Judge sees cause to charge officers
The findings in a Cleveland policeman’s slaying of a boy have no legal weight.
An Ohio judge found probable cause to bring criminal charges against two Cleveland police officers involved in last year’s fatal shooting of Tamir Rice, a 12year-old black boy who was playing with a toy gun, but the decision on whether to prosecute is expected to rest with a grand jury, officials said Thursday.
Cleveland Municipal Judge Ronald Adrine’s ruling is advisory; no charges have been filed. Prosecutors will review the decision. The judge noted that a higher burden of proof, “beyond a reasonable doubt,” is required for conviction.
Adrine found probable cause to charge Officer Timothy Loehmann with “murder, reckless homicide, negligent homicide, involuntary manslaughter and dereliction of duty.” He also found probable cause to charge Loehmann’s partner, Frank Garmback, with negligent homicide and dereliction of duty.
“This is the first positive step toward justice for this family,” said Michael Nelson, an attorney for a group of citizens who brought the case to the judge earlier in the week.
Adrine’s ruling could be considered a moral victory for activists, but legal experts said it had “zero legal impact” on Loehmann and Garmback.
“In the criminal justice system, the most powerful party is the prosecutor, not the judge, and the prosecutor has complete discretion here,” said Joshua Dressler, a distinguished professor at Ohio State University’s Moritz College of Law who specializes in criminal law.
City prosecutors said they had referred the ruling to Cuyahoga County Prosecutor Timothy J. McGinty, who issued a short statement: “This case, as with all other fatal use of deadly force cases involving law enforcement officers, will go to the grand jury. That has been the policy of this office since I was elected. Ultimately, the grand jury decides whether police officers are charged or not charged.”
But Dressler said Adrine’s ruling could pressure the prosecutor or the grand jurors.
“The way I see it is that you have a little bit of a tap dance going on here between the judge and the prosecutor, that the judge is in a sense, whether purposely or not … putting a little bit of pressure on the prosecutor to indict,” Dressler said.
The boy’s killing on Nov. 22, 2014, came in the wake of other controversial deaths of black males at the hands of white police officers, including Michael Brown in Ferguson, Mo., in August and Eric Garner in New York City in July. Tamir’s case became a rallying cry in a discussion about police use of force and the relationship between law enforcement and ethnic minority citizens.
Tamir was black, as is the judge. The officers are white.
Loehmann shot Tamir twice while responding to a call about someone waving a gun in a Cleveland neighborhood. The 911 caller told police that the person was probably a child and that the gun was probably fake, but that information was not relayed to the rookie officer.
Video of the incident shows Garmback driving his police cruiser close to Tamir. Loehmann got out of the car and opened fire almost immediately. Police have said that he warned the boy to drop the weapon.
In his 10-page ruling, Adrine described the video as “notorious and hard to watch.”
“After viewing it several times, this court is still thunderstruck by how quickly this event turned deadly,” he wrote.
The judge criticized Loehmann’s near immediate decision to fire, and questioned police accounts that the boy had ignored the officer’s orders to drop the toy gun.
“There appears to be little if any time ref lected on the video for [Tamir] to react or respond to any verbal or audible commands. … Literally, the entire encounter is over in an instant,” he wrote.
Police union leaders have defended Loehmann, saying he did not know Tamir’s gun was a toy.
The officer’s defense attorney, Henry Hilow, dismissed Adrine’s ruling as irrelevant. The citizens who brought the case, he said, did not witness the shooting and would not have legal standing to testify at a grand jury hearing or criminal trial.
“My take is that the case as it stood yesterday, stands today and stands tomorrow hasn’t changed,” Hilow said. “Regardless of what the family thinks and with all due respect to all the people who signed the affidavits, there is not one person who signed that affidavit who has firsthand knowledge of what took place.”
Although Thursday’s ruling may not change anything from a legal perspective, the fact that a sitting judge found probable cause could inf luence grand jurors, Dressler said. Unlike trial jurors, grand jurors are not barred from looking at media coverage.
“Maybe they would push back at a prosecutor a bit more — ‘Why wouldn’t we indict if a judge thinks there’s probable cause?’ It might have some impact,” he said.