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.
- 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.
- 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.
*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.