By Arthur H. Garrison, assistant professor of criminal justice at Kutztown University
On November 22, 2014, two Cleveland, Ohio, police officers were called to investigate a "man with a gun" in the park.
The caller told the dispatch that there was a juvenile in the park flashing a toy gun. The juvenile was later identified as 12-year-old Tamir Rice. The police were only told by dispatch that there was an active shooter in the park.
The police officers arrived at the park and as they stopped, opened their car doors, Tamir was shot and killed.
The film of the shooting showed that the police arrived at the scene, and Timothy Loehmann fired his weapon within two seconds.
On December 28, 2015, the grand jury impaneled by Cuyahoga County prosecutor Tim McGinty, following his recommendation, determined that the two police officers should not be charged with the death of Rice.
In his statement, McGinty said, "to charge police... the State must be able to show that the officers acted outside the constitutional boundaries set forth by the Supreme Court of the United States. Simply put... human error, mistakes and miscommunication... did not indicate criminal conduct by police." Here is the problem, McGinty is totally correct!
Police accountability in use of force is not governed or defined by mistake, incompetence, or stupidity.
Police use of force is governed, as far as criminal and civil liability is concerned, by the Fourth Amendment to the U.S. Constitution.
The Fourth Amendment says, "The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated...”
The operative word in the phrase is unreasonable.
Think of reasonable as acting normally or as expected under the circumstances.
The Supreme Court held in Tennessee v. Garner (1985) and Graham v. Connor (1989) that police use of deadly and non-deadly use of force is a seizure and thus only governed under the Fourth Amendment.
The Court held that police only violate the Fourth Amendment if they act unreasonably.
In subsequent cases, the Supreme Court has held that the legal question is “Was the level of force used, under the totality of the circumstances and facts known to the officer at the time, viewed from the perspective of the officer, reasonable?”
The Court has also made clear that Fourth Amendment analysis is not subject to hindsight and does not consider whether the officer was in fact right or wrong in assessing the situation. In cases of ambiguity, the officer gets the benefit of the doubt.
In his statement, McGinty said, "On close examination... recent enhancement of the surveillance video... it is now indisputable that Tamir was drawing his gun from his waist as the police car slid toward him and Officer Loehmann exited the vehicle... [I]t is likely that Tamir... either intended to hand it to the officers or to show them it wasn't a real gun. But there was no way for the officers to know that because they saw the events rapidly unfolding in front of them from a very different perspective."
McGinty is totally correct!
Assuming McGinty is correct regarding what the video shows; the shooting was clearly self-defense.
Self-defense is allowed if the use of deadly force was reasonable, under the totality of the circumstances, to prevent death or great injury.
The legal issue is assessed from the shooters perspective. The legal question is whether a reasonable person in that situation (1) would have perceived the danger as life threatening and (2) would have used the deadly force used by the shooter.
In regard to police shootings, the Court has held that it does not matter if in fact there was a danger or police incompetence helped create the danger.
The Fourth Amendment only requires that at the moment deadly force was used, the perception of danger and the reaction to it was reasonable.
In his statement, McGinty said, "Minutes before, they had been assigned to respond to a Code One report of a guy pointing a gun at people... [T]he police were prepared to face a possible active shooter in a neighborhood with history of violence... Officer Loehmann had just seen Tamir put an object into his waist... A moment later, as the car slid toward him, Tamir drew the replica gun from his waist and the officer fired. Believing he was about to be shot was a mistaken — yet reasonable— belief given the high-stress circumstances and his police training. He had reason to fear for his life."
Again, McGinty is totally correct!