The Tamir Rice Fiasco And “Ethics Zugzwang”

Gun comparison

There are circumstances in which all ethical options have been eliminated by poor choices and bad luck. Henceforth Ethics Alarms will refer to this dilemma as ethics zugzwang, zugzwang being a chess term for the situation where a player must make a move, and any move will worsen his position.

By the time the killing of Tamir Rice got to the grand jury, it was ethics zugzwang. The grand jury’s decision not to charge the two officers involved is troubling, and a decision to charge would have also been troubling. To get anything out of this utter and fatal fiasco, a lot has to change, and we have to recognize what in order to make those changes occur. It won’t be easy. I think it may be impossible.

There is no way that the justice system can do its job objectively and well when every police shooting involving a black victim is instantly labelled racist and murder by vocal activists, pundits and and social media, with the implied threat of civil unrest. If an indictment is handed down as in theFreddie Gray matter in Baltimore, it appears as if mob passions are manipulating the system, and, in the Gray case, it was. Such a result, in turn, makes it more difficult for the next accused cop to get justice. It estranges the police force from the government entity it serves, and makes police wary and less likely to assume the risks associated with their vital and inherently dangerous  job.

These considerations create their own impetus making a failure to indict more likely. A city cannot afford to be seen as not supporting the police, even when they make a deadly mistake in judgment. District attorneys are on the same team as police, and automatically share their perspective; it is important that the police recognize that. The police receive the benefit of every doubt, and the deserve that. Yet a failure to indict, especially now that police shootings have become high profile matters that every blogger and pundit prejudges according to their own biases and agendas, will inevitably be used to indict the system instead.

Rice’s death was the result of random and unfortunate factors that produced the worst possible scenario in the wake of Ferguson. The victim was an African American child who committed no crime, and his shooter and his partner were white. The boy was gunned down by Officer Timothy Loehmann within two seconds of his police cruiser stopping near the boy. Loehmann and Officer Frank Garmback, were responding to a botched relay of a 911 call. They were wrongly told about a man brandishing a gun, not a child waving a toy that looked like a gun. The harmless pellet gun was missing its telltale orange tip. Loehman was an incompetent, jumpy, trigger-happy police officer who should never have been hired. He and his partner did not follow responsible police procedure. Rice, who was not aware of his peril, did not know how to preserve his safety.

Could the District Attorney have legitimately persuaded the grand jury to deliver a criminal charge? No doubt: the crimes of reckless homicide and negligent homicide were available. It is unclear, however, to what extent these crimes do or should apply to police officers, because of the nature of their jobs, which forces them to become involved in situations where the involvement of a civilian would be inherently reckless. Those who argue that the same standards should apply to police as to everyone else are being neither fair nor realistic.

Despite the manner in which the story has been reported, despite the gut reactions everyone (including me) had when first hearing or reading about it, and despite the undeniable fact that a youth is dead who should not be and the police are at fault, the question of whether there was probable cause to charge either officer with a crime is a close one. Subodh Chandra, an attorney for the family, said yesterday that “This is apparently how long it takes to engineer denying justice to a family when the video of the incident clearly illustrates probable cause to charge the officer.”  I know he’s representing the family’s interests, but that’s an irresponsible statement that serves no one’s interests. It does nothing but increase tensions and misunderstanding, and it is typical of the atmosphere all of these tragedies now take place in. The result is that any chance of unconflicted handling of them by the justice system evaporates.

Public opinion, pundit rants and media coverage make the situation worse still. It is apparently impossible to report the story without misrepresenting it.  Here’s the first paragraph of the Los Angeles Times story today:

“A grand jury Monday declined to indict a white rookie police officer in the killing of  Tamir Rice, a 12-year-old black boy who was shot while playing with what turned out to be a pellet gun.”

This is accurate, but inherently taints an objective view of the event. There is no evidence that the races of the officers and the boy were relevant or a factor in the shooting, except that African American activists and progressives are presuming racism.. (But media reports on the mob of unruly teens that descended on a Kentucky mall over the weekend and forced it to close didn’t mention the predominant race of the kids involved. ) The officer had no way of knowing that Tamir was 12, or a boy, or playing. ThinkProgress, a left wing blog, says that the officer “gunned down” the child, who was “carrying a toy gun.” Jezebel falsely takes this to the next step, writing that “twelve-year-old Rice was shot to death by Tim Loehmann on the playground after Loehmann and fellow officer Frank Garmback saw him playing with a toy weapon.” No, they didn’t know he was playing with a toy, so it is misleading to say they saw him doing it. What they saw was a man waiving a gun around. What they saw is what matters in determining whether they committed a crime or not.

