CLEVELAND (CN) – Protesters will gather Tuesday afternoon outside the office where a grand jury refused to indict the Cleveland police officers for the killing of Tamir Rice.
Hours after announcing the grand jury’s decision Monday, Cuyahoga County Prosecutor Timothy McGinty released a 74-page report summarizing the details of the investigation and providing an analysis of why the prosecutor recommended against bringing charges against Officers Timothy Loehmann and Frank Garmback.
“We have recommended against bringing criminal charges to the Grand Jury because we do not believe that any reasonable judge or jury would find criminal conduct in Officer Loehmann’s reaction to a suspect pulling what he thought was a gun,” the report concludes. “Nor has any viable theory of criminal conduct been offered to explain why Officer Garmback would be criminally liable for Officer Loehmann’s use of deadly force.”
The police officers descended on the Cudell Recreational Center where 12-year-old Rice had been playing alone with a pellet gun on Nov. 22, 2014, after someone called the police.
Describing the shooting as “the culmination of a tragic confluence of events,” the report acknowledges, without explanation, that 911 call-taker failed to inform the police dispatcher that the “guy” with the gun was “probably a juvenile” and that the gun was “probably fake.”
“The 911 operator never told the dispatcher about the possibility that Tamir was a juvenile or that the gun was a toy, which led the two responding officers to believe a real man with a real gun was threatening innocent people’s lives at a recreation center,” the complaint states. “When the officers approached Tamir, he unexpectedly moved in their direction and began pulling out the gun from his waistband. The officers, who had no idea that the gun was fake or that Tamir was only 12, thought he was going to pull the gun out at them.”
To illustrate that Rice’s toy is nearly indistinguishable from an actual semiautomatic pistol, the report includes a photograph of the airsoft gun Rice was carrying alongside an actual .45 Colt M1911.
Jesse Wobrock, an accident reconstructionist retained by the Rice family and their attorneys, reviewed the available surveillance footage of the shooting and opined that Rice had his hands in his pockets at the time of the shooting.
Wobrock’s testimony contradicts the opinion of Grant Fredericks, a forensic video examiner retained by the prosecutor, who reviewed the same footage and determined that Rice was lifting his jacket with his left hand and reaching for the toy gun with his right hand at the time he was shot.
McGinty’s report also details the standards of review in cases involving police use of deadly force, highlighting the 1989 U.S. Supreme Court decision in the case Graham v. Connor, which states that that the reasonableness of the officers’ actions must be judged from the perspective of “the reasonable officer on the scene and not through the lens of 20/20 hindsight, allowing for the fact that ‘police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving.”
The report also cites a 2008 decision from the Sixth Circuit case Davenport v. Causey, which explains that “the officer must also be given some leeway when a court analyzes the reasonableness of his decision.”
“It is firstly important to remember what is a ‘reasonable’ belief could also be a mistaken belief, and that the fact it turned out to be mistaken does not undermine its reasonableness as considered at the time of the acts,” that case holds.
McGinty’s report says Loehmann and Garmback “were tragically mistaken about the key facts of the case.”
“They did not know until too late that Tamir was not a real threat to their safety or to the public’s safety,” according to the report. “But the law requires that they be judged according to what they knew at the time, and whether their actions based upon what they knew were reasonable under the Fourth Amendment.”
McGinty’s report also cites the Ohio Rules of Professional Conduct in defense of his office’s decision not to pursue criminal charges. They state that “the prosecutor in a criminal case shall not pursue or prosecute a charge that the prosecutor knows is not supported by probable cause.”
Protesters will gather outside the Justice Center on Tuesday at 3 p.m. About 30 participated in a peaceful march Monday afternoon that began outside the site of the shooting.
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