Mimesis Law
21 July 2019

Just Another Day on the Mean Streets For Shooter Timothy Loehmann

Oct. 15, 2015 (Mimesis Law) — A couple of months ago, I wrote here about police shootings and how it is that the law does nothing to deter them.

The problem was that the Supreme Court said, in Graham v. Connor, that police use of force is constitutionally acceptable as long as it’s objectively reasonable. But that whether it’s objectively reasonable is to be determined by the subjective understanding of the cop using the force. Which means, when you get down to it, that as long as the cop who shoots someone thinks it was OK to do it, well then, by god, it was OK to do it.

Last year, Timothy Loehmann, a rookie cop here in Cleveland, shot and killed 12-year-old Tamir Rice. An unarmed African-American. It was, fellow Fault Liner Greg Prickett says, justified. Tragic, certainly. And unfortunate.   But it wasn’t even Loehmann’s fault.

Hey, shit happens.

Prickett’s view’s been endorsed by report from a couple of investigators our county prosecutor hired to look into the case before it was presented to the grand jury (which, of course, hasn’t yet happened, though the pros says it will). The special investigators, a retired FBI agent and a deputy DA from Colorado, both concluded that Loehmann was cool. Oh, maybe he shouldn’t have just jumped out of his car and killed an unarmed kid, but that’s with hindsight and the knowledge that the kid wasn’t armed.

Loehmann didn’t know when he shot Rice that the kid wasn’t armed. He didn’t know that he wasn’t dangerous. So it was perfectly reasonable, from Loehmann’s perspective, to shoot first and look into whether his fear was justified later. As reporters for the Cleveland Plain Dealer wrote, quoting former Agent Kimberly Crawford’s report,

Waiting to see if Tamir pulled out a gun would have created “an unreasonable risk.”

As I said, it’s been a year since Loehmann killed Tamir Rice. A year’s investigation isn’t the sort of thing that’s done in the ordinary case of a potential murder charge. But, Loehmann was a cop and the citizenry were outraged and the Justice Department had just come out with a scathing report explaining that the local police routinely used excessive force against members of the minority community. So it was especially important not to bring charges that might . . .

Oh, wait.   That makes no sense.

But hey, shit happens.

Anyway, now there’s the reports and Graham v. Connor and really, what’s the point? The headline of Ta-Nehisi Coates’s piece at The Atlantic is “The Legal Murder of Tamir Rice.” Coates quotes Crawford, too, and then offers this explanation of the law:

To be found not guilty of murder, a police officer need not prove that he used lethal violence against a threat, but that he reasonably believed himself to be threatened.

Which is pretty much what Graham said, sort of, except that it’s completely wrong. It’s wrong for probably a dozen reasons, but here are two.

  1. To be found not guilty of murder, a police officer doesn’t have to do a thing. The burden of proof is on the prosecution. Ever and always. If the prosecutors don’t prove the elements of the crime, then the officer will (or at least should) be found not guilty. Any person, not just a cop, who honestly and non-delusionally believes himself to be in immediate danger of death or really serious physical harm may claim self-defense and, if the jury buys it, should be found not guilty.

But that’s not a special rule for cops and isn’t satisfied because a cop “reasonably believed himself to be threatened.” And, it’s an affirmative defense, which means the jury decides if the defendant proved it after the deciding that the state proved he was guilty of murder. It’s a legal justification, but not a basis for trial avoidance.

  1. Graham wasn’t setting standards for criminal cases. Rather, it was about when a cop can be sued in civil court, for damages, for using excessive force. It was about when the Constitution is offended by an officer’s use of force.   It has nothing to do with whether a cop is or is not guilty of murder.

Let’s repeat that last bit. Nothing to do with whether a cop is or is not guilty of murder.

We give police officers guns. We give them special dispensation to shoot people. The Constitution protects them from civil liability, from being sued by their victims, when they use those guns as long as the shooters believe, while they’re shooting, that it was reasonable for them to be shooting.

None of that is a license to kill. Murder remains murder. It’s a crime. The constitutional protection against civil liability is legally irrelevant to that.

Which is maybe something to tell the prosecutor. And then the jury.

Of course, there’s also that well known legal maxim.

Shit happens.*

*20 some years ago, a guy said “Shit happens” while watching the TV news report about a guy he’d shot and killed a few hours earlier. He’ll first be eligible for parole in 10 years. He’s not likely to get it.

7 Comments on this post.

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  • jdgalt
    15 October 2015 at 12:47 pm - Reply

    Our communities need to hold the Greg Pricketts responsible as well as the Timothy Loemanns. Let’s keep speaking their names, at least.

