tamir rice essay

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Tamir Rice was an innocent 12-year-old child who was killed on November 22, 2014, by a white police officer in Cleveland, Ohio. Two officers responded to a police dispatch call reporting that there was a male pointing a pistol at random people in the park. The 911 caller explicitly stated at the beginning and the middle of the call that the pistol is “probably fake.” Towards the end of the call, he adds that the person pointing the gun “is probably a juvenile.” Tragically, that crucial information was not relayed to the responding officers.

Tamir was by himself, playing in a gazebo when two police officers pulled onto the grass right alongside the gazebo. One officer shot the sixth grader immediately, within three seconds, after arriving on the scene. As the caller had surmised, the gun that this little boy had was indeed just a replica toy gun. The murder of this innocent child happened too quickly. On the video the police car is still in the process of stopping when young Tamir is shot.

To add insult to injury, Tamir’s mother, Samaria Rice, said that she was threatened with arrest because she was yelling at police who refused to let her run to her dying son's aid. She also said that, upon learning he had been shot, his 14-year-old sister also tried to rush to Tamir’s side. That was when police officers tackled Tamir’s sister, handcuffed her and placed her in a squad car with the same police officer who had just shot her little brother.

During the investigation it was revealed that the officer who killed Tamir had been deemed an emotionally unstable recruit and unfit for duty in his previous job as a police officer in a Cleveland suburb. He should not have been a police officer and Tamir should not be dead.

Several months later the prosecution presented evidence to a grand jury, which declined to indict, claiming that Tamir was drawing what appeared to be an actual firearm from his waist as the police arrived. Tamir Rice’s family brought a lawsuit against the city of Cleveland and it was subsequently settled for $6 million.

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Tamir elijah rice (2002–2014).

The shooting death of twelve-year-old Tamir Rice in 2014 brought increased attention to the national debate on interactions between police officers and African Americans. Tamir Elijah Rice was born to Samaria Rice and Leonard Warner on June 15, 2002, in Cleveland, Ohio . At times, Rice’s family life was turbulent as Warner was convicted of domestic violence against Samaria Rice in 2010, while Rice herself pled guilty to drug trafficking charges in 2013. Tamir Rice, who appeared older than twelve because of his 195-pound frame, attended sixth grade at Marion-Seltzer Elementary School in Cleveland and was described as a pleasant young man who enjoyed art and playing sports.

On November 22, 2014, Rice was walking in a park outside the Cudell Recreation Center, a place he frequented. Rice had a black Airsoft pellet gun, without the orange safety indicator usually found on the barrel, and was playing with it around the park. A 911 caller reported Rice’s activities but expressed uncertainty to the dispatcher about whether the gun was real. Two Cleveland police officers, Timothy Loehmann and Frank Garmback, both white, responded to the call but were not informed that the gun might be a fake. Security camera footage showed a police cruiser driven by the forty-six-year-old Garmback, who had been with the force since 2008, race into the frame and stop.

Within two seconds, Loehmann had opened the passenger door and fired two shots at Rice, who was approximately ten feet away. Loehmann claimed he had told Rice to raise his hands three times as the car pulled up, but Rice failed to obey. This could not be verified independently since the footage did not have audio. Rice, who fell to the ground immediately after being shot, died the next day in the hospital. Officer Loehmann was a twenty-six-year-old rookie who had been on the job in Cleveland for eight months. Prior to this, he had been rejected for police jobs in several nearby towns and cities as well as the Cuyahoga County Sheriff’s Department. Loehmann was hired by the police department in Independence, Ohio, but resigned in November 2012 after a poor performance review.

The timing of these events came on the heels of the Michael Brown case in Ferguson, Missouri , and the beginnings of the Black Lives Matter movement. Several hundred protesters gathered in downtown Cleveland on November 25 in response to both Rice’s killing and the decision not to indict the police officer who fatally had shot the unarmed eighteen-year-old Brown in August 2014. Demonstrators temporarily blocked rush-hour traffic after marching down an exit ramp to a busy freeway.

Tamir Rice’s funeral was held on December 3, 2014, at Mt. Sinai Baptist Church. On October 27, 2015, a grand jury began hearing the Tamir Rice case. Officers Loehmann and Garmback were subpoenaed and appeared in front of the grand jury on December 1 to read their sworn statements. On December 28, the grand jury returned a decision not to indict either officer in the deadly shooting. On January 1, 2016, more than one hundred protesters marched to the home of Cuyahoga County Prosecutor Tim McGinty in West Cleveland. Police accompanied the group along the way and stood in McGinty’s driveway but did not intervene as demonstrators repeatedly called for the prosecutor’s resignation. McGinty lost his bid for re-election in March 2016, after a single tumultuous term.

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Nick Fagge & Lydia Warren, “Exclusive: ‘My 12-year-old grandson was outright MURDERED by police,’ [London] Daily Mail , November 28, 2014, http://www.dailymail.co.uk/news/article-2853266/My-12-year-old-grandson-MURDERED-police-Family-black-boy-BB-gun-shot-dead-not-putting-hands-breaks-silence-slam-officers-killed-him.html ; Andrew Tobias, “Portrait of Tamir Rice emerges from investigators’ interviews,” Cleveland.com, June 13, 2015, http://www.cleveland.com/metro/index.ssf/2015/06/portrait_of_tamir_rice_emerges.html ; “Interactive: Tamir Rice Timeline,” Cleveland19.com. June 3, 2015, http://www.cleveland19.com/story/29230520/tamir-rice-timeline ; “Tamir Rice Protesters March to Prosecutor’s Home, Demand Resignation,” NBCNews.com , January 1, 2106, http://www.nbcnews.com/news/us-news/tamir-rice-protesters-march-prosecutor-s-home-demand-resignation-n489071 ; Andrew Tobias, “Timothy Loehmann, the Cleveland cop who shot Tamir Rice, failed the Cuyahoga County Sheriff’s Department’s written entrance exam.” Cleveland.com, January 7, 2015, http://www.cleveland.com/metro/index.ssf/2015/01/timothy_loehmann_the_cleveland.html .