Twitter accurately describes the negative public reaction to the no-charge decision, with race-baiting New York Times columnist Charles Blow and BlackLivesMatters members leading the tumult. Essentially every angry tweet shows either a presumption of racism, a misunderstanding of the justice system (the D.A. is not supposed to be an advocate for the victim: his client is the public), an emotional response rather than a reasoned one, or a reliance on irrelevant facts.

This tweet is  typical of the mindset and bias:

Tamir Rice tweet

The tweeter seems to think this constitutes an argument. It doesn’t. It is a collection of unjustified assumptions. Michael Brown, the facts showed, was shot in self defense. There was no intent to kill Eric Garner. The police officer whose trial ended in a hung jury in the Freddie Gray prosecution was one of six charged, he will be retried, and had the weakest of the cases against him, which accounts for the jury deadlock. Sandra Bland committed suicide, and there is still a possibility of charges regarding her arrest. In none of the cases has racial bias been shown, indicated, or proven. This is the Texas Sharpshooter fallacy, at best. The cases have no relationship to each other, and collectively have no lessons to teach.

Personally, I would have liked to see the officers charged with negligent homicide. However, I offer these questions and answers:

Q—Should the fact that Rice was a child matter in determining whether there was a crime committed?

A–No. The police had no way of knowing he was a child, since the 911 operator miscommunicated what had been called in, a likely child waving around a probable toy.

Q—Is the fact that the gun wasn’t a real gun relevant?

A—No. It looked exactly like a gun (see above), and in determining whether the officer had a reasonable fear when the child appeared to be taking it out of his pants, that is all that should matter.

QIs the fact that Rice was black and the police were white relevant to the commission of a crime?


Q—If, after the shooting, it had turned out that Rice was an 5’7″ adult carrying a loaded gun, would there be the same uproar and accusations?

A—No. Yet the difference between this hypothetical and what actually occurred is moral luck, and completely outside the control of the officers.

QWould the officers’ breach of proper police practice resulting in the fatal shooting be greater or lesser if it had been a real gun?

AIt would be exactly the same.

QIf Tamir Rice were white, would this be a national story?


Q-If he were white, would there have been an indictment?

A—Good question. Maybe so, because the justice system would not have been operating under the threat of protests, conflicted, and facing damaging consequences no matter what it determined was the right course.

That is, in ethics zugzwang.


Sources: Jezebel, Hot Air (Allahpundit), Think Progress, Kansas City Sun Times

79 thoughts on “The Tamir Rice Fiasco And “Ethics Zugzwang”

  1. Watch the video. The police officers did not see him playing with a toy gun gun. They did not see him playing with *any* gun. By the time the police officers were on the scene, Rice was just sitting there at the table, and no gun was in sight.

    They had no way of knowing if Rice was even the person they were called about before they pulled up and shot him from the car. That’s what makes it negligent homicide, at the very least. He literally could have been anyone. Watch the video.

    • I’ve watched the video. How can you say that? He is up from the table and walking in front of it when the car pulls up, and the enhanced video appears to show him going to his pants. The fact that they shot him suggest that they knew he was the one, probably because he had a hand on the toy.

      Either way, I’d say it’s probably cause for negligent homicide. The question is, did they shout at him to drop? What was said?

      • Here is a link to an unnarrated, neutral copy of the video:

        I dont think we are disagreeing. I think we both can agree that there is no gun visible, correct? As Rice sees the cop car pulls up next to him, he naturally gets up and comes over. His hands are down, and one is near his waistband. But at no time do you see a gun. There was no one around him, no one was in any immediate danger, there was no gun visible. There was absolutely no need to pull up right next to him and shoot him from the car. They had no way of even determining I that was even the right person they were called about.

        In the 2 seconds they gave him between pulling up and shooting him, I highly doubt they had time to shout orders, and he certainly did not have enough time to comply with them.

    • The cop did not shoot him from the car.

      I’ve noticed a similarity in many police shootings, but I am relying on media accounts which I find inherently unreliable. I am most familiar with Los Angeles where my information is more reliable.

      It seems that people are shot when the police are “too close” to the suspect. Sometimes the officer’s actions play no role in his being so close that he feels his life is in danger. I believe LA has had two recent shootings where the police felt threatened by a knife. We also have had some shooting where the police allege that the suspect was attempting to get the officer’s gun. In some of those cases, it is questionable that the police should have gotten that close to the suspect. (That may be the basic problem with Tamir Rice. With the info which 911 gave the officers, they should NOT have driven up on anyone in the park. There are wiser tactics.)

      Los Angeles has financial troubles, which are mostly of its own making, and police training seems to have suffered from the budget cuts. I have personally spoken with officers who complain about the antiquated equipment and the way the lack of funds endangers their lives. Matters have deteriorated since Chief Bratton left. I believe that a crucial difference is that Chief Bratton had the political clout to obtain better funding than his successors, who have no political base.

