By Emmanuela Jean-Etienne
Associate Editor, Vol. 21

On a cold November afternoon in Cleveland, twelve-year-old Tamir Rice sat alone at a gazebo outside the Cudell Recreation Center, a place he frequented daily.[1] In his hand was an airsoft pistol and, according to the witness who would later call 9-1-1, he was pointing it at cars and people as they passed by. The orange tip, which indicates that the gun is a toy, had broken off earlier in the day[2]. Two officers, 26-year-old Timothy Loehman and 46-year-old Frank Garmback, responded to a dispatch of a “male black sitting on a swing and pointing a gun at people.” Despite having the information, the responder did not mention that the male was “a juvenile” and that it was “probably a fake gun.”[3]

A video surveillance camera from across the street captured an officer shooting through the open car window even before the car came to a complete stop. Tamir Rice would die the following day. In the months to follow, the nation would learn that the officers who shot Rice did not administer aid, and that his distraught sister was tackled to the ground, handcuffed, and placed in a patrol car when she ran towards her brother to console him in the minutes after the shooting.[4]

The death of the twelve-year-old boy would take center stage amongst discussions of police brutality, body cameras, police training, and a demand to remove the discussion of racism out from under the rug where America has swept it.

In the immediate aftermath of the incident, one question left seemingly unanswered was whether the actions of the two police officers were reasonable. An independent report from the Cuyahoga County prosecutor’s office by a Colorado prosecutor and an FBI agent, released almost a year after Rice’s death, would answer in the affirmative.[5] The legal analysis is rooted in Ohio’s common law definition of self-defense and in case law on the application of the Fourth Amendment in police involved shootings. The report has prompted further outrage and protests from the Black community. Missing from the independent report, however, is social context. There is no discussion of race relations, despite findings of large “systematic deficiencies” in the Cleveland Police Department from a separate investigation by the United States Department of Justice, [6]our knowledge of implicit bias, and a perfect opportunity to discuss how race might have influenced the “reasonableness” of the police officers when they responded to the call.

In Ohio, self-defense is an affirmative defense that requires a defendant to prove three elements by a preponderance of the evidence: “1) the defendant was not at fault in creating the violent situation, 2) the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that her only means of escape was the use of force, and 3) that the defendant did not violate any duty to retreat or avoid the danger.”[7] The report concludes the officers fulfilled all the elements under the self-defense definition.

The report provides the application of the elements to the case without assessing the second element within context of larger systemic issues at play.

Case law has expanded our understanding of a bona fide, or reasonable, belief about imminent danger. Tennessee v. Garner established that when an officer has probable cause to believe a suspect poses a threat of serious physical harm, either to police or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. [8] Thus if the suspect threatens the officer with a weapon, deadly force may be used if necessary to prevent escape. The Court then found four years later in Graham v. Connor that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene… [and] must embody allowance for the fact that police officers are often forced to make split-second judgments…about the amount of force that is necessary in a particular situation.”[9]

Overall, reasonableness stems from what the officers believe to be true at the time of the interaction. Police officers are under a lot of stress and taking the time to evaluate the alternative, that there is a more innocent explanation for the scene, could also cost them their lives. The two officers thought that Rice was in possession of a potentially real gun and perceived his age to be between 18 and 20. [10][11][12] Yet still, missing from common and case law is implicit bias and how the perceived race of Rice may have contributed to the deadly interaction. What is left unsaid is that police officers are seven times more likely to shoot unarmed Black people than they are White people.[13] Black male bodies are viewed as older and more aggressive.

Interactions do not occur in a vacuum. Given the current national discourse on police brutality in the Black community and towards Black bodies, insights on race relations may offer a better evaluation of the reasonableness standard and address the concerns of the Black community and the perceived lack of justice from our criminal justice system when tragic events occur.

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[1] Memorandum from S. Lamar Sims, Esq., Investigation into the officer-involved shooting of Tamir Rice which occurred at Cudell Park, 1910 West Boulevard, Cleveland, OH, on November 22, 2014 (2015) [hereinafter Prosecutor Sims Report], available at http://prosecutor.cuyahogacounty.us/pdf_prosecutor/en-US/Tamir%20Rice%20Investigation/Sims-Review%20of%20Deadly%20Force-Tamir%20Rice.pdf

[2] Id. at 2

[3] Id.

[4] Rich Exner, Witness accounts in Tamir Rice investigation paint vivid picture of events. CLEVELAND.COM (June 13, 2015), http://www.cleveland.com/metro/index.ssf/2015/06/witness_accounts_in_tamir_rice.html

[5] Prosecutor Sims Report, supra Note 1, at 14

[6] Press Release, U.S. Dep’t of Justice Civil Rights Division, Investigation of the Cleveland Div. of Police, (Dec. 12, 2014)(on file with author)

[7] State v. Goff, 942 N.E. 2^nd 1075, 1082 (Ohio 2010)

[8] Tennessee v. Garner, 471. U.S. 1, 11 (1985) (while the report cites to this case, the holding has been viewed negatively by the courts.)

[9] Graham v. Connor, 490 U.S. 386, 396 (1989)

[10] Prosecutor Sims Report, supra Note 1, at 5

[11] Id. at 8

[12] Id. at 7

[13] Sandhya Somashekhar et al., Black and Unarmed, WASHINGTON POST, (Aug. 8, 2015), http://www.washingtonpost.com/sf/national/2015/08/08/black-and-unarmed/