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Tamir Rice investigation details released by prosecutor

Updated on: June 13, 2015 / 7:46 PM EDT / CBS/AP

CLEVELAND -- Nearly seven months after a Cleveland police officer fatally shot a 12-year-old boy, the Cuyahoga County Prosecutor's Office released the results of a sheriff's department investigation into the death of Tamir Rice, CBS affiliate WOIO-TV in Cleveland reported Saturday.

The 12-year-old boy was shot outside the Cudell Recreation Center in Cleveland Nov. 22. He died at a hospital the following day. The medical examiner ruled his death a homicide .

The Cuyahoga County Sheriff's Department turned over its investigation to the county prosecutor's office June 3. Prosecutor Tim McGinty has said the racially charged case, as with all police-involved shootings, will be taken to a grand jury to determine whether criminal charges should be filed against the officer who shot Tamir, rookie patrolman Timothy Loehmann, or his partner, Frank Garmback.

McGinty said he decided to release the investigative file now in the interests of transparency.

"If we wait years for all litigation to be completed before the citizens are allowed to know what actually happened, we will have squandered our best opportunity to institute needed changes in use-of-force policy, police training and leadership," McGinty said.

The documents detail the moments before the brief, deadly encounter -- and how the responding officers seemed almost shell-shocked as the boy lay bleeding outside the rec center.

A friend of Tamir told sheriff's deputies he had given the airsoft-type gun to him on the morning of Nov. 22 in exchange for one of the boy's cellphones and planned to get it back later that day.

The friend told sheriff's deputies he had taken the gun apart to fix it and was unable to reattach the orange cap that goes on the barrel to indicate it isn't the .45-caliber handgun it's modeled after.

He said he warned Tamir to be careful because the gun looked real.

Investigators were told that Tamir used the airsoft gun, which shoots non-lethal plastic projectiles, to shoot at car tires that day. Loehmann and Garmback were responding to a call about a young man waving and pointing a gun outside the rec center.

Grainy, choppy surveillance video shows Loehmann shooting Tamir within two seconds of his police cruiser skidding to a stop near the boy. The video appears to show Tamir reaching for the pellet gun, which is tucked in his waistband, when he's shot.

Investigative documents said it's been estimated that Loehmann fired twice at a range estimated at between 4 1/2 and 7 feet. Autopsy records indicate Tamir was struck only once.

An FBI agent who is a trained paramedic was on a bank robbery detail nearby. He began administering first aid four minutes after the shooting. The agent, whose name is redacted from the files, told investigators that Tamir's wound was severe but he was still initially conscious. Tamir, he said, showed a response when he told him he was there to help.

Loehmann, 26, and Garmback, 47, have been criticized for not giving Tamir first aid. The officers seemed to freeze, the agent said.

"They wanted to do something, but they didn't know what to do," the agent told investigators.

The agent said Tamir answered when he asked him his name and said something about his gun. When Tamir became unresponsive, the agent called out for assistance to keep the boy's airway open. He told investigators he believed it was Garmback who provided help.

Loehmann, who had sprained his ankle while falling back after the shooting, was described as distraught by the agent, according to the documents. He was overheard muttering something to the effect of, "He had a gun and reached for it after I told him to show his hands," WOIO-TV reported.

Tamir died on the operating table early the next morning.

Loehmann's attorney, Henry Hilow, said he has not had a chance to read the investigative file and said the officer committed no wrongdoing.

"The events were a tragedy, but there was no crime committed," he said.

Nearly everyone involved on the scene thought Tamir was older than 12, with estimates ranging from 17 to early 20s. The autopsy report revealed he was 67 inches tall, or 5 foot 7, and weighed 190 pounds.

While Tamir might have been big for his age, those who knew him told investigators that he carried himself like the 12-year-old he was. The sixth-grader was in a special education class of six children at his elementary school, prone to exaggeration and sometimes picked on by other children at the recreation center, the investigative documents say.

Cleveland police said Loehmann told him three times to drop the weapon before the boy reached toward his waistband and the officer fired. Sheriff's detectives wrote that from witness interviews it was unclear if Loehmann shouted anything to Tamir from inside the cruiser before opening fire.

Tamir's death is among a series of cases involving the use of deadly force on black suspects that sparked protests and outrage across the country. Critics have questioned police conduct in the deaths of black suspects in Ferguson, Missouri; New York City, North Charleston, South Carolina; Baltimore and elsewhere.

A federal judge on Friday approved an agreement forged between the city of Cleveland and U.S. Department of Justice aimed at reforming the city's police department , which the DOJ concluded after an 18-month investigation had shown a pattern and practice of using excessive force and violating people's civil rights .

The Sheriff's Department and Ohio Bureau of Criminal Investigation (BCI) took over the investigation in January, at the request of the Cleveland Police Department.