  • Greg Prickett
    16 October 2015 at 1:01 am - Reply

    “To be found not guilty of murder, a police officer doesn’t have to do a thing. The burden of proof is on the prosecution. Ever and always. If the prosecutors don’t prove the elements of the crime, then the officer will (or at least should) be found not guilty. Any person, not just a cop, who honestly and non-delusionally believes himself to be in immediate danger of death or really serious physical harm may claim self-defense and, if the jury buys it, should be found not guilty.” (emphasis added)

    That pretty much sums up my position, albeit much better and clearer than I apparently stated it.

    It applies for Loehmann, who made a spontaneous statement at the scene that Rice was reaching for a gun. The question is then did Loehmann fear for his life when he shot and killed Rice.

    I’ll defer to Jeff Gamso on how Ohio law handles this question. I’ll even stipulate that “shit happens” is not an adequate response to the question.

    My position is that Loehmann did fear for his life, that this fear was honest and not the product of a delusion, and self-defense applies, just as it would for a civilian.

    When Tyler Williams pulled a toy gun on 67-year-old intended robbery victim in Pennsylvania, the robbery victim shot Williams in the head with a .38 revolver. The old man is not being charged criminally either. Nor should he be.

    It’s tragic when something like this happens, but that doesn’t make it criminal.

    • Jeff Gamso
      16 October 2015 at 2:02 am - Reply

      Thing is, I left out a couple of important caveats on that self-defense thing:

      (1) The person claiming self-defense can’t be the initial aggressor. You don’t get to start or even cause the fight and then claim that the only way to end it without getting killed or maimed is by killing or maiming the other guy.

      (2) If you’ve got a chance to retreat, you’re supposed to take it. The Stand Your Ground laws reject that principle but with exceptions (attacked in your home or your car), Ohio doesn’t have one of those.

      It’s not clear to me, even if everything is exactly as Greg described it, that the cops weren’t the initial aggressors or that they had no chance to retreat. That’s where the cop exception comes in.

      • shg
        16 October 2015 at 6:41 am - Reply

        There is one critical detail in issue that continues to be glossed over. Loehmann was informed by dispatch that the individual had a gun. Loehmann arrived at the scene, alit from the car, and, per Loehmann’s statement, saw Tamir Rice “reaching for the gun.” Except this is a conclusory observation. Loehmann didn’t see a gun. Loehmann didn’t see Tamir touch a gun.

        Loehmann did the math in his head, if his statement is to be credited, that there was, in fact, a gun, even if unseen, and Tamir’s hand moved toward his waist, where he assumed the unseen gun to be. Was there a gun? Was it a real gun? Was Tamir reaching for the gun at all? Was Tamir reaching for the gun in order to pull it out to shoot Loehmann (put aside that we know that can’t be the case, as it wasn’t a real gun) or to surrender it to Loehmann, or to show Loehmann that it wasn’t a real gun?

        There is a split-second detail here: Loehmann had his weapon drawn, aimed at Tamir, finger on the trigger. It takes a fraction of a second to pull the trigger. Should he have waited until he saw the glint of metal? To say he shouldn’t have to wait until he can read the serial number is hyperbole, as no one argues that, but to wait until he saw something more than what he did see? Or can death be extrapolated from inadequate data points because anything more posed too great a risk to Loehmann than the law would require? Would it be too much to ask that Loehmann be held to wait for some confirmation, even the tiniest bit, that his math was correct?

        • Jeff Gamso
          16 October 2015 at 7:22 am - Reply

          And assuming your life’s in danger isn’t the sort of belief that a jury will buy – except for the cop exception.

      • Greg Prickett
        16 October 2015 at 12:10 pm - Reply

        In Texas, there is no duty to retreat for police since at least 1973 (Sec. 9.51, PC), and none for the general public since 2007 (Sec. 9.32, PC). See John Floyd’s article on it, here. Here, a jury isn’t even allowed to consider if the actor failed to retreat. I acknowledge that Ohio (and many other states, too) is different in that regard.

        My view is colored by my experience, but I don’t think that there is any way you can paint the police officers as the initial aggressors under my understanding of that concept. I also acknowledge that Ohio case law may view that differently. I would also be surprised if peace officers in Ohio are required to retreat. Traditionally, peace officers do not have to retreat.

        • Jeff Gamso
          16 October 2015 at 12:30 pm - Reply

          “Traditionally, peace officers do not have to retreat.”

          That’s the point about cop exceptions. Other people are required not to kill if it can be avoided. Cops are allowed to kill EVEN IF it can be avoided. You may or may not see that as good policy (just as Texans may like the idea and see it as good policy that they can kill when it isn’t necessary), but it means that there are special rules that allow cops to get away with (sorry, but there’s no other word for it) murder.