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by Peter Moskos

October 11, 2015

Tamir Rice shooting "reasonable"

From when it happened I said the police shooting of Tamir Rice -- though tactically shameful and morally tragic -- was "reasonable." That didn't make me too many friends outside the police world. But "reasonableness" is judged from the perspective of a reasonable police officer. And now outside two reports have come to a similar conclusion. They "justify" the shooting (in a legal/constitutional sense, not in a moral or good policing sense).

From the Times:
The reports released Saturday night — one written by a retired supervisory special agent with the F.B.I., the other by a Colorado prosecutor — examined the shooting’s legality under the United States Constitution, not Ohio law. But each reviewer found that Officer Loehmann had been placed in a volatile situation with minimal information and had acted reasonably in shooting Tamir.
The decision to pull the cruiser so close to Tamir and the dispatcher’s failure to relay some of the caller’s caveats were worthy of further review and were potentially relevant in civil court, but should have no effect on the evaluation of whether Officer Loehmann was criminally culpable for shooting.

I wrote about it here, here, and here: "So this was bad policing. But that doesn't make it a bad shooting." Norm Stamper said pretty much the same thing: "A more mature, experienced, confident police officer would have better understood what he was facing.... [But] if you point a gun at a police officer, you have punched your ticket. I don’t care if it’s a toy gun."

I also said this:
Here's what you don't do: drive right up to that person on muddy slippery ground to put your partner in an unprotected and defenseless position a few feet from the suspect.
The problems here abound. The dispatcher didn't relay information that the caller said the gun was "probably fake." That could have have changed things. By my main problem with the police here is driving right up to an armed suspect. The only reason to do that is to drive into the armed suspect.

Why would you drive in a snowy park to put yourself on slippery turf within feet of an armed suspect?! It makes no sense. You should do everything you can so you do not put yourself in what James Fyfe called a "split-second decision." Because that is when mistakes are made.

So you park your friggin' car half a block away and approach on foot. Why? Because your aim is probably better than his. Why? Because you can suss the situation. Why? Because you can issue commands with distance on your side. Why? Because you might notice that it is a 12-year-old kid. And while that may mean nothing, it increases the chance you notice it's a fake gun. Why? Because you shouldn't be a lazy f*ck, you lazy f*ck!


KSR said...

Tough call but your original description of 'shit driving put the shooter in a bad position' stands, so why isn't Shitty Driver fired? I get the circumstances, but as you described this was avoidable. The problems people have with police shootings is the corporatization of responsibility while defending the shitty individual. Almost certainly a Union issue; but a problem nonetheless.

Moskos said...

Good question. I wonder what happened to shitty driver. I hope *something*. Indeed yes, if he wasn't punished for bad policing that led to a fatal shooting, that would be wrong. I think the driver's actions were so bad it could rise to the level of negligence (and thus criminal responsibility). I mean it's immediately apparent, at least to every reasonable police officer I've spoken to, what the driver did wrong. There's really no excuse for what he did.

But I disagree that we're corporatizing responsibility. I think it's the opposite. The corporation (be it society or a police department) should be blamed. And time and time again (not just in this case) we try and prove this collective blame by putting selected individual police officers on criminal trial. Not only isn't it fair, it doesn't work. More often than not the individual officer is not criminally guilty. But that doesn't mean the whole damn system is not-guilty!

Concerned citizen said...

To me the key is, what exactly did the dispatcher say to the policemen?

If somebody here has a link to a transcript of the dispatcher's words, much appreciated if you could post it.

Adam said...

Here's the audio: http://www.wkyc.com/story/news/local/cleveland/2014/11/26/tamir-rice-cleveland-police-radio/19547085/

I also blame the driver more than the shooting officer (unless he said "Hey driver, pull up right next to that guy."). It seems hard to argue that the driver wasn't negligent, but civil negligence is different than criminal negligence (which has to be "gross" negligence). The problem with establishing either civil or criminal negligence is the concept of intervening/superseding causation. The officers' decision to drive up next to Tamir was probably a "but for" cause of his death, but was it the proximate cause? If Tamir was pulling what looked like a gun out of his waistband in response to the arrival of the officers, it's possible the answer is "no." (I'm not confident enough in my knowledge of that area of law to have a strong opinion). My gut reaction is that the cops (and the dispatcher) screwed up badly and the family deserves a big payout from the city, but there aren't grounds for criminal charges against either officer.

David Woycechowsky said...

You and I are basically in agreemen about this. And I have said the same things you have said in different words.

What is probably our difference: I think that the driver of the police car (46-year-old Frank Garmback) should go to prison (not jail, prison) for 12 months (give or take two months).

Also, Loehman should have taken cover down on the floormat instead of firiring, but I don''t think that misjudgement is criminal -- if Garmabck went to prison than that would be punishment enought towards Mr. Loehman for his bad (but probably not criminal) judgement.

This outcome where NO popo's go to prison is ridiculous.

Moskos said...

Personally, I think an outcome where *any* cop goes to prison after responding to an armed person call and seeing a kid holding a (what looks to be real) gun is ridiculous. But what do I know?

But I wouldn't have a problem with serious discipline, firing, and big $$$ paid out.

David Woycechowsky said...

Okay, I disagree, but whatevs.

But how about the somewhat similar case where Officer Little fired his taser (and clearly should not have) and the ensuing chain of events caused Officer Kerrick to shoot Ferrell (who was unarmed) ten times and kill him?

Should Officer Little get prison time?

Does a policeman always get off if he wasn't the one who pulled the trigger?