"We are now in the process of reviewing this report and deciding what additional investigation is needed," McGinty said Saturday, according to WOIO-TV. "That is the way that every significant investigation works: The sheriff's investigation is a good solid foundation that will support the grand jury's own investigation. Tamir's family, the people of this community and the officers involved deserve nothing less than the most thorough investigation and analysis possible."

In addition to reviewing the investigative report, members of the grand jury also can ask to hear from additional witnesses, including expert witnesses. They will ultimately make the final decision about whether criminal charges are warranted, according to McGinty.

On Thursday, a municipal court judge ruled there is enough evidence to charge Loehmann with murder and other charges in Tamir's death and to charge Garmback with reckless homicide or dereliction of duty.

The ruling, which is largely symbolic since it is nonbinding, came days after a group of activists submitted affidavits asking the court to charge the officers .

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Must-Read Reactions To Grand Jury Decision in Tamir Rice Case

Leah Donnella

Demonstrators block Public Square in Cleveland on November 25, 2014, during a protest over the police shooting of 12-year-old Tamir Rice. Tony Dejak/AP hide caption

Demonstrators block Public Square in Cleveland on November 25, 2014, during a protest over the police shooting of 12-year-old Tamir Rice.

On Monday, a grand jury decided not indict Timothy Loehmann, the Cleveland police officer who shot and killed 12-year-old Tamir Rice in November 2014. At time of the shooting, Rice was in a park, playing with an air gun he had borrowed from a friend. Loehmnann fired his weapon at the boy within two seconds of arriving on the scene.

It's now been over a year since Tamir's death, and for many supporters of the Rice family, the ensuing case has been a frustrating series of delays and injustices culminating in today's heartbreaking — but not surprising — decision. The victim's family had this to say in a statement :

"It has been clear for months now that the Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment. "Even though video shows the police shooting Tamir in less than one second, Prosecutor McGinty hired so-called expert witnesses to try to exonerate the officers and tell the grand jury their conduct was reasonable and justified. "It is unheard of, and highly improper, for a prosecutor to hire 'experts' to try to exonerate the targets of a grand jury investigation. These are the sort of 'experts' we would expect the officer's criminal defense attorney to hire — not the prosecution."

Jamelle Bouie of Slate says that Tamir Rice's shooting and the subsequent acquittal of the officers involved are emblematic of a broader trend where police officers refuse to accept personal risk :

"What we see with Tamir Rice—and what we've seen in shootings across the country—is what happens when the officer's safety supercedes the obligation to accept risk. If "going home" is what matters—and risk is unacceptable—then the instant use of lethal force makes sense. It's the only thing that guarantees complete safety from harm. "It's also antithetical to the call to "serve and protect." But it's the new norm. And worse for any accountability, it sits flush with our broad sympathy with police in the courts of law and public opinion. So that, when police kill someone in this relentless drive to reduce risk, it's almost impossible to hold officers accountable, barring incredible circumstances. The public just accepts that this is what police had to do."

Aviva Shen at Think Progress detailed the timeline of the investigation back in October, echoing the belief, held by many, that prosecutor McGinty intentionally "prolonged the investigation and hindered the case." According to Shen, Tamir's case sits in stark contrast to similar ones:

"Tamir Rice's family has waited for a decision to move forward with the case for almost a full year, while other high profile police shootings around the country have reached decisions over indictments in a matter of days or weeks. McGinty has not yet presented the sheriff's investigation to the grand jury, which has been in his hands since June. With the release of the most recent report, McGinty has suggested it could take well over a year to decide to indict the officers, let alone to begin to try the case. "With each delay in the process, the chances for indictment and successful prosecution of the officers grow slimmer. Witnesses move away, memories fade, and evidence tends to disappear ."

Monday, when the decision was finally announced, Vox's German Lopez filled in some more context . His piece detailed the factors that led to the shooting of Tamir Rice, from the police's misperception of his size and age to the failure of the dispatcher to mention that his gun was probably a toy and to systemic problems with training in the Cleveland police department. Race, says Lopez, is also an important component:

"Black teens were 21 times as likely as white teens to be shot and killed by police between 2010 and 2012, according to a ProPublica analysis of the FBI data. ProPublica's Ryan Gabrielson, Ryann Grochowski Jones, and Eric Sagara reported: 'One way of appreciating that stark disparity, ProPublica's analysis shows, is to calculate how many more whites over those three years would have had to have been killed for them to have been at equal risk. The number is jarring — 185, more than one per week.' "The disparities appear to be even starker for unarmed suspects, according to an analysis of 2015 police killings by the Guardian . Racial minorities made up about 37.4 percent of the general population and 46.6 percent of armed and unarmed victims, but they made up 62.7 percent of unarmed people killed by police."

According to CNN , prosecutor McGinty expressed remorse over Tamir's death, calling it an "absolute tragedy," but was adamant about the legality of everything that had taken place:

"The state must be able to show that the officers acted outside the constitutional boundaries set forth by the Supreme Court of these United States. "Simply put: Given this perfect storm of human error, mistakes and communications by all involved that day, the evidence did not indicate criminal conduct by police."

But Radley Balko of the Washington Post said back in March that talking about legality can take us only so far . While what Loehmann did may have been legal in the strictest sense of the word, Balko writes,

"We shouldn't be asking if the police actions were legal or within department policy; we should be asking if they were necessary . Or if you'd like to use a word with a bit more urgency behind it, we should ask if they're acceptable. "Asking if a police shooting was legal tells us nothing about whether or not we should change the law. Asking whether or not it was within a police agency's policies and procedures tells us nothing about the wisdom of those policies and procedures. Of course, both of those questions are important if your primary interest is in punishing police officers for these incidents. But while it can certainly be frustrating to see cops get a pass over and over again, even in incidents that seem particularly egregious, focusing on the individual officers involved hasn't (and won't) stopped people from getting killed."

