WTF? Investigators Say Shooting Someone Without A Warning Is ‘Reasonable’

Cudell Commons in Cleveland, where Tamir Rice was shot (courtesy The Plain Dealer)
Cudell Commons in Cleveland, where Tamir Rice was shot (image courtesy Cory Shaffer, The Plain Dealer/Northeast Ohio Media Group)


Last night, Cuyahoga County, Ohio Prosecutor Tim McGinity released reports from two outside investigators that he called in to help him decide whether to indict the Cleveland police officer who killed 12-year-old Tamir Rice. Both investigators reached an incredible conclusion–Officer Tim Loehmann was acting within reason when he decided to open fire on Tamir last year. It has an attorney for Tamir’s family fearing that Loehmann may not ever be tried.

Kimberly Crawford, a retired FBI agent, and S. Lamar Sims, the number-two prosecutor in the Denver district attorney’s office, independently concluded that Loehmann’s decision to shoot down Tamir was reasonable given the circumstances. According to a release from McGinity’s office, both Crawford and Sims are experts on the use of deadly force. Crawford taught classes on deadly force at the FBI Academy, while Sims is a frequent speaker at seminars on the proper use of force.

Considering the investigators’ backgrounds, I find their conclusions hard to comprehend. Both considered Loehmann’s actions in light of the Fourth Amendment’s ban on “unreasonable searches and seizures.” They both wrote that we cannot consider whether an officer’s actions were right, but reasonable under the circumstances. Crawford wrote that current Supreme Court precedent requires courts and juries to consider the “relevant facts from the perspective of the law enforcement officer on the scene.” In this case, when Loehmann and his partner, Frank Garmback, arrived at the scene, he saw Rice move his hand toward his waistband and under his jacket. Crawford wrote that those actions could “reasonably be perceived” as a threat to Loehmann, especially since he had no cover. Under the circumstances, Crawford felt that “the need to react quickly was imperative.”

Sims reaches a similar conclusion, saying that when reviewing police conduct, we have to focus on “what the officer knew or reasonably should have known at the time” of the incident. He pointed out that Loehmann got out of the patrol car in a hurry and retreated to a position where he had better cover, and also took note of Tamir’s movements as Loehmann and Garmback approached. This led Sims to conclude that Loehmann was “reacting to an immediate threat,” and therefore his decision to shoot was an “objectively reasonable” response to that threat.

As anyone who has followed this case knows, there are 500-pound gorillas in the room. First, Loehmann opened fire only 1.5 seconds after he and Garmback arrived–nowhere near enough time for Loehmann to give a warning first. Yet, both investigators dismissed it as a question of tactics that was not relevant to their review. Crawford argued that while the question of a warning may have been appropriate for “a policy or tactical review,” it wasn’t appropriate to determine whether Loehmann’s actions ran counter to the Fourth Amendment. With all due respect, Crawford is dead wrong. Looking at the surveillance video, there was no defensible reason for Loehmann to have opened fire without giving a warning first.

Neither Crawford nor Sims even considered another factor that takes Tamir’s death from a mere tragedy to a criminal act. According to the Cuyahoga County sheriff’s investigation of the shooting, Tamir didn’t get any medical attention until an FBI agent who was also a paramedic came on the scene. As it turned out, neither Loehmann nor Garmback tried to help Tamir for four minutes even though it was obvious that Tamir was gravely injured. That was major reason why a Cleveland judge found there was probable cause for the two officers to be arrested. If we’re discussing the reasonableness of Loehmann’s actions, then surely reasonableness, as well as basic decency, would require an officer to render first aid to an injured suspect.

Jonathan Abedy, an attorney for the Rice family, thinks that the investigators’ reports give the family “grave concerns that there will be no criminal prosecution.” I have to agree. There is something fundamentally wrong when it is even remotely possible for an officer to shoot someone without giving a warning first, then fail to render medical assistance.

Darrell is a 30-something graduate of the University of North Carolina who considers himself a journalist of the old school. An attempt to turn him into a member of the religious right in college only succeeded in turning him into the religious right's worst nightmare--a charismatic Christian who is an unapologetic liberal. His desire to stand up for those who have been scared into silence only increased when he survived an abusive three-year marriage. You may know him on Daily Kos as Christian Dem in NC. Follow him on Twitter @DarrellLucus or connect with him on Facebook. Click here to buy Darrell a Mello Yello.