      After the LAPD got off “parole” with the Justice Department, it was transformed from what it previously been, thanks to Chief Bratton. As the police funding is being neglected, however, officers are not receiving adequate training and psychological support service. I do not see how we can escape being in the national spot light with some nightmare of a shooting, where irrationality will assert itself on both sides. At one extreme, we have those who believe that any dead Black person has to be the result of racism, and at the other extreme, we have those who believe that police officers can do no wrong.

      What the LA City Council needs to do now is provide better training and psychological support services to our police officers. We ask them to put their lives on the line for us, but the city council gives our tax dollars to billionaire real estate dollars.

  2. does anyone know how easy, hard it is to remove orange part that identifies toy vs gun ?
    could police have seen orange marker if gun toy was inside pants ?

    does NRA find this news useful ? and will they use it ? or do they use better markers on metal bulleted guns ?

  3. >Loehman was an incompetent, jumpy, trigger-happy police officer who should never have been hired. He and his partner did not follow responsible police procedure.
    That is argument enough to indict them, give them a chance to defend the actions publicly and use those arguments to educate the people. If this was a random person who was carrying and shot him, he would be. The fact that the officers egregiously put themselves in a tactically indefensible position (due to poor training or bad judgment) should remove the usual legal protections they get. When a doctor makes a mistake like that he’s charged with negligence, an attorney is disciplined and possibly disbarred… I want my police officers held to the same or a higher standard.

    • “When a doctor makes a mistake like that he’s charged with negligence, an attorney is disciplined and possibly disbarred… I want my police officers held to the same or a higher standard.”

      Neither the lawyer’s negligence nor the doctor’s is a crime, though—even if it gets someone killed. The remedy is civil.

      • That does not make me feel any better. If a doctor puts himself in a position where someone dies because they did something stupid (say an unnecessary movie tracheotomy with a pen – what a doctor friend calls the most idiotic movie trope about doctors, worse than all the sex in E.R. and knockoffs) I would not expect him to be shielded by his professional license. What he did is so stupidly out of the expected doctor’s behavior that he should face criminal charges, period. It may not be the law, but it does not make it right. (Aside, I believe doctors are also shielded for way too many things by the law, but that’s a separate discussion.)
        I see what the officers did here almost as bad as that. Knowing there is a possibly armed threat you don’t put yourself in a position where you’re that vulnerable. Had Tamir been a bad guy with a gun, prepared to fight back, there is a very good chance we would be talking about a dead or at least wounded officer, if not two. The price of these guys’ stupidity was not their own lives only because the threat was not real.

        • The issue is mens rea—crimes require it unless negligence is so blatant that it exceeds what can reasonably called an honest mistake—if you use a power mower to cut a kids hair and it cuts his head off, you don’t need to have intended to kill–you did something that you should have known would kill.

          The key intervening cause here is the misrelayed 911 call. If it had been correctly relayed, Tamir wouldn’t be dead. That negligence sparked the police botch.

          • Good point. I’ve learned about self-defense and I’m considering what the officers did as negligence when it might just be bad training (not that I’m convinced, but I see your point). Still, if the police are not trained tactically to stay safe, we have a bigger problem than one dead kid.

          • Cleveland policy re 911 calls is to only relay known and verified information to officers. The reason for this is that burdening the officers with ‘mights’ and ‘maybe’s and ‘not sure’s creates doubt and hesitation in the officers that can often get them killed, and possibly bystanders as well.

            Thus, dispatchers are only permitted to relay ‘known’ information, and officers are left to sort out the maybe’s in person, where they can get answers to them more directly.

            • Now THERE’S a policy that needs some tweaking. So if the caller said “There’s a kid scaring people with a toy gun…a guess it might be a real gun, and short man” the last part would be left out?

              • If the caller said he was short, that os a descriptive identifier, and would be relayed, since it isn’t “maybe he is short, he might be tall”.

                On the other hand, since the caller would be saying they are not sure if the gun is a toy or not, the call would default to reporting it as a gun, since officers don’t automatically shoot someone just for having it. But, telling them it might not be real causes the doubt I described before, creating hesitation when the suspect draws it on them. That hesitation gets both officers and bystanders killed.

                In the final analysis, if the boy had known better than to grab a gun butt in his waistband when confronted by officers, they would not have had a reasonable belief that they were in imminent danger, and would not have needed to shoot. Procedure is to neutralize a possible threat – reaching for what appears to be a gun makes that possible threat into an imminent one.

                Remember, the rec center was behind them, with people coming and going from it. Part of the officers’ thinking was to eliminate that threat before one of the bystanders could get hurt. Seeing him appear to try to draw the gun endangered everyone in the area, and not dealing with that threat makes the department liable (civil) for injuries that ensue because they gave the suspect the opportunity to shoot.