The U.S. Department of Justice says it will continue a separate investigation of Tamir's death :

"The Civil Rights Division of the Department of Justice, the United States Attorney's Office and the Federal Bureau of Investigation have been monitoring the investigation that has been conducted regarding the death of Tamir Rice on Nov. 22, 2014. We will continue our independent review of this matter, assess all available materials and determine what actions are appropriate, given the strict burdens and requirements imposed by applicable federal civil rights laws. Additionally, the Department of Justice continues in its efforts to pursue ongoing and comprehensive reform pursuant to the consent decree in the federal, civil pattern and practice case filed before Chief Judge Solomon Oliver in the United States District Court for the Northern District of Ohio."

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The Legal Murder Of Tamir Rice

It should be increasingly clear that the police officer who killed 12-year-old Tamir Rice will not be tried; and should he be tried, he will not be convicted. The successful prosecution of a police officer for murder almost never happens . It probably won’t happen in the killing of Rice :

Two outside investigators looking into the death of Tamir Rice have concluded that a Cleveland police officer, Tim Loehmann, acted reasonably in deciding last year to shoot when he confronted the 12-year-old boy carrying what turned out to be a replica gun… “The question is not whether every officer would have reacted the same way,” Kimberly A. Crawford, the retired F.B.I. agent, wrote in her report , which noted that Officer Loehmann had no way of knowing Tamir’s gun was fake. “Rather, the relevant inquiry is whether a reasonable officer, confronting the exact same scenario under identical conditions could have concluded that deadly force was necessary.”

To be found not guilty of murder, a police officer need not prove that he used lethal violence against a threat, but that he reasonably believed himself to be  threatened. Even in the case of Michael Slager, who shot a fleeing Walter Scott in the back, optimism for a conviction should be tempered :

Slager fired "because he felt threatened," and had no way to know Scott was unarmed because he had not had the chance to pat him down, his lawyer said. "He sees irrational behavior of a suspect, at that time," Savage said. "He sees a guy who's committed four felonies in the last minute and a half — violently resisting arrest, assaulting a police officer, robbing the police officer of his weapon Taser, and using that Taser in attempt to harm him. Four felonies in the last 30-45 seconds." After he took off running, Scott pivoted, the lawyer said, at which time the officer figured "the logic is that was going for a weapon."

At some point the discussion of police violence will have to move beyond the individual actions of officers to the level of policy. Convicting an officer of murder effectively requires an act of telepathy. As long as this is the standard, then the expectation of justice for a boy like Tamir Rice is little more than a kind of magical thinking.

Perhaps it is necessary to ask why we even have this standard in the first place. This is where my own questions begin: Is our tolerance for the lethal violence of the police rooted in the fact that lethal violence in our society is relatively common? Put differently, murder in America is much more common than in other developed countries . Is this how we have made our peace with that fact? Our world is, in some real sense, more dangerous. In recognition of this, have we basically said to the police, “Do what you will?” And in the case of Stand Your Ground , has this “Do what you will” ethic even extended to the citizenry? And if that is the case, then is there a line that can be drawn from Tamir Rice to Walter Scott to Sandy Hook to Trayvon Martin?

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Justice Department Announces Closing of Investigation into 2014 Officer Involved Shooting in Cleveland, Ohio

The Justice Department announced today that the career prosecutors reviewing the independent federal investigation into the fatal shooting of Tamir Rice on Nov. 22, 2014, in Cleveland, Ohio, found insufficient evidence to support federal criminal charges against Cleveland Division of Police (CDP) Officers Timothy Loehmann and Frank Garmback.  Yesterday the department notified counsel for Mr. Rice’s family of the decision and today sent a letter to Mr. Rice’s family explaining the findings of the investigation and reasons for the decision.

Applicable Law

The department examined the facts in this case under relevant federal criminal statutes.  The federal criminal statute applicable to these facts is Title 18, U.S. Code, Section 242, Deprivation of Rights Under Color of Law.  In order to proceed with a prosecution under Section 242, prosecutors must establish beyond a reasonable doubt that a law enforcement officer acted willfully to deprive an individual of a federally protected right.  The right implicated in this matter is the Fourth Amendment right to be free from an unreasonable seizure.  This right includes the right to be free from unreasonable physical force by police.  To prove that a police shooting violated the Fourth Amendment, the government must prove beyond a reasonable doubt that the use of force was objectively unreasonable based on all of the surrounding circumstances.  The law requires that the reasonableness of an officer’s use of force on an arrestee be judged from the perspective of a reasonable officer on the scene, rather than with added perspective of hindsight.  The law set forth by the Supreme Court requires that allowances must be made for the fact that law enforcement officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving.  Finally, caselaw establishes that an officer is permitted to use deadly force where he reasonably believes that the suspect posed an imminent threat of serious physical harm, either to the officer or to others.

Additionally, to prove that a shooting violated section 242, the government must prove beyond a reasonable doubt that the officers acted willfully.  This high legal standard – one of the highest standards of intent imposed by law – requires proof that the officer acted with the specific intent to do something the law forbids.  It is not enough to show that the officer made a mistake, acted negligently, acted by accident or mistake, or even exercised bad judgment.

