Screen Shot 2015-12-29 at 3.17.33 PMI haven’t written about the case of Tamir Rice in Cleveland, primarily because it seemed–as usual, judging by media accounts alone–to be a clearly justified shooting by a police officer. The social justice grievance industry did its best to stir up rage, but the facts of this case kept getting in the way, as the photo and tweet heading this article indicate. Rice’s toy gun is on the left. Consider this from Allahpundit at Hot Air:

It’s also true that the cops were never told [emphasis mine] what the police dispatcher heard when the 911 call came in about Rice, namely, that he was probably a kid and that his gun was “probably fake.” But the knock on the cops isn’t that they inexcusably mistook a gun that was obviously fake for a genuine weapon. The knock on them is that they rolled right up on Rice in their cruiser upon arriving at the park and had put a bullet in his belly within two seconds of confronting him, before they had made any reasonable attempt to gauge whether he was a true threat or not.

The Cleveland Plain-Dealer interviewed several police “experts” who, in watching the video of the encounter, believed the officers used poor tactics that contributed to Rice’s death. Their primary complaint seems to be that the officers drove too closely to Rice. I use quotation marks with “experts” not to impugn their character or qualifications–I know nothing about them–but because there are no consistent and universally accepted standards for what qualifies one to be an expert in such situations. An example:

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Thomas Aveni, executive director of the Police Policy Studies Council, a research-based consultation corporation based out of New Hampshire, also questioned why the officers got so close to Tamir so quickly. He said the poor quality of the video makes it difficult to create an accurate account of what transpired, but the officers may have shouted the commands through an open window.’

If Garmback had pulled to within, say, 75 feet of Rice and told him to drop his weapon, both sides would have had time to communicate. As it is, Loehmann claims he yelled at Rice repeatedly to show him his hands as the cruiser was rolling up and saw Rice reach into his waistband. Was that a threatening gesture or Rice’s ill-timed attempt to show them the gun was fake by producing it? No one knows because the close proximity left them no time to find out. As Rice’s elbow began to come up from his waistband, Loehmann (who’d been pressured into resigning from a different police force a few years earlier due to “dangerous loss of composure during live range training and his inability to manage this personal stress”) had to make a snap decision whether to fire. With more distance between them, he might not have. And if Rice’s gun had been real, greater distance would have potentially saved their lives: As one of the cops quoted in the excerpt above noted, a close-range confrontation benefits the suspect because he’s probably less skilled with a gun than trained officers are. In a shootout from 75 feet, you like the odds of two cops against one criminal. From 10 feet, it’s really just a matter of who draws first.

Actually, that assumption is incorrect, and while timing is important, “who draws first” isn’t the only issue. More about that shortly.

Let me remind you: An Ohio judge, when petitioned by law to issue his opinion of whether Loehmann and Garmback should be charged criminally, recommended four separate counts for Loehmann — including murder — and negligent homicide and dereliction of duty charges for both. Even if you blanch at the idea of calling what happened here murder, why don’t the ‘very poor’ tactics support one of the lesser charges? That’s what makes this incident so hard for many people to swallow, I think. A fatal confrontation probably could have been avoided with a more cautious approach, especially considering that there were no bystanders near Rice at risk of being shot.

But that’s half the story. The other half is the fact that the county prosecutor, Timothy McGinty, extended these two cops the same exceptional courtesy that Darren Wilson received in the shooting of Michael Brown — namely, he presented all the facts to the grand jury instead of only those facts most beneficial to the prosecution’s side. That’s good procedure, as it means someone who’s likely to be found not guilty at trial can go free sooner due to lack of probable cause.

A quick review of the facts:

Tamir Rice, a black 12-year old, did not look like a common 12 year old. He weighed 195 pounds and was at least 5’7” tall. From any distance, he looked much older.

Multiple witnesses saw him playing with and pointing a gun at people in a park–security video also recorded him doing it–and made 911 calls.

At least one caller said they thought that Rice might be “a kid,” and the gun might be fake, but the dispatcher did not relay this information to the two responding officers.

The officers reasonably believed they were facing a real threat from someone who had been threatening multiple people with a real gun.

Rice, who was in a sort of covered gazebo as the officers arrived (take the Hot Air link to see a video of the incident; warning: it is less than clear), approached them, and reached for his toy gun, pulling it from his waistband.