                • I agree with all of this, and it provides valuable perspective. But the difference between “it is a gun’ and “it might be a toy” is material, and preventing doubt from entering the mind of the police is not a good reason to misinform him, which is what this policy did in this case. Can’t blame the kid—he did nothing that wrong.

                  • However, not giving them uncertain information is not misinforming them.
                    A suspect waving a gun and pointing it at people was reported, that is what officers were told that the call said. But that isn’t misinforming them, that is informing them on what was reported in the call. Police do know that what has been reported by a caller might not be completely accurate, they don’t take it as gospel.

                    Had Rice not immediately try to draw the gun on them when they confronted him, they would have soon determined it was a toy.

                    Unfortunately, Rice escalated the confrontation before the officers had a chance to secure the scene and investigate what Rice was doing, and discover that it was a toy.

                    He *did* respond to officers by lifting his shirt and grabbing the butt of the gun – that is arguably doing something wrong, aside from already being guilty of brandishing – an old Ohio law that covers such things as waving a weapon about in public and menacing people with it.

                    • You apparently do not understand, among other things, the concept of deceit, which is using truthful facts in a misleading context to deceive. If the dispatcher used the description intentionally withholding the relevant fact that the citizen who actually saw Tamir believed he probably was a child with a toy intentionally in order to mislead the cop and endanger the child, we would call his action evil. Since he did it without malice, it is, instead, negligent, foolish, or stupid—a mistake.

                      You really believe that as long as included information is correct when important information is omitted, there is “no misinformation”? Really? Really? So if you ask me for directions to a stadiumand I tell you that “Rt 138 right up ahead goes right to by it” and it does, but I intentionally fail to mention that while it goes by it, there is no exit off of the road to actually get to it, thus prompting the inquirer to take a road that doesn’t help him reach his destination, there has been no misinformation? The direction-giver was certain of what he said—it just wasn’t what the motorist needed to hear, though he was given the impression that it was.



  4. You say the boy committed no crime, and perhaps that is true, yet waving a gun or gun replica in public – so that someone would call and say that he was scaring people – is right on the edge of being a crime if not a crime. (It should be a crime it seems to me.) It is conceivable that a 12 year old who plays in that way can be forgiven, but it still seems to me to be a criminal activity. It seems radically stupid that parents would allow their children to ‘play’ in that way.

    It seems to me an unfortunate choice to have driven right up to the kid when another approach might have better served the situation, but it is not possible to second-guess the officers. One would have to know why that choice was made, and it may never be known. But I am aware that that is where my own bias lies: I would err on the side of defending the police even if, in this instance or in other instances, police are said to act ‘rashly’. Probably in dozens of other incidents, not involving children, I’d not be bothered that a criminal loony got shot while endangering people or committing crime. I got robbed at gunpoint once and when I thought about the hand that held that gun to my head I overcame all sense of sympathy of forgiveness. If someone picks up a gun, and certainly uses it to commit crimes, they forfeit any defence.

    Intuition would say that police aware that a suspect has a gun would not rush so suddenly into personal danger. That confuses me. Why did they? I would imagine that the officer had his gun drawn beforehand, expecting danger. Is that wrong? Not from his perspective. But it doesn’t make a great deal of sense why they’d place themselves so close to a threat.

    I see the quandary that you point out Jack: The choices made by the officers are questionable and looked at in a certain way those actions undermine their defence.

    • “You say the boy committed no crime, and perhaps that is true, yet waving a gun or gun replica in public – so that someone would call and say that he was scaring people – is right on the edge of being a crime if not a crime.”

      You’ve squarely hit the reason why everyone from the DNC to BLM to the media didn’t pick up Tamir Rice or John Crawford as cases to champion: They had pellet guns. It doesn’t matter that they were pellet guns, or that both states having open carry laws, those people could very well have been legally carrying those weapons (Which is why your point as a statement of fact is completely inaccurate, they could have legally been juggling AK-47s with torches welded to the barrel. Fear does not make law.), it didn’t matter that they were both on camera, that neither were warned, and that basically everyone agreed, at least on a gut level, that something seriously wrong had happened in both these cases: The guys had black cylindrical objects that the left is cripplingly afraid of. Black lives matter!* (*Unless they’re holding cylinders!)

      • So different rules for cops?

        Here I thought that police are held to a higher, not lower standard.

        In 1996, four Houston police officers broke into a house without a warrant to look for drugs and shot Pedro Navarro-Oregon to death.

        If you had broke into a house in Texas to look for drugs and shot someone to death while doing so back in 1996, you would have been executed already.

      • Exactly.

        Just recently I was discussing pistol training with a friend who is getting a concealed carry permit and her licensed instructor. She is being trained to shoot at ranges of 10, 20 and 30 feet. I commented that in the Marines I was trained to shoot at 7, 15 and 25 YARDS. He told me that’s all well and good for the military but if a civilian shoots someone at 25 yards, 75 feet , they most likely are going to jail so he trains them to shoot at close distances.