Although Tamir Rice’s death is tragic, the evidence does not meet these substantial evidentiary requirements.  In light of this, and for the reasons explained below, career federal prosecutors with both the Civil Rights Division and the U.S.  Attorney’s Office concluded that this matter is not a prosecutable violation of the federal statutes.

Factual Overview

This summary is based on, and consistent with, all facts known to the government after a thorough examination, most of which are undisputed. 

On Nov. 22, 2014, Tamir spent the majority of the day at the Cudell Park Recreation Center (CPRC).  Throughout the day, Tamir was frequently seen playing with a toy black airsoft pistol with a removable magazine that was visually virtually indistinguishable from a real .45 Colt semi-automatic pistol. Tamir would periodically point the toy gun at individuals at the CPRC and at the adjoining playground. 

At approximately 3:11 p.m., an individual made a “911” call to report that a “guy with a pistol” was pointing a gun at multiple people on the playground at the CPRC.  The caller gave a detailed description of the individual, stated that he was “probably a juvenile,” and that the gun was “probably fake,” but he also described the scene as very frightening.  On the date of the incident, Tamir was 12-years-old and stood 5’7” and 195 lbs.

A 911 dispatcher subsequently broadcast the call as a “Code 1” (the highest priority call) and Officers Garmback and Loehmann radioed that they would respond.  The information the dispatcher relayed to Officers Garmback and Loehmann was “there’s a black male sitting on the swing.  He’s wearing a camouflage hat, a gray jacket with black sleeves.  He keeps pulling a gun out of his pants and pointing it at people.”  The dispatcher did not relay that the individual might be a juvenile or that the gun might be fake.  Thus, the officers believed that they were responding to a playground where a grown man was brandishing a real gun at individuals, presumably including children.

Video from the CPRC captured the subsequent events.  It is important to note that the video footage is grainy, shot from a distance, does not show detail or perspective, and portions of the incident are not visible because of the location of the patrol car.  Further, the time lapse footage captures approximately two frames per second at a variable rate, which is incapable of capturing continuous action.

Officers Garmback and Loehmann approached the CPRC’s playground area with a swing set, Tamir’s reported location.  Tamir was not in the swing set area when the patrol car entered the park, but was sitting alone at a picnic table under the gazebo located west of the swing set. He matched the description of the suspect provided by the dispatcher.  No other people were in the immediate area. 

It is not clear from the video evidence when Tamir became aware of the patrol car driving toward the gazebo.  Tamir stood up at the picnic table approximately 10 seconds before the shooting and over the course of the next three seconds, he walked around the end of the table in a semi-circle, so that he was facing in the general direction of the oncoming patrol car but not yet moving toward it.  Meanwhile, the patrol car continued to approach the gazebo. 

Tamir began walking forward toward the passenger side of the approaching patrol.  Meanwhile, Officer Garmback applied the brakes in an attempt to stop the patrol car, but due to the wet conditions on the ground the car did not stop where he intended and instead slid forward approximately 40 feet.  As the patrol car came to a stop a short distance from Tamir, who by that point had stopped moving forward and was stationary, Officer Loehmann exited the still moving patrol car.  At that moment, it appears that Tamir made movements of some sort with both his left and right arms.  The positioning of the moving arms suggests that Tamir’s hands were in the vicinity of his waist, but his hands are not visible in the video.  Officer Loehmann fired two shots within less than two seconds of opening the passenger door, striking Tamir once in the abdomen. 

As soon as Officer Loehmann exited the patrol car, he fell to his right and to the ground, toward the rear of the patrol car, resulting in an ankle injury.  When Officer Loehmann got to his feet, he quickly moved to the rear driver’s side of the patrol car for cover while continuing to aim his drawn weapon in Tamir’s direction.  Meanwhile, Officer Garmback exited the patrol car and began moving to the front of the vehicle, where he stood for approximately 15 seconds with his gun drawn and pointing in Tamir’s direction.  Enhanced video stills show a dark object (the toy gun) appear on the floor of the gazebo within a few feet of Tamir approximately 7 seconds after the shooting, just as Officer Garmback reached the front of the patrol car and just after Tamir’s upper body moved to the ground (and out of view of the surveillance camera).  Officer Garmback stood at the front of the patrol car for approximately 15 seconds with his gun drawn and pointed in the direction of Tamir, then moved into the gazebo and kicked the toy gun and magazine further away from Tamir. 

After Officer Garmback kicked the toy gun and magazine into the grass, he reported the shots fired and requested emergency medical assistance. 

Video Evidence

The CPRC has a number of surveillance cameras, and the incident is captured on video.  Unfortunately, as previously discussed, this video is a time lapse video, has no audio, is grainy, shot from a significant distance, does not show detail or perspective, and portions of the incident are not visible because the incident occurred on the passenger side of the patrol car, and the camera is shooting from the driver’s side of the patrol car; thus, the patrol car blocks the camera’s view of parts of the activity during the relevant time.  Tamir’s hands are not visible in the video during the relevant time. 

The video generally shows that the patrol car came to a stop a short distance from Tamir, and that Officer Loehmann exited the still moving patrol car.  At that moment, Tamir made movements of some sort with both his left and right arms.  The positioning of the moving arms suggests that Tamir’s hands were in the vicinity of his waist, but his hands are not visible in the video and it cannot be determined from the video what he was doing.  Officer Loehmann fired two shots within seconds of opening the passenger door, striking Tamir once in the abdomen.