Rice stood up and was moving toward the approaching police vehicle even before it was within 30-40 yards of him, almost certainly making him seem aggressive to the officers.

Officer Frank Garmback, the driver of the police vehicle, testified that his vehicle slid on the ground and did not stop where he intended. The shooting was in November of 2014; snow was present and the ground and grass, wet.

Officer Timothy Loehmann, who shot Rice, testified that he, as the vehicle approached, repeatedly yelled at Rice though his open window to show the officers his hands, but Rice did not, and went for the gun.

Loehmann, followed by Garmback, exited the car and Loehmann fired within two seconds.

Consider this from the Guardian: 

McGinty [prosecutor] argued that Tamir’s death was caused by a ‘perfect storm of human error, mistakes and miscommunications by all involved that day’ but there was no evidence of criminal misconduct by police. The two officers believed they were responding to a ‘potential active shooter situation’ and had not been provided with crucial details of a 911 call reporting that Rice was probably a juvenile with a gun that was ‘probably fake’, McGinty said.

‘Had the officers been aware of these qualifiers, the training officer who was driving might have approached the scene with less urgency; lives may not have been put at stake,’ McGinty said. [skip]

McGinty argued on Monday that a grainy enhanced CCTV image of the moment before Loehmann opened fire showed it was ‘indisputable that Tamir was drawing his gun from his waist’. McGinty said this single image was ‘perhaps the most critical piece of evidence” in the whole case.

‘At the point where they suddenly came together, both Tamir and the rookie officer were no doubt frightened.’ McGinty said. ‘If we put ourselves in the victim’s shoes, as prosecutors and detectives try to do, it is likely that Tamir, whose size made him look much older and who had been warned that his pellet gun might get him into trouble that day, either intended to hand it over to the officers or show them it wasn’t a real gun.

‘But there was no way for the officers to know that because they saw events rapidly unfolding in front of them from a very different perspective.

ANALYSIS:

There is no doubt, based on the incontrovertible facts, that any reasonable officer in the same situation would have believed they were in imminent danger of serious bodily injury or death. Their actions, under Ohio law, were indeed reasonable. The video, mediocre as it is, and all of the evidence, supports the officer’s statements.

There are, however, several other issues. Garmback was Loehmann’s field training officer. Loehmann was a trainee. Garmback was driving the car; it was his decisions that put both of them close to Rice.

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There is no question that it is generally best to keep a safe distance from any potential criminal, and to approach them only when it is most advantageous for you. I always taught my trainees–I was a field training officer–that it is generally smart to observe an animal in its native habitat for a while before interacting with it. In that Cleveland situation, I would ideally have parked out of sight of Rice, and using the binoculars I always carried, watch him for a while.

If there was sufficient cover and/or concealment, I would have approached on foot, quietly, and kept Rice unaware of me as long as possible. I would not have confronted him without cover. I cannot tell from the video if that tactic would have been possible. Failing that, I would have approached in my vehicle, but stopped some distance away–how far would depend on a wide variety of factors present at the time–keeping my vehicle as cover between Rice and me.

The police experts are right: Garmback possibly should have used better tactics. So the officers should have been charged with murder? No.

In any situation, the issue is not–can never be–whether the officers acted absolutely perfectly, whether there was nothing that they, or the best police officer in the world, could have done differently. The issue is, and must be, whether their actions were reasonable under the circumstances as they or any reasonable police officer knew them, or should have known them, at the time.

Any other standard makes police work impossible. Who would become a police officer knowing that even if their actions were inherently reasonable, they could find themselves charged with felonies?

This factor is also present in the Freddie Gray case.  The prosecutions case rests almost entirely on the idea that because the Baltimore PD had a recently changed rule that required officers to use seat belts on arrestees, the officers in that case were inherently unreasonable in not using a seatbelt on Gray. This assertion is dangerous nonsense.

The officers could not have reasonably predicted that failing to use a seatbelt on Gray would result in his death. Few, if any, Baltimore officers use seat belts on arrestees, and prior to Gray’s death, no one else, in the history of the BPD–hundreds of thousands of arrestees– had ever been injured and killed as he was. This was a potential violation of internal policy, certainly not a crime.