    • Under Ohio law, given that the gun he had looked indistinguishable from a real .45, seeing him start to pull it out, apparently preparing to shoot you with it, meets the legal standard for reasonable belief that you or others are in immediate danger of harm or death, which justifies shooting in self defense, civilian or police.

      Of course it would likely go to court, when it turns out that the man was a child with a toy gun, and that would likely be used in an attempt to sway the jury by emotion, but the litmus test for self defense shooting is that it is reasonable for you to believe someone is about to shoot you.

      The toy gun meets that test along with Rice moving to grab it as though to draw it, since it’s orange tip was removed, and it could only be distinguishable from a toy gun on close inspection.

  5. Jack: “The officer had no way of knowing that Tamir was 12, or a boy”

    Wait, why not? Most people can tell the difference between twelve year old boys and adult men.

    • Simple. Because the officer only gave himself less than two seconds to assess the situation before he shot the boy. It is difficult to determine age, or anything else in that timeframe.

      • It has been described as a near drive-by shooting: they got too close, the kid either went for his gun, maybe to throw it away, the officer panicked, and shot him.

        It’s per se negligence…maybe not criminal negligence.

  6. It would be easy to assume, given the current media climate, that every time a police officer confronts an armed individual a shooting results. Many people might be surprised at the number of times that law enforcement officers are presented with situations in which they would be legally justified in using deadly force, but choose not to do so. Perhaps this means giving a suspect a few extra milliseconds of grace to drop a known knife or gun. Or in one of those “unarmed subject” shootings, the perp is given “one more chance” to drop a shiny object that might or might not be a gun, or remove a hand from a pocket, as they approach officers. Officers often take cover and continue talking to an armed subject rather than just dropping them where they stand. I have personally done all of these things, as have many officers I know and have worked with. There has been some research done on this, and if I remember correctly over 80% of officers surveyed after 20 or more years of service reported multiple instances of restraint in using legally justified deadly force. I have received a lot of criticism -particularly from younger officers- for encouraging measured and reasonable restraint. There is a popular point of view that once the legal standard of justification is met, then no further restraint is necessary, or wise. In my mind, there is a difference in a shooting that is justified and one that is necessary. I’m glad that my days as a street cop are past, and that I made it over 40 years on the job without killing anyone, but police officers need to be held to a high standard even when properly “given the benefit of every doubt” as Jack says.
    “Loehman …should never have been hired.” There you go. In my opinion, that’s the root of the problem in many if not most of these incidents where someone was shot who ought not to have been shot. I’m sure this will be an aspect of the civil actions to follow in this case.

    • Ding! ding! ding!
      Yes, this is why I believe this case should have been treated by the book. Prosecutors just present enough evidence for probable cause, let it go to trial and have the defense present their side. Police officers, deservedly, get latitude in the use of deadly force, and in exchange society needs the transparency and assurance of an unbiased system. This is one case that can be used to justify all the anti-police reactions in the country, and that is why I want it to be dealt with properly. Jack’s assessment that a better outcome would have been to allow a charge of negligent homicide seems to me like the only ‘right’ option.

  7. “District attorneys are on the same team as police, and automatically shares their perspective; it is important that the police recognize that.”

    You have just described the problem in a nutshell: District attorneys work closely with cops and are therefore reluctant to investigate or charge cops who shoot people under questionable circumstances. This is why there are protests. This is the ethical corruption that political pressure is intended to counteract.

    “The police receive the benefit of every doubt, and they deserve that.”

    No they don’t. The only thing that needs to be different for police is that they should not be subject to criminal provisions against things like “looking for trouble” or “standing your ground” because we want police to be proactive and to confront evil. Other than that, police should not be able to shoot except in defense, just like everybody else.

    • It’s not corruption, it is an inherent conflict of interest, and it goes with the job, that’s all. The President has a similar conflict of interest when an ally and an appointee engages in misconduct. The competent, ethical Presidents recognize the bias, and correct for it.

      When citizens shoot people, they are acting in their own interests, and they have the option, indeed the obligation, to avoid confrontations that may escalate to violence. Police don’t have that choice, and recognition of that fact requires that they be given the benefit of every doubt, just like soldiers in combat.

      The analogy is civilian critics being quick to categorize various acts of violence as “war crimes,” because they are judging the conduct in a non-war context. There is very seldom any good reason for a citizen to shoot and kill another citizen. With police, such a scenario can arise at any time. That alone creates a material difference.

      • Yes, DAs have an unavoidable conflict of interest, and as in your Presidential example, when they take the easy way and don’t try to correct it, that’s an ethics failure. I think there’s rather a lot of that going on, which helps to justify the protests.

