Law & the Courts

Lesson from Cleveland: Don’t Rely on Police Prosecutions to Salve Black Distrust

Cleveland residents protest the grand jury decision, December 29, 2015. (Angelo Merndino/Getty)

Here we go again. There will be no local prosecution of the Cleveland police officer who shot and killed Tamir Rice, a twelve-year-old boy with a realistic-looking toy gun (really a replica) in a public park. A citizen called the police because the boy was pointing his gun at others in the park and “scared the s**t” out of him. Tragically, although the caller also speculated that the gun “was probably” fake, that information (and the fact that the caller said the person was “probably” a juvenile) was never passed to the responding officers, who responded to a “Code 1” incident involving a black man “wearing a camouflage hat and a gray jacket with black sleeves” pulling a gun out of his pants and pointing it at people in the park. A “Code 1,” in Cleveland police parlance, means that the call is the highest priority and that there is significant public risk.

The ubiquitous video, which is hard to watch, shows what happened next. The officers responded, pulled into the park, and within seconds of opening the doors of the police cruiser, one officer fired two shots, hitting Tamir Rice, who died the next day. The officers both claimed that as they exited the car shouting at Rice to put up his hands, the boy reached for the gun in his waistband and was shot.

Anyone who follows police-involved shootings could recite the script of what would happen next. The local prosecutors would investigate; the local Democratic politicians, the civil-rights community, and much of the media would state that it was “obvious” the officers should go to jail; and the Civil Rights Division of the Department of Justice would announce that it was “monitoring” the situation. Notwithstanding that the officers were responding to a report of a “man” with a “gun,” and confronted a 195-pound individual fitting the description they were given, the shorthand description of the case became that “police killed an unarmed twelve-year old black boy playing with a toy gun in the park.” For Democratic politicians and activists, the prosecution became a proxy for broader issues of police–community relations, race relations, and racial disparities in Cleveland — and for whether “the system” takes those issues seriously, the implication being that a “system” that did would convict the officers in question. As is typical, over a year passed, community expectations regarding a prosecution of the officers were raised, but when the facts met the law, no prosecution was forthcoming.

Having served in the Civil Rights Division of the Department of Justice, and having read the 75-page report issued by Ohio prosecutors (unfortunately, there is no requirement that people have to actually read the evidence before taking to Twitter to condemn the decision), I think the finding of the local grand jury is probably correct — that the officer who shot Tamir Rice did not violate any criminal laws. The forensic evidence that Rice was drawing the gun from his waistband at the time he was shot is strong. It is hard to say that the officers, looking at the facts they had, and looking at what they saw when they pulled into the park, could not have had a reasonable fear of imminent bodily harm when confronting him.

While the result is unsurprising (police are almost never prosecuted for split-second “shoot/don’t shoot” decisions that turn out badly), I understand why people unfamiliar with the law surrounding police use of force are surprised and angry. A twelve-year-old is dead. In reality, he was not a serious threat. It certainly seems that the officers, at a minimum, enhanced the danger of the confrontation by pulling in so close to Tamir Rice that there was not much time for anyone to react. Why was a trainee, who apparently had a checkered employment history, put in position to use deadly force? And, of course, the issue of race is unavoidable: Would a white child, in a different neighborhood, have been approached the same way?

But the reality is that the prosecution of individual officers is not a referendum on these broader issues. Unfortunately, too many people (mainly on the left), responding to public outcry over a tragic shooting, conflate two questions: 1) Did the officer in question commit a criminal act? and 2) Could the situation have been handled better, and was the shooting unavoidable? The Tamir Rice case provides a tragic example of an instance where the answer to the one question clearly differs from that of the other.

#share#Obviously, the officers might have handled the situation differently if they had known the 911 caller thought the person with a gun was “probably” a juvenile and that the gun was “probably” not real. But you can’t convict an officer for not possessing information he did not have. Nor is any criminal act to be found in the dispatcher’s translation of the 911 call. In retrospect, could the officers have confronted Rice from a different position to allow more time to assess the situation? Possibly. But again, is the decision on how to approach a reported man with a gun (next to a community center full of children) one on which criminal liability hinges? Finally, given that policing involves having to make split-second judgments with life-and-death consequences, was the officer in question someone who should have been hired to make them? Maybe not (again in retrospect), but there is no such thing as a criminal employment decision.

That the officers in a given case did not commit a crime does not mean that the broader issues raised by the Rice shooting can or should be ignored.

As the fact that the city of Cleveland paid a settlement to the Rice family demonstrates, the Cleveland police clearly had civil legal issues with respect to the shooting, given the indications that not everything about the shooting may have been handled properly or within policy. But the bottom line is that virtually all of the legitimate issues raised regarding the Tamir Rice shootings have nothing to do with the question of whether the officer in question committed a crime. “Justice” is not served by charging an officer with a crime you can’t convict him of, nor does it do anything to address any of the legitimate issues raised by the shooting. To the extent that community activists, Democratic politicians, DOJ, and the Obama administration play along with the idea that the criminal prosecution of an officer involved in a shooting is somehow a referendum on these broader issues, or a viable means of addressing them, they will continue to be disappointed. Michael Brown, Eric Garner, Trayvon Martin, and now Tamir Rice — anyone see a pattern? Don’t expect different results in Minneapolis, or even Chicago. Relying on prosecutions of police officers to salve community distrust and anger is a losing strategy.

However, and more important for conservatives, the converse is also true: That the officers in a given case did not commit a crime does not mean that the broader issues raised by the Rice shooting can or should be ignored. Even though no crime was committed, it is hard not to speculate that the Tamir Rice shooting could have, and should have, turned out differently. It is also an uncomfortable truth that it is hard to imagine a white child in similar circumstances meeting a similar fate.

Although it is clear that Democratic responses to these shootings — hollow promises to “investigate” and universally misleading suggestions that prosecutions are forthcoming — leave black communities unsatisfied, thus far Republicans have had little to say. Maybe that is appropriate as political matter during primary season (Black Lives Matter supporters hardly being a core Republican voting bloc), but eventually one of these Republicans will be the nominee for a general election. In addition to pointing out the failure (and the injustice to police officers) of the Democratic approach of pushing for prosecutions as a response to tragic cases such as Tamir Rice’s, that nominee will, let us hope, be able to address the legitimate concerns that such a tragic, and unnecessary, loss of life raises in the black community.

Robert N. Driscoll is the managing partner of McGlinchey Stafford’s Washington, D.C. office and the co-chair of its government-investigations practice. He previously served as a deputy assistant attorney general in the U.S. Department of Justice's Civil Rights Division.

Most Popular

Law & the Courts

The Real Reason for That Kavanaugh Smear

The New York Times on Saturday joined The New Yorker and many other media outlets in upending a dumpster full of garbage on its own reputation in an effort to smear Brett Kavanaugh. After more than a year of digging, the Democrats and their media allies still have no supported allegations of sexual misconduct by ... Read More
Politics & Policy

CNN: Everything but the News

For a while, we thought MSNBC had temporarily usurped CNN as the font of fake news — although both networks had tied for the most negative coverage (93 percent of all their news reports) of President Trump’s first 100 days in office. A cynic would argue that CNN had deliberately given Trump undue coverage ... Read More