-government extremist. Some police shootings are controversial but 100% justified, like the killing of Michael Brown. Some police shootings are blatant crimes, like the shooting of Walter Scott in South Carolina. And some police shootings, like this one, are ugly, tragic, unnecessary and completely suck, but are still legal. There is no “good guy” in this shooting, and I’m sure Officer Loehmann isn’t at home celebrating his decision. After this, I’d be surprised if he ever puts on a badge again.
The Tamir Rice shooting showed a serious flaw within the 911 reporting system, exposed what may have been false reporting from someone in Cleveland PD (not necessarily the officers involved), and may have proven one officer engaged in horrible tactics. It may have shown that the officers had time to medically assess Rice, but chose not to. Those are all bad things.
But it did not show that an officer committed murder, or that he was wrong to believe his life was in danger. That’s why the Grand Jury’s decision not to indict was correct, no matter how much it sucks.
Breach-Bang & CLEAR!
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