        I don’t see how recognizing that we want police to confront evil leads to giving them “the benefit of every doubt.” Maybe it’s just a definition issue, but allowing police to create confrontations doesn’t mean we can’t question their motives or the honesty of their testimony.

        • Sure we can; I don’t disagree. But a cop deserves the presumption that he or she is at least trying to do the right thing, and any shooting should be evaluated in that context, not the protesters’ preferred context, where if a black allged criminal dies from the shots of a white cop’s weapon, the assumption is that the cop is a racist tool of white supremacy.

          • Bingo! The presumption of good faith -rebuttable, of course by facts to the contrary- is all I ever expected as an officer, and is fading fast from the public’s perception of police use of deadly force in many communities. This is already having serious implications for police proactivity, as Jack has pointed out, and I fear it will only get worse.

            • Agreed. Another factor to consider is that this large “child” was carrying a replica of a .45 Colt Service Automatic that would have likely fooled me… and I carried one as an Army M.P. for seven years. Who makes these pistols and why do they make them in the image of one of the most popular- and deadly- handguns in circulation? That missing orange cap must have been removed deliberately and apparently was without too much trouble.

              • “Who makes these pistols and why do they make them in the image of one of the most popular- and deadly- handguns in circulation? ”

                A great question and one that I have also. Also why not just make the whole damn thing a bright color instead of just a part?

                • I think it highlights the difference between what we picture a child to be and what we’re calling one. Most of the 12 year olds I know are a third the size Rice was in every dimension. I also think that the meaning was obvious for anyone who wanted to see it.

                • My first point was that anyone coming up on a 175 pound boy is unlikely to regard him as child until they know different. The second point (and most important) is that when you encounter someone armed with a military pistol, age or sex ceases to be an issue. A round of .45 caliber ACP is just as dangerous when fired from a feminine or juvenile hand. That’s the hard truth. When they take a man’s weapon in their hand, they become a man de facto; armed and dangerous. And again, those officers had no way of telling that the pistol was a replica.

  8. Ohio is an open carry state.So what was the crime? “Brandishing” requires another person to be present.

    The police report bore precious little resemblance to the facts recorded on video, .

    The prosecutor at the Grand Jury hearing was a de facto member of the defence team. It was very obvious that the fix was in.

    I’m prepared to believe that a Not Guilty verdict should have been returned in a trial. To say that there was no case to answer – no.

    • If a NOT Guilty verdict should be delivered at trail then there should be no trial. It is unethical for a prosecutor to bring a case against an individual he does not believe should be convicted. That’s not a fix. That’s using the grand jury to counter political pressure.

      • That’s only true if you know a not guilty verdict should be delivered. I don’t think this case is that cut and dried. I’d be prepared to believe that it’s the right outcome, but I’m not prepared to believe that it’s clearly the case given what we already know about it.

        • Again, if the DA believes the individual isn’t guilty of a crime and shouldn’t be found guilty of a crime, then the DA shouldn’t put the individual on trial when it could result in a verdict the DA would regard as a miscarriage of justice. This was the first thing taught to me in my prosecutor ethics course. And no, that principle isn’t followed nearly enough.

          • How would you feel about a requirement that possible crimes by police be automatically assigned to a DA from a different region? It seems highly likely that the local DA will be biased in favor of the local cops, but it creates at least the appearance of impropriety.

            It troubles me that it’s an open carry state. The police can not be allowed to use ‘he has a gun on him and his hand is somewhere vaguely close to it’ as justification to shoot, or it would be a de-facto ban on carrying.

      • I’m struggling with this one Jack, I really thought that the Rice case had grounds. The family might get something in civil court (it would almost be hard for them not to), but that officer… It’s frustrating. I’m not so convinced that the case was a loser that this failure to indict was right. I’ve been able to find legal arguments to justify everything up to this point. This call stinks.

        • I think a negligent homicide charge could get a guilty verdict, but its a stretch, especially since the officer was misinformed by the 911 call relay. That alone could be viewed as an intervening cause. Just a horrible fact pattern.

          • I feel like too much weight is being put on the 911 call. Of course police officers must take every call seriously, but how much can an officer be exonerated due to caller misinformation? I don’t know the answer, but it seems like this is a case where the officer had a responsibility to get more facts before he acted.

            • Obviously, Chris, you’ve never been a cop on the streets. You don’t stop to ask questions when someone pulls a weapon on you. You pull yours and shoot before he can. It’s a matter of life or death. He who hesitates is on tap for a last journey to the morgue.

              • ” You don’t stop to ask questions …You pull yours and shoot”

                No weapon need be pulled by those slain. As here. You shoot first just in case the suspect might have a weapon, and before being able to ascertain it’s the right person – or there’s a risk, however slight.