Officer Statements

In on-scene statements to three responding law enforcement officers, starting approximately one minute after the shooting, Officer Loehmann repeatedly and consistently stated that Tamir was reaching for his gun just before Officer Loehmann shot.  Officers Loehmann and Garmback gave several additional statements to other responding officers in the minutes and hours after the shooting.  In those statements, both officers repeatedly and consistently stated that Officer Loehmann gave Tamir multiple commands to show his hands before shooting, and both officers repeatedly and consistently said that they saw Tamir reaching for his gun.  Both officers submitted written statements concerning the incident approximately a year later, and repeated these seminal points. Officers Loehmann and Garmback are the only two witnesses in the near vicinity of the shooting.

Civilian Witnesses

Only one civilian witness reported seeing any part of the fatal encounter; an additional witness said that she heard shots and heard commands after the shots.  However, the eyewitness’s two statements are inconsistent; the earwitness reported hearing three shots; both witnesses were approximately 315 feet away; and neither of them stated that they saw Tamir’s movements immediately preceding the shooting

Expert Witnesses

• Video Expert

An expert forensic video analyst analyzed the video evidence, which consists of compressed time lapse footage. He identified numerous technical variables that can result in the misinterpretation of the images by an untrained observer of compressed video images.  He noted that the time lapse footage consists of a series of stills, with approximately two stills captured per second.  In analyzing the relevant video footage in this case, the expert found that, throughout the two camera recordings, the refresh rate in which the video captures a new still image varies from approximately one image per second to up to eight images per second. [1]  He further stated that there is no foundation to establish the precise timing from image to image. As a result, the video in this system is referred to as a ‘variable refresh rate recording.”

Thus, even when the video was enhanced to the still frames, there are unknown time gaps of up to a full second between each frame. The video and the corresponding still frames are incapable of capturing the nuances of continuous action.

• Use of Force Experts

Seven experts reviewed this case and opined on whether Officer Loehmann’s use of force was objectively reasonable or unreasonable: four of whom were hired by the CCPO and agreed that the shooting was objectively reasonable; three of whom were retained by the Rice family and agreed that the shooting was objectively unreasonable.  Because the experts relied heavily on the poor-quality video of the incident and reached different conclusions about what it showed, their conflicting opinions added little to the case, other than to solidify the conclusion that the video evidence is not dispositive and is insufficient to establish beyond a reasonable doubt what Tamir was doing in seconds before he was shot.

Analysis Regarding a Deprivation of Rights Under Color of Law

In order to establish a federal civil rights violation, the government would have to prove that Officer Loehmann’s actions were unreasonable under the circumstances, and that his actions were willful.  As noted above, caselaw establishes that an officer is permitted to use deadly force where he reasonably believes that the suspect posed an imminent threat of serious physical harm, either to the officer or to others.  Here, in light of the officers’ explanations that Officer Loehmann shot because it appeared to him that Tamir was reaching for his gun, the government would necessarily have to prove beyond a reasonable doubt that 1) Tamir was not reaching for his gun; and 2) that Officer Loehmann did not perceive that Tamir was reaching for his gun, despite his consistent statements to the contrary.  The evidence is insufficient for the government to prove this.

To fully assess whether this shooting constituted an unreasonable use of force, career prosecutors closely examined, among other things, the evidence concerning the movement of Tamir’s arms and hands just prior to the shots.  As mentioned, the video footage is of extremely poor quality and has gaps in time of up to one second.  The footage does not establish that Tamir was drawing a weapon from his waistband; however, the footage also does not establish that Tamir was not reaching for a gun when Officers Loehmann and Garmback state that he was doing so. 

The evidence in this case fails to definitively establish what happened at the time of the shooting. Both officers have consistently and repeatedly maintained that they saw Tamir reach for his gun.  The toy gun was found on the ground near where Tamir fell, suggesting that it was on his person and that he handled it after standing up beside the picnic table.  The video evidence is simply not definitive on Tamir’s movements at the relevant time. Multiple experts examined the grainy, non-continuous, indistinct video in which the patrol car blocks part of the view at the relevant time.  Those experts differed in their opinion of what Tamir was “likely” doing with his arms and hands, but all agreed that his arms were moving and that his hands, though not visible, would have been in the general area of his waist.  The experts’ opinions were of little assistance in assessing criminal guilt, because their analysis amounted to a 20/20 hindsight review of still frames from a non-continuous video that could not, and does not, capture all that happened in the relevant time period of approximately two seconds, but nevertheless portrays Tamir’s hands in the vicinity of his waist just prior to the shooting.  Further, the civilian witnesses shed little light on Tamir’s actions just before he was shot.

Based on this evidence and the high burdens of the applicable federal laws, career prosecutors have concluded that there is insufficient evidence to prove beyond a reasonable doubt that Tamir did not reach for his toy gun; thus, there is insufficient evidence to establish that Officer Loehmann acted unreasonably under the circumstances.

As noted above, in analyzing a potential charge under 18 U.S.C. § 242, federal investigators must also consider whether the evidence proves the statutory element of willfulness — meaning, that, in shooting Tamir, Officer Loehmann knew what he was doing was wrong and chose to do it anyway.  As noted above, an accident, a mistake, an officer’s misperception, or even an officer’s poor judgment or negligence does not constitute willful conduct that can be prosecuted under this statute. 

