Tamir Rice, Res Ipsa Loquitur, and The Cost of a Second in Time

I have been ranting about the Tamir Rice incident on Twitter and wanted to organize my thoughts on the entire episode. Tamir Rice is the 12 year old kid in Cleveland who was shot and killed by Police Officer Timothy Loehmann last year. A grand jury in which the prosecutor seemed to play the role of defense attorney (http://abcnews.go.com/US/tamir-rice-case-prosecutor-abused-manipulated-grand-jury/story?id=35979452) as much as prosecutor declined to bring an indictment this week. Here is the video with audio from the 911 call. https://www.youtube.com/watch?v=mSCftESyKyU At 1:26 into that video, the police car skids to a stop in front of Rice. At 1:28 Rice is down on the ground, mortally wounded by a gunshot from Office Loehmann. According to what has been leaked from the Grand Jury evidence, Loehmann and partner, Officer Garmback, within those two seconds did the following: determined that the individual in the pavillion area was the suspect in question, yelled multiple times to “Freeze and put your hands up!” (though witnesses could not corroborate that), perceived that Rice was moving his hand to his gun, and made the decision to shoot twice (or three times according to some witnesses) and kill him. In under two seconds. Here is the frame by frame: http://www.nytimes.com/interactive/2015/12/22/us/24cleveland-tamir-shooting-listy.html

Res Ipsa Loquitur means “The thing speaks for itself.” It is a legal term used in the area of tort that essentially means “You were responsible for this thing and did damage. You’re presumed liable unless you can affirmatively prove otherwise.” Forgetting all of the other background facts and circumstances of this case which are riddled with human error (the dispatcher failing to relay that the gun may be a toy, Office Garmback pulling the vehicle too close to Rice, Loehmann being potentially an emotionally unstable individual who was removed from his previous police position for mental and emotional health issues http://thefederalist.com/2015/12/30/in-the-tamir-rice-case-cleveland-was-a-police-disaster-waiting-to-happen/), assessing a situation and shooting in under two seconds creates a presumption of wrongdoing on the part of Loehmann. This is not how criminal law works of course; it is the burden of the State to prove each element of a crime affirmatively. But when looking at whether there was enough information to move forward on a charge of Involuntary Manslaughter, it seems relevant that it is almost impossible to do all that Officer Loehmann claimed to do successfully and competently in that timespan. He shot and killed someone in two seconds, so he should therefore prove that his affirmative defense of justifiable use of force was reasonable. Think about it this way: If Loehmann had made his assessment and shot in 1s what verdict? .5 seconds? .25 seconds? As you approach zero, you approach absolute negligence. At some point enough time passes that a reasonable assessment can be made. When does a shooting cross that threshold?

The cost of a second. Had Officer Loehmann waited an additional half second to second, what would have happened? It would have become clear whether Rice was in fact reaching for his gun, reaching his hands into the air as being commanded, or simply raising his hands in reflex being confronted by a man with a gun pulled hopping out of a car in an instant. The family maintains, based on a video expert hired by them, that Rice’s hands were in his pockets and that he was raising them. The prosecution asserts that Rice’s hands were moving to his waistband to retrieve his gun. I believe the discrepancy in accounts alone created a question of fact that should have been resolved in a court of law because the entire case turns on that question. I have watched and rewatched the video numerous times. It is impossible to tell what is really going on. It is possible Loehmann is correct (though perhaps only luckily so.) It is possible that Loehmann was incorrect but reasonably interpreting Rice’s movements. It is possible Leohmann is incorrect and unreasonably interpeted Rice’s movements. A mistaken belief that there was a threat does not a a threat make. Was Rice’s arm twitch and movement enough to justify the use of deadly force? There are people who say Yes, it clearly was justified (which I think is impossible to determine from the video). There are people who say it was essentially a coin flip and what are you going to do? But it matters because the difference is whether Loehmann was negligent or not and justified in taking a life. We can’t lose sight of that. The standard is not “What would an ordinarily scared person do in these circumstances?” But rather “Did Loehmann objectively reasonably believe his life was in danger?” Except that for police the standard seems to be lowered to “It was a close call so we err on the side of justifiable use of force.” (In fact, in Wisconsin leading up to this case: http://www.politico.com/magazine/story/2014/08/what-i-did-after-police-killed-my-son-110038, internal reviews found that every single police use of deadly force was justified.) That standard cannot be allowed to stand.

The price of the additional second was exacted from the one who bore the risk. The closer the time of the encounter approaches zero between the moment Loehmann exits the vehicle and subsequently fires his weapon, the more risk he is placing on the citizen. The more time he allows to pass, the more risk he is placing on himself of a Type II error; the error of assuming the person not to be a threat when he is a threat. The police must be required to bear some risk in these enounters. And we know that they often do and pay for it with their lives. But when confronting a citizen it cannot be that the citizen must always assume all of the risk of the encounter. It is not “When in doubt, fire” but rather “When in doubt, hold fire.” Loehmann was aware, or should have been, the suspect was a juvenile- that much information was relayed by the dispatcher. He was owed more than under two seconds of time before taking his life. By failing to give adequate time to verify the situation, Loehmann failed to bear any of the risk and should bear the penalty for getting it wrong.

Miscellany. The prosecutor also stated that because the gun was sitting out on the ground, it was conclusive evidence that Rice had been reaching for the gun. First, I don’t believe that’s true. A gun, if in a waistband, can simply fall out. But why was Rice reaching for his pellet gun? We know that the police involved thought it was a real gun. Why on earth would Rice reach for his pellet gun to confront a man with an actual gun? He was acting foolishly up to that point but, unless he was delusional, there would have been no reason to. Though I’ll concede it’s possible he was reaching for the gun in an attempt to drop the gun too, thinking that he was in trouble for using it. Here his intent would have been innocent, but it could have reasonably been interperted as hostile. Still, while police are trained to say, “He was going for his waistband” as practically a reflex in these situations, it does not actually make sense here. Either Rice’s movements could reasonably be interepted as such or Loehmann was mistaken.

City policy. It’s wholly irrelevant what Cleveland PD’s policy was on active shooters. To engage? In what way? It seems to me that people are citing this as justification for essentially taking a person out regardless of the circumstances. Now, think of what evidence the police had that there was an immediate danger- a phone call. That’s it. So I could be standing in my street, and a neighbor upset with me could call the police and allege I was waving a gun at people. I am now placed in the “Active shooter” box. Are police allowed to drive up and kill me immediately? No, the law controls, not any policy. They must make an attempt to determine whether I am in fact a threat and to get me to lawfully comply with an arrest. They cannot take my life because their policy says to engage active shooters and someone alleges I am an active shooter.

Charles Blow has made the strong point that there were still children and people in the area of Rice as he was taking his pellet gun out and scaring others. In fact in the first video above, you can see a person sitting near Rice in the pavillion just before police arrive. In other words- the people in the area knew there was no danger. Officers Loehmann and Garmback, had they taken a moment to survey the area would have realized this was the case, and should have lowered their aggressive posture as a result. If you compress the time frame down to the two seconds of the encounter, it does become a little hazy as to whether the shooting was justified. If you back up a bit, you realize that the officers here did not have to approach the situation as they did, car speeding to a stop and guns blazing on exit without time to properly assess and think. They negligently created the circumstances that led to Rice’s death.

People are not upset enough about this case. It is not merely a tragedy. It is, regardless of criminal liability for Loehmann, the result of systemic negligence, corruption with the grand jury process, and a culture of over aggressive policing. We should demand better of law enforcement.

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