                I agree the police officer involved was in fear of his life. I don’t agree that that gives him carte blanche to shoot at anything he feels is threatening. He might feel that all black teens threaten him. Or all those with shifty eyes. Or red hair on Thursdays. Or the first person he sees when walking out the front door. Or someone who looks muslim so might be a terrorist out to shoot him..

                • Am I correct in understanding, Zoe, that the youngster turned toward the officers with a realistic gun in his hand? But regardless, the question was that of when it is proper to engage if the subject is a woman or a minor. That’s what I was addressing.

                  • No, he did not. When they pulled up their car, Rice was sitting down at the table, staring at nothing in particular. The police car races up to him, he stands up curious, and goes towards the officers, barehanded. As far as he knows, he has done nothing wrong. According to the prosecutor, Rice’s hands drifts near his waist, so at this point, the police felt threatened, and justified in shooting him.

                    The police initially stated in their report that Rice pointed a gun at them, they shouted at him to drop it three times, he refused, so they had to shoot him. They stuck by this story until it became known that the rec center had surveillance cameras in the area, and the footage showed that there was no gun visible, the confrontation lasted all of less than two seconds, and there was no time for any orders to be said, let alone for Rice to respond. At which point, the police simply shrugged, dug in, and let the “process work.”

                    • Here’s the video. I don’t see how anyone can say with such certainty that he DOESN’T grab for the “gun”—or does, for that matter. That’s what is called “reasonable doubt.”

                    • Here is a link to the video. Rice is sitting alone at the gazebo from about 5:00 on. He sees the police about 6:56 or so, he is gunned down by 7:02.

                    • The question was whether “he had a gun in his hand.” I think we can say with some certainty that he did not have a gun in his hand.
                      The prosecutor alleges that Rice was going for his “gun”, but all you can say from the video is that his hands were by his waist, as hands tend to be, especially when you haven’t been given an order to put your hands in the air.

                    • Example from Houston. One evening, an elderly man emerged from a convenience store with a bag of groceries to walk home. Two youths, aged 17 and 18, lay in wait for him behind a dumpster. After robbing him at gunpoint, they proceeded to beat him up for the thrill of it. At this time, an off-duty Houston policeman with his girlfriend came driving by. Seeing what was happening, the officer called to the perpetrators to desist. The 18 year old when slowly walked toward the car and pulled up his shirt to reveal a pistol stuck in his waistband. The officer shot him at that point. The robber staggered off into a nearby front lawn where he collapsed and died. The other ran from the scene and was soon afterward apprehended. (I was close enough to the scene to hear the shot and witness the 17 year old’s flight.) Now, was this shooting justified and can you spot parallels with the Tamir Rice episode?

                    • Am I correct in understanding, Zoe, that the youngster turned toward the officers with a realistic gun in his hand?

                      I think the answer is a pretty definitive no, he did not turn towards the officers with a gun in his hand. Not even the prosecutor, making the defense for the officers, has claimed that at this point (though that was the initial police report). The claim now is that the boy Rice was going for his waistband when he was shot. We also know that he did not have the toy in his hand because it was still in his waistband underneath his shirt when he was shot.

                      After a certain point, it becomes a “who are you going to believe, me or your lying eyes” type of situation. Watch the video.

                    • Confirmation bias. Officers who were told that a man was waving a gun around appeared to be going for his waistband (you can’t see if any part of the gun is visible, or definitively say that it isn’t) shot someone they thought was going for the gun. They are not required, by law or reason, to wait for someone to get a loaded gun out and to ris being shot. You do know that police are shot, right? I guarantee they know that.

                      The dispatcher misinformed the officers. The officers did not follow procedure, and put themselves in a position of peril, stupidly, against procedure. The cop doing the shooting had a record of panicking under stress. The man with a gun turned out to be a kid who didn’t suspect that the cops thought he was a threat. The characterization of this as a perfect storm of human error, bad luck and incompetence is correct. I think it adds up to negligent homicide (as with Eric Garner), but I can see the argument that a conviction would be very difficult. There is no evidence that it is murder, and no evidence that it is racist murder.

                    • Are you going to accuse me of confirmation bias?

                      A difficult conviction does not justify the lack of effort, so long as one is possible, and just. I find myself agreeing with deery and Chris, at least to a point on this. Which is a bloody strange place for me to be.

                      I don’t even his hand by his waist. And it’s even odd to even suggest… Rice obviously knew that his gun wasn’t a gun, what’s the contention here? That he planned to whip out a replica at the cops?

                      The 911 call be damned… You can’t fall back on Police Procedure once you’ve violated every other part of it. The officer sped in, put himself in what he felt was danger, and shot someone in seconds. None of that was his job to do. And so why should he get the protection of being a cop? The distinction between a cop and a civilian is training and procedure, with an obvious lack of both, what differentiates him from you? This is like a Park Ranger who moonlights as a poacher, does he get a pass so long as he’s in uniform?