In the Rice case, there was no policy violated by the officers. The argument for charges is that the officer’s inadequate tactics–actually, Garmback’s–put them in a position where their only choice was to shoot Rice when he pulled his gun.

Time and distance are important to a police officer. So is training. Remember this?

…a close-range confrontation benefits the suspect because he’s probably less skilled with a gun than trained officers are. In a shootout from 75 feet, you like the odds of two cops against one criminal.

These assumptions are far from universal truths. A great many citizens are far better at tactics and shooting than police officers. There are many well-documented cases where officers and suspects emptied their guns at each other at inside-a-phone-booth ranges, and hit nothing but the surrounding scenery. In a 2012 article, I wrote about a case where two NYC officers shot and killed an armed murderer at very close range, but in the process shot and wounded nine innocent bystanders.

In a shootout from 75 feet–25 yards–most police officers wouldn’t be able to reliably hit a person. Twenty-five yards may not sound like much, until one paces it off and sees how small a human sized target appears at that range. Very little police handgun training and qualification requires shooting at 25 yards. And if two officers had shot Rice rather than one, imagine the outrage that would have provoked.

In the Rice case, I would certainly have preferred to be at least 10 yards from Rice with a police car between us. But even then, even at 25 yards, if Rice pulled his gun, as the evidence clearly shows he did, I would have been completely justified in shooting. Would I have expected him to be able, reliably, to hit me at great distance. No, but there is always such a thing as a lucky shot, and a handgun can easily be deadly out to 100 yards, perhaps more.

Could I have waiting an extra few seconds to perhaps work out another outcome? Perhaps. During my police days, I was very, very fast. I knew exactly how many fractions of a second I had in those situations, and I hit what I aimed at, but I practiced dry firing and drawing every day. Most police officers don’t have those skills. I gained them through constant, daily practice at my own expense. Most police officers practice only once or twice a year when required. But even at that distance, if Rice fired, I would have had to duck, giving him time to charge me and get into a potentially superior position that would negate any advantage of cover.

Would I have recognized Rice’s gun as a toy? Unlikely. I was and am far better acquainted with firearms that most police officers, but the circumstances of this case make that kind of positive identification–by anyone–very unlikely indeed. The law doesn’t even require that the suspect have a gun.

Once while dealing with a man determined to commit suicide by cop, the man executed a drawing stroke while reaching behind his right side. I yelled “gun” while simultaneously leaping behind nearby cover and drawing, and because of my training, had the time to recognize that the man was holding only a black billfold. His movements and the way he held the billfold and thrust it toward me looked exactly like someone pulling and pointing a handgun, which was exactly what he intended. I didn’t shoot him, but if I had, I would have been completely justified. My fellow officers were still standing still, dumbfounded by what they witnessed.

The point is, better tactics might have given the officers a potentially better outcome, but they may not. That was not a certainty upon which any reasonable police officer could depend. Without question, officers should always give themselves, through smart tactics, every opportunity possible, but things don’t always work to officer’s advantage. Sometimes, even the best tactics aren’t enough.

That doesn’t mean that the officers should not face internal discipline, and certainly, retraining. The Cleveland PD surely has cause to wonder about the wisdom of Officer Garmback continuing to train new officers. He put Officer Loehmann in the position of having to shoot.

One person alone was responsible for Tamir Rice’s death: Tamir Rice. The facts and the law support it.

Tragedy? Certainly. Could better tactics have prevented his death? Maybe. There is no way to know.

As in the Gray case, regardless of any criminal charges or department discipline, their lives, and the lives of their families, are forever changed for the worse. It’s highly unlikely they’ll be able to continue in the Cleveland PD. Their police careers may be over anywhere. They are surely going to be sued civilly, and the Obama Department of Justice will not let an opportunity to get its claws into these officers, and another major American law enforcement agency, pass.

The Cleveland PD, and officers everywhere, have lessons to learn from this case. But the most important lesson for any citizen is never to place police officers in a situation where they will have to decide, within seconds, whether you live or die. Trust me when I say that most aren’t prepared, in training or temperament, to give you the extra fractions of a second necessary to survive. Very often, the police will be right in shooting.

The protests and racial turmoil relating to this case will not soon diminish.  There is too much political advantage to be exploited, and the potency–and danger–of the Ferguson Effect grows.

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