Do you see the problem with that kind of thinking?

Moskos said...

I'm not familiar with that case.

And keep in mind, my bar on who I think should spend 12 months locked in cage at taxpayer expense is very high. And that has nothing to do with policing.

David Woycechowsky said...

worth watching / reading for anyone interested in policing issues:



David Woycechowsky said...

I should add, because this is not immediately perceptible on a first viewing of the video, that Ferrell did not run until a taser was fired at him (and missed).

Concerned citizen said...

You believe the driver should go to prison for 12 months?

This is what he was told by the dispatcher:

“I’ve got a code 1, if anybody can break at Cudell. In the park by the youth center, there’s supposed to be a male sitting on the swings, pointing a gun at people...black male, he keeps pulling a gun out of his pants and pointing it at people."

So, hearing this, the driver made the tactical error of driving up too close to this person--a person whom he had every reason to believe to be dangerous--and for that tactical error, he should go to prison for 12 months?

From every standpoint except the public relations standpoint, it's irrelevant that Tamir Rice was 12 years-old. He was 5-7, 195, and had been reported to be pointing a gun at people across the street from a youth center.

bacchys said...

This is a bullshit decision made without any query into whether their actions were "reasonable." The cops pulled up- stupidly- into an area where they supposedly felt threatened, and the trigger happy nutjob came out shooting.

There's nothing reasonable about stupid.

Moskos said...

Strangely, I think you're both right!

David Woycechowsky said...

Concerned Citizen: If it helps you to look at it this way: (i) it should have been 6 months for the risk he was putting Loehman in; and (ii) 6 months for the risk he was putting Rice in.

Adam said...

bacchys: did you read the reports? I'm guessing you didn't. And I'm not judging you for not reading them. I mean, I didn't either. I'm busy. But I wouldn't be so quick to say what the reports did or didn't address without at least opening them and doing a "control+F" search for "reasonable." (There are 40 hits between the two reports):

Sims report
Crawford report

Or maybe you're just saying the shooting doesn't seem "reasonable" to you, as you understand that word. I can understand that, but words like "reasonable", "reckless", and "negligent" have different meanings in law and in everyday speech. I agree that two cops rolling up and shooting a 12-year-old with a toy gun sounds very "unreasonable" in layman's terms, but a reasonableness determination, in the context of deciding whether to charge the shooting officer with a crime, is something very different.

If I were inclined to charge anybody (which I'm not), I'd charge the driver. But with what? (David?) Reckless endangerment? Recklessness is the "conscious disregard of a substantial and unjustifiable risk." I don't think the driver "consciously" disregarded anything. His actions sound more like negligence, which would mean he failed to apprehend a risk that a reasonable person (in this case, you could say a reasonable cop) in his shoes would have been aware of. But there's no "negligent endangerment" charge that I know of. Negligent homicide, maybe? Then you run into the problem of intervening and superseding causes. If you want to charge a cop with criminal homicide when he didn't directly kill anybody, you have to do better than something like "and the ensuing chain of events caused..."

That Fuzzy Bastard said...

It's as reasonable as the execution of Ali al-Nimr, and as justifiable as the clearing of the Warsaw Ghetto: okay under the law, thus demonstrating the vileness of the law. The law has created a situation where it is easier and safer to kill an innocent person than to do your job. Which means innocent people will keep being killed.
The real lesson here is to the people in those projects (and anyone else who was paying attention): Don't call the cops. Unless you are willing to see the person you're calling them on dead. If someone is dealing drugs in your lobby, throwing trash on your lawn, robbing cars, whatever, ask yourself if you are okay with them being shot dead for it, and if the answer is no, don't call the cops.
So crime will get worse, and civilians will be hurt by it. All because the legal system has created a situation where cops will weigh the dangers of not shooting (some) with the dangers of wrongly shooting (none at all).

That Fuzzy Bastard said...

That said... You're right that it's more important to see where the system is guilty than where the individual officers are guilty. Figuring out what it is about the legal definition of reasonable that lets everyone walk away clean from the death of an unarmed 12-year-old is the most important thing.
But you don't reform a system without holding individuals accountable. Many a crack dealer was produced by an unjust system, but that isn't a legal defense.

Concerned citizen said...

An unacknowledged issue here is how perceptions are colored by two different lenses: white collar college-graduates vs. blue collar HS graduates

There is a tendency among white collar/college-graduates to snobbishly decry the low-class behavior of pudgy donut-eating cops and their ilk, such as construction workers, etc.

It's the same class bias that makes it permissible for professors to utter the words "trailer trash" and "plumber's crack" in the faculty lounge.

Fortunately, Prof. Moskos has walked a mile in the moccasins of cops in the hood, which lends an uncommon balance to the dialogues on this site.

john mosby said...

Good point, Concerned Cit. This echoes something I brought up a few weeks ago and related to Prof Moskos the Elder's work on military sociology and the military/civilian divide, which is also class-ist.

Maybe one of these days policing can go thru the perception change that nursing has gone thru. Nursing is now seen as a profession with credentials, a self-regulating body of standards, and high public respect. Indeed, nurses probably get more public respect than doctors these days. If you think about it, policing is to lawyering as nursing is to doctor-ing: the business end of some pretty esoteric stuff.

Heck, even chefs get more recognition as a profession than cops do.

Of course, patients ask nurses to treat them. Diners ask chefs to cook for them. Nobody asks the police to stop them.

But still: the sooner police are seen as a profession that's part of the elite, not a trade that serves the elite, the better off cops will be.