                    • That’s a bit of slight of hand. He is a cop. He is required to place himself at risk (I’m not.) IF he believes the subject has a gun (he did) and thinks he sees said subject going to the only place a gun could be (the DA believed the video confirmed that, and the grand jury apparently agreed), then he reasonably believes that he is about to get shot at.

                      “The 911 call be damned… You can’t fall back on Police Procedure once you’ve violated every other part of it.”
                      That’s not the significance of the dispatcher’s message. The significance is state of mind. If the officer was warned that he might be dealing with a kid and a toy, he wouldn’t have been in fear of his life. That matters.

                      He gets the protection of being a cop because he is a cop. Shouldn’t be, but is. You can’t send the message that cops who make honest, even stupid, mistakes while trying to do their job will be jailed. Fired, fined, shunned…but not jailed.

                    • By the way, confirmation bias is an unavoidable state of mind that human beings are naturally inclined to. There’s no shame in it. The only shame is in not trying to deal with it.

                    • “Why not jailed? He messed up and a person is dead.”
                      “Because he’s a cop, and because cops need a certain amount of leeway to do their jobs.”

                      The job should only protect you so long as you’re actually doing it. He’s required to place himself at risk? Sure. He’s also required to do a whole lot of other things he didn’t do, and if he can pick and choose what parts of the job to not do and still be protected the system is broken.

                      I don’t disagree that the officer was in a position where he thought his life was in danger, I’m saying that situation was entirely of his own making, and if he had actually done his job, he wouldn’t have been there.

                      And what better definition for negligent homicide could there be?


                      “Negligent homicide is the killing of another person through gross negligence or without malice. It is characterized as a death caused by death by conduct that grossly deviated from ordinary care. Negligent homicide may be charged as a lesser-included offense of manslaughter. It is also sometimes referred to as “involuntary manslaughter”. State laws vary, so local law should be consulted for specific requirements.

                    • First, “Why not jailed? He messed up and a person is dead” waide will be tough to prove.s the legally ignorant argument in the Trayvon Martin case. That’s not the standard.

                      Second, as in that case, the fact that an officer negligently placed himself in a position of peril doesn’t mean that the killing itself was negligent, and that’s why negligent homicide would be a tough case to win, and why a no charge is justifiable. The negligence was in not taking ordinary care to protect the officers. It ended up in the death of the kid. The shooting was reasonable, one the situation was set up by all the botches.

                      The more I read the arguments for charging the officers, the less I think they should have been charged.

                    • “First, “Why not jailed? He messed up and a person is dead” waide will be tough to prove.s the legally ignorant argument in the Trayvon Martin case. That’s not the standard.”

                      I actually thought of that. I feel the situations were different because Zimmerman actually hadn’t done anything wrong (Following someone is not illegal) and only shot Martin after Martin was slamming his head into the ground. Zimmerman also, funny enough, didn’t enjoy either protection as a police officer or as part of the neighborhood watch. Are you really comparing an ostensibly trained police officer to an underachieving wannabe?

                      “Second, as in that case, the fact that an officer negligently placed himself in a position of peril doesn’t mean that the killing itself was negligent, and that’s why negligent homicide would be a tough case to win, and why a no charge is justifiable. The negligence was in not taking ordinary care to protect the officers. It ended up in the death of the kid. The shooting was reasonable, one the situation was set up by all the botches.”

                      Are you saying that creating a situation in which someone dies, when the person who created it should reasonably have known the probable outcome would be that someone might die, in contravention of normal practices and care doesn’t squarely fall within the definition of negligent homicide?

                      I think you’re hung up on the shooting… Negligent homicide doesn’t require mens rea, it requires negligence. For example, the most common form of negligent homicide is vehicular… Let’s say a really intoxicated person was driving on the wrong side of the road, and someone from oncoming traffic made the choice to drive into the ditch to avoid a head on collision, but in doing so accidentally struck a pedestrian. In that case, the intoxicated driver is guilty of negligent homicide (as well as a slew of other things) because their negligent behavior created a situation that caused a death. The intoxicated driver didn’t even have to strike the pedestrian, it was enough that he created the situation in which it was likely to happen.

  9. What is the role of the prosecutor with the grand jury? If a prosecutor takes a case to a grand jury isn’t it to get an indictment not to present both sides of the case?

    My feelings on this that this cop was horribly trained, or at least so undisciplined that he ignored the training, and discharged his duties improperly. For that he and the police department need to be held accountable. Hopefully that will happen in civil court.

    • In a situation where the DA has decided that the indictment is warranted, he or she brings the evidence so indicating to a grand jury, which hears only that. In special circumstances, as when a public outcry is demanding a trial, a prosecutor will, as in Ferguson, present all the evidence—which he believes is insufficient on balance to give probable cause—and guide the grand jury to no charge result. It’s cover, basically.

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