Even if the government were to accept entirely the conclusions of the expert who opined that Tamir had his hands in his jacket pockets as he approached the patrol car, prosecutors would still be unable to disprove Officer Loehmann’s consistent statements regarding his own perceptions of Tamir’s movements.  Within a minute of the shooting and with no opportunity to reflect, view video, or discuss the matter with others, Officer Loehmann said that he fired in self-defense and had no choice.  He has given multiple additional statements, in which he has consistently maintained that he shot because he believed that Tamir was drawing a weapon; there is insufficient evidence to refute that central point. 

Similarly, Officer Garmback has maintained since moments after the shooting that he heard Officer Loehmann give repeated commands to Tamir to show his hands, and that he saw Tamir reaching for a weapon in his waistband.  Both officers sought cover from the patrol car, held Tamir at gunpoint for approximately 15 seconds, and generally responded to the incident in a manner consistent with their stated belief that Tamir was drawing a gun. 

For many of the same reasons the evidence is insufficient to prove beyond a reasonable doubt that the shooting violated the Fourth Amendment, the evidence is also insufficient to establish beyond a reasonable doubt that the officers acted willfully.  Even if federal prosecutors could definitively prove that Tamir did not in fact reach toward his waistband to draw his toy gun, the government could not establish that Officer Loehmann did not perceive that Tamir did so.   

Analysis Regarding Obstruction of Justice

Career federal prosecutors also reviewed the evidence to determine whether there was sufficient evidence to prove that Officers Loehmann and/or Garmback obstructed justice in their statements to law enforcement officers.  These career prosecutors concluded that it did not.

In order to prove obstruction, the government would have to prove the officers knowingly made false statements, and that they did so with the intent to obstruct a federal investigation.  As previously noted, the officers each gave multiple statements to law enforcement officers on the day of the incident, starting within a minute or so of the incident, without time to reflect, discuss, or view video.  They each provided a written statement approximately a year later.  Some of their statements are more detailed than others, and with slightly different verbiage, but all of which were generally consistent, particularly on the seminal facts.  As the experienced career prosecutors who reviewed this matter know, when witnesses give multiple statements, there are almost always inconsistencies due to the fallibility of the human memory. 

Because there is insufficient evidence to establish that the statements by Officers Loehmann and Garmback are in fact untrue, there is also insufficient evidence to establish that they knew them to be untrue or that they made them with the intent to obstruct the investigation.

In sum, after extensive examination of the facts in this tragic event, career Justice Department prosecutors have concluded that the evidence is insufficient to prove beyond a reasonable doubt that Officer Loehmann willfully violated Tamir Rice’s constitutional rights, or that Officers Loehmann or Garmback obstructed justice.  In this case, the U.S. Attorney’s Office for the Northern District of Ohio, the Justice Department’s Civil Rights Division, and the FBI each devoted significant time and resources to examine the circumstances surrounding Tamir Rice’s death and to completing a thorough analysis of the evidence gathered.  The Justice Department remains committed to investigating allegations of excessive force by law enforcement officers and will continue to devote the resources required to ensure that all serious allegations of civil rights violations are thoroughly examined.  The department aggressively prosecutes criminal civil rights violations whenever there is sufficient evidence to do so.

[1] For comparison, most modern video captures approximately 60 frames per second.

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Justice Dept. Is Said to Quietly Quash Inquiry Into Tamir Rice Killing

Supervisors denied civil-rights prosecutors’ request to use a grand jury for their investigation into the 2014 shooting of a Black boy by a Cleveland police officer, but did not tell his family.

By Charlie Savage and Katie Benner

WASHINGTON — The Justice Department decided more than a year ago to effectively shut down its civil-rights investigation into the high-profile killing of Tamir Rice , a 12-year-old Black boy carrying a pellet gun who was shot by a Cleveland police officer in 2014, according to people familiar with the matter.

Career prosecutors had asked in 2017 to use a grand jury to gather evidence in their investigation, setting off tensions inside the department. In an unusual move, department supervisors let the request languish for two years before finally denying permission in August 2019, essentially ending the inquiry without fully conducting it.

But more than a year later, the department has yet to take the bureaucratic steps to close the case, like completing a draft memo explaining why it declined to indict anyone. And it has not told the Rice family or the public that it will not charge the police officer.

Subodh Chandra , a former federal prosecutor who is representing the Rice family, said Tamir’s mother, Samaria Rice, was devastated. “When Samaria Rice heard the news, she cried out repeatedly, ‘I’m not ready for this!’” Mr. Chandra said. “The federal investigation was her last hope for justice. Accountability was so important to her and her family.”

The Justice Department’s press office declined to comment. Henry Hilow, a lawyer for the Cleveland Police Patrolmen’s Association who represented the two officers involved in the case, did not return a phone message left with his assistant on Thursday.

Tamir Rice’s killing became a touchstone in the national debate over race and policing and prompted protests. But the prospect of bringing a federal case against Timothy Loehmann, the officer who shot him, was broadly seen as challenging because prosecutors would need to prove that he had intentionally violated Tamir’s civil rights. His pellet gun looked real, a 911 dispatcher had failed to relay that it might have been a toy wielded by a juvenile, and Officer Loehmann shot him immediately upon arriving .

The investigation had stagnated in the final year of the Obama administration. President Trump’s two attorneys general, Jeff Sessions and William P. Barr, have set a tone that their Justice Department will not aggressively police the conduct of local law-enforcement officials, but the matter was apparently handled by civil rights division supervisors. A former department official said Mr. Sessions was never briefed about prosecutors’ request for permission to use a grand jury, and a current one said the same about Mr. Barr.

