Tamir Rice's death: A lawful tragedy

Cleveland mayor reacts to Tamir Rice jury decision
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Story highlights

  • Philip Holloway: It is tragic that a deadly misunderstanding led to Tamir Rice losing his life
  • Police conduct can only be judged based on an the standard of objective reasonableness

Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association's criminal law section. Follow him on Twitter: @PhilHollowayEsq. Sheriff Scott Berry of the Oconee County Sheriff's Office in Georgia contributed to this piece. The opinions expressed in this commentary are solely those of the author.

(CNN)On November 22, 2014, Cleveland Police Officers Timothy Loehmann and Frank Garmback were dispatched to a call involving a person with a pistol outside a recreation center. As a result, 12-year-old Tamir Rice, who was in possession of fake or replica of a Colt 1911 semi-automatic pistol, was shot by officer Loemann and died from his wounds.

Philip Holloway
The tragic incident set off a firestorm of public criticism. Ultimately, a Cleveland judge issued a nonbinding order on June 11 stating that there was probable cause for the district attorney to bring criminal charges against the officers, noting that he was "thunderstruck" by how quickly the officer employed lethal force.
    Many people incorrectly believe that police should wait and see what someone is going to do with a weapon before using any force. If that were the law or even police policy, then there would be lots more dead police officers because criminals would realize that they get to take the first shot.
    Prosecutor: "Perfect storm of human error" killed Tamir Rice
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    Two days later, likely in response to the judge's order, the Cuyahoga County Sheriff's Department investigative file was released by the district attorney.
    This case file, which was not available to the judge, includes some vital details which, in all likelihood, led to the grand jury's decision not to accuse any officer of any criminal wrongdoing in Rice's tragic death.
    The starting place to examine any instance of police use of force is the law. The law that applies is provided by the Supreme Court of the United States in the case of Graham v. Conner.
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    The case specifically provides that any use of force incident must be "objectively reasonable" under the totality of the circumstances and that "[t]he "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It also clarified "the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."
    In light of this ruling, let's turn to the specific facts: the totality of the circumstances as considered by the grand jury and outlined in the official investigation that support the shooting as legally justified.
    Officers won't be charged in Tamir Rice's death
    Officers won't be charged in Tamir Rice's death

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    1. The dispatcher advised the officers "Cudell Rec Center... there's a black male sitting on a swing pulling a gun out of his pants and pointing it at people." It is important to note here that the officers here did not know that the 911 caller had informed the dispatcher that the gun was "probably fake" or that Rice may have been a juvenile.
    2. Tamir Rice, while being a mere 12 years old, appeared much older. He weighed 195 pounds at the time and both responding officers believed he was an adult as did officers who responded after the shooting.
    3. As the officers pulled up to confront Rice, surveillance video of the shooting verifies that Rice could be seen "pulling up his outer garment with both hands near the right side of his waist." This is consistent with Loemann's contention that he saw Rice reaching for his gun.
    4. After firing two shots at Rice, Officer Loemann "stumbled and fell backward, regained his footing, and found cover behind [the police vehicle]." This is objective evidence that Officer Loemann truly believed he was in fact dealing with an armed and dangerous individual. Otherwise, he would not have felt the need to seek a position of cover.
    5. Upon realizing the injuries to Rice, the officers asked for the responding ambulance to "step it up" -- meaning to expedite their response to the scene. This shows that there was no malice, ill will or indifference to human life on the part of the officers.
    6. Multiple veteran officers, including the responding officers, believed the gun that Rice possessed was in fact real and Rice himself had been warned, upon receipt of the gun, to be careful with it because it looked so real.
    The bottom line is that the shooting was objectively legal in the totality of the circumstances. Most of those circumstances were unknown to the judge who ruled in an advisory opinion that there was probable cause to charge the officers in the shooting. But one must analyze from the vantage point of the cop on scene who has to make a life or death decision in a split second.
    Furthermore, I think the release of district attorney's investigative file was in response to the judge's ruling and suggests that he did not want this grand jury to indict the officers. A competent and responsible prosecutor should more concerned with "proof beyond a reasonable doubt," the standard needed to convict, rather than the much lower standard of "probable cause" needed to arrest someone.
    The officers who were involved were dispatched to a "man with a gun" call and were advised that he was pointing it at people. They also were not told he may be a juvenile. He was almost 200 pounds and appeared to them to be an adult according to the report. Every officer who saw the fake gun thought it was real when they first saw it.
    While pundits and those predisposed to believe that law enforcement officers as a group recklessly and wantonly shoot, choke, hit or arrest a person for personal or other more subjective reasons, this was clearly not the case in Cleveland on the day Tamir Rice tragically lost his life.
    It is easy to sit comfortably and watch video, or listen to a four-second sound bite of an interview and reach a conclusion that the police were wrong to use deadly force. But in our country, that is not the legal test, and criminal charges are not to be brought for political or emotional reasons.
    The Supreme Court wisely and judiciously decided in Graham v. Conner case and concluded that police conduct can be judged based only on an the standard of objective reasonableness. In other words, what matters is what the officer(s) on-scene knew or believed at the time during what is always a fluid, dynamic and ever-changing situation.
    For the officer to learn later that Tamir Rice was only 12 is not a relevant legal factor. His behavior and what the police knew and could observe at that time are the only legally relevant circumstances upon which they are to be judged. To suggest that police, before using force, should carefully interview anyone to determine their age, family circumstances or other factors they can't possibly be expected to know is a standard that no one can live by, cops or civilians.
    Likewise, we can't expect the police to dodge the first bullet or two before allowing them to use deadly force to protect themselves or others.
    Tamir Rice tragically was waving a gun around and in the words of a witness "acting all gangster." When the officers approached him, instead of holding his hands out or merely standing there, the nearly 6-foot-tall, 195-pound Rice chose to lift his shirt and make the objective motions any police officer would conclude to mean he was going for his gun.
    The true tragedy in this case is that this was a deadly misunderstanding that led to Rice losing his life -- fake gun or age notwithstanding.
    If we expect police to obey and support the Constitution of these United States, then it stands to reason that we in turn must judge all their actions based on the Constitution as interpreted by the courts. To pick and choose the Constitution as a buffet where you can select what pleases you and reject that which doesn't isn't the foundation of law our country was built upon.
    Police work can be gritty, ugly and nothing like how it is portrayed on the big screen. It is real life with real life consequences. All reasonable people grieve for Tamir Rice and for his family. All indications are that Cleveland police do as well.