State prosecutors have broader latitude to charge police officers with crimes based on lower standards of proof, like manslaughter resulting from recklessness. But in late 2015, the Cuyahoga County prosecutor announced that a grand jury, on his recommendation, had decided not to charge Officer Loehmann with any crime under state law.

The outcome upset lawyers for the Rice family, especially after the disclosure that the prosecutor apparently permitted the police officers to read prepared statements before the grand jury without cross-examining them . The Rice family asked for a federal civil-rights investigation, and the Justice Department said it was conducting a review.

Since then, Cleveland agreed in 2016 to pay $6 million to the Rice family to settle a lawsuit, and Officer Loehmann was fired in 2017. But the Justice Department has been largely silent about what was happening with its investigation.

Current and former officials familiar with the matter, speaking on the condition of anonymity to discuss internal deliberations, described a dysfunctional and delayed effort. They spoke in response to inquiries by The New York Times after it learned that David Z. Seide, a lawyer representing a person familiar with the case, filed a whistle-blower complaint with the Justice Department’s inspector general, Michael E. Horowitz, accusing the department of mishandling the matter.

Mr. Seide, a senior counsel at the Government Accountability Project, which assists whistle-blowers, approached The Times after the inspector general’s office informed him last week that it would not investigate the complaint. Lawmakers have not empowered Mr. Horowitz to scrutinize allegations of ethical violations and professional misconduct by department lawyers. (Congress is weighing legislation to expand his jurisdiction; Mr. Barr has objected to it.)

The case stagnated throughout 2016, the final year of the Obama administration, according to the interviews, including with Mr. Seide’s client. One factor, several people said, was that federal law enforcement officials in Ohio were reluctant to further pursue Officer Loehmann.

The Justice Department had obtained a so-called consent decree to overhaul the Cleveland Police Department on matters like training and wanted to focus on such systemic issues. In addition, officials recognized that it would be difficult to prove intent to meet the legal standard to convict the officer of a federal civil-rights crime, they said.

Other people familiar with the case said another problem caused delays: The civil rights division needed to gather and review local investigative files. Local officials, they said, had dragged their feet in turning over all the evidence.

In 2017, after Mr. Trump took office, the civil rights division reassigned the investigation to two career prosecutors, Jared Fishman and Nick Reddick. They began trying more aggressively to gather further evidence.

One angle they proposed exploring was whether Officer Loehmann and his partner had given statements whose accuracy was subject to scrutiny for potential obstruction of justice charges; if so, the department could leverage them to build toward civil-rights charges. In particular, they wanted to know the extent to which Officer Loehmann had clearly and repeatedly warned Tamir to put his hands up before shooting him, as the officer claimed he had.

Under Justice Department rules, criminal prosecutors with the civil rights division must receive permission to use a grand jury to subpoena for documents or witness testimony. In mid-2017, the people said, Mr. Fishman and Mr. Reddick wrote a roughly 20-page memo analyzing the case and requesting permission to pursue a grand jury investigation.

Two career supervisors in the section concurred with the request, the people said. They submitted the memo to Robert Moossy Jr., a deputy assistant attorney general, who, although a career official, works alongside Mr. Trump’s political appointees who run the division.

Typically, the people said, such a request is approved or denied within a few weeks. But no one responded to the memo. In fall 2018, the career prosecutors submitted a supplemental memo of about equal length that contained additional evidence and analysis making the case that a grand jury investigation was justified, the people said. But that memo also yielded no response.

The inaction prompted suspicions among career lawyers that political appointees were running out the clock: The statute of limitations generally expires after five years for obstruction charges, and the officers made their statements in 2014 and 2015. But they had no direct knowledge of the discussions within the division’s front office — which was first led by John Gore and then Eric S. Dreiband after October 2018 — nor about interactions, if any, regarding the case with the attorney general’s office.

In July 2019, Mr. Barr decided that the department would not seek an indictment of the New York City police officer who had put Eric Garner into a chokehold in July 2014, ignoring his cries of “ I can’t breathe ”; Mr. Garner passed out and was later pronounced dead . Shortly after that public announcement, the people said, word reached the career ranks that their request to use a grand jury to investigate the Rice case had been denied.

Another department official, defending its handling of the Rice investigation on the condition of anonymity, noted that the matter was still not technically closed and suggested that the department might, in theory, someday change course and empower prosecutors to use a grand jury after all. Still, Mr. Seide said the statute of limitations for the final statements that might yield potential obstruction charges would expire by year’s end.

In one respect, the Garner case was similar to Tamir Rice’s killing: In both instances, federal law enforcement officials who worked with the local police departments were more reluctant than civil rights division prosecutors in Washington to pursue a federal police brutality case. In another respect, it was very different: The Garner case received a full grand jury investigation, while the Rice case was quashed without one.

Mr. Chandra said the “stench of political interference hovers over this case” and called the outcome tragic.

“It was devastating to learn that this supposedly ‘law-and-order’ administration defied the judgment of career prosecutors, slow-rolled the investigation to let the statute of limitations run out, hid from the crime victim’s family its decision not to prosecute, and let the officers get away with murder and obstruction of justice,” he said.

Charlie Savage is a Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.” More about Charlie Savage

Katie Benner covers the Justice Department. She was part of a team that won a Pulitzer Prize in 2018 for public service for reporting on workplace sexual harassment issues. More about Katie Benner