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The Tamir Rice Rule

Cleveland’s prosecutor made a mockery of the process for adjudicating police-involved killings. Here's how to fix it.

Associated Press

Monday’s revelation that no one will go to trial for the killing of 12-year-old Tamir Rice probably surprised no one. Surely, we all knew how this would end. Just one week earlier, yet another black family—Sandra Bland’s—did not get the legal closure they sought after their loved one died in the hands of police. A grand jury could “indict a ham sandwich,” but police officers who kill citizens tend to escape that outcome with alarming regularity. Per the Washington Post’s count, 18 officers have been charged with crimes related to “officer-involved” shootings in 2015—and that’s worthy of note because only 54 were indicted in the prior 10 years. The Post’s reporters attribute the rise, in part, to the fact we’ve been able to see those shootings. “In 10 of the 2015 cases,” the Post wrote, “prosecutors had a video record of the shooting.” Then they quote a Chicago pastor who thanked God for technology and expressed a hope that “maybe it’s finally helping us crack the blue code of silence.”

If only it were that easy. Police officers don’t steer clear of these kinds of consequences merely because they stay quiet about the misdeeds of other cops. They have help. Not only are there structural standards for legal killings that favor an officer’s “objectively reasonable” survival instincts over the life of an unarmed citizen, but also the very lawyers charged with seeking punishment for the officers can enforce those standards. The Tamir Rice investigation is the clearest example yet of why independent investigators and prosecutors must be assigned by state authorities to every case of police violence.

That was made clear at Monday’s press conference, where Cuyahoga County Prosecutor Timothy McGinty announced that a grand jury had determined that no criminal charges would be filed against Timothy Loehmann and Frank Garmback, the two Cleveland police officers involved in Rice’s death. Given the lack of success lately in that arena, the Rice family had been girding themselves for this outcome. But the grand jury got a big push from McGinty himself, who revealed that he’d recommended that no charges be filed, in direct contradiction to the mandate of his elected office: to faithfully seek indictments and prosecute cases so as to make his jurisdiction a safer place to live. “That was also my recommendation and that of our office after reviewing the investigation and the law,” he said on Monday. 

McGinty had long been under fire from Rice family attorneys and his fellow Democrats for his perceived slow-footing of the investigation into Rice’s death. He responded by accusing the family of being “economically motivated,” and made clear on Monday that he doesn’t care about appearances. Rather than offering regret about the grand jury’s decision and arguing that they made the wrong call, McGinty and his lieutenants chose to do the exact opposite.

I’m not an attorney, but everything about McGinty’s Monday presser seemed off from the start. Calling the shooting “a perfect storm of human error,” he erroneously laid the blame at the feet of a dead 12-year-old along with the two officers and the dispatcher who neglected to inform them that the 911 caller said repeatedly that the Airsoft pellet gun Tamir had on him was “probably fake.” In accordance with the three reports their office had solicited, each of which declared the shooting reasonable and legally appropriate, McGinty and Assistant Prosecuting Attorney Matt Meyer launched into a detailed explanation of why the officers weren’t criminally liable. 

Tamir’s above-average height and weight also kept coming up; MSNBC chief legal correspondent Ari Melber rightfully noted that neither of those statistics substantiated the officers’ decision to use deadly force. McGinty qualified the officers’ actions as “mistakes,” and said, “There are in fact memorials to two slain Cleveland Police officers in that very park. And both had been shot to death nearby in the line of duty.” That’s a fact that might be interesting if McGinty were a tour guide showing us around the Cudell Recreation Center grounds, and not a prosecutor discussing the shooting death of a young boy. Meyer blamed the lack of medical attention Rice was given at the scene on Loehmann’s ankle injury and on Tamir’s sister, who panicked at the scene and was restrained by Garmback. Telling the assembled press that “we don’t second-guess police officers” was a doozy, given that the entire job of the prosecutor’s office in this case was to second-guess two police officers.

They also took pains to show how “real” the pellet gun looked, and McGinty said that “it is now indisputable that Tamir was drawing his gun from his waist” as the police car approached him, ignoring a report from a biomechanical expert that stated that Tamir had no time to do so before he was shot. 

It was a presser you might see a defense attorney give. Their performance lent credence to earlier criticisms from Tamir’s mother, Samaria, and her attorneys concerning the behavior of McGinty and his office before the grand jury: badgering and mocking expert witnesses provided by the family, weakening their own case while defending the officers’ due process. Having committed this obvious a dereliction of duty and then crowing about it, McGinty should resign immediately.

While that step might strengthen the prosecutor’s officer by mere subtraction, it won’t solve the inherent issue: the fact that in cases involving police violence, local prosecutors are required to investigate the very police department whose cooperation they depend on for so many other cases. McGinty is a symptom of a structural problem that won’t be solved with his departure either now or next year, should he be voted out. 

Two weeks ago, the Rice family sent a letter to U.S. Attorney General Loretta Lynch requesting an independent federal investigation into Tamir’s death—but the Department of Justice statement after Monday’s announcement didn’t offer much hope that even if one were launched, an indictment on civil rights charges would be reached. Similar pleas have been issued by other families, many of them African American, as they seek closure in the courts. What the Rice family and others like them need is for local prosecutors like McGinty to be recused in cases involving police violence. 

It’s not unheard of. In July, New York Governor Andrew Cuomo signed an executive order that appoints state Attorney General Eric Schneiderman as a special prosecutor in any cases where law enforcement officers are involved in the deaths of unarmed civilians, with an allowance that Schneiderman can also review cases involving armed decedents. It’s the first state in the union where that is the standard, and it should not be the last. To boot, even New York should expand the mandate to include police violence in which someone isn’t killed; someone shouldn’t have to die in order for the state authorities to enforce a greater degree of accountability for officers.

Ohio Governor John Kasich’s statement after the grand jury’s ruling offered the standard worries about “anger and frustration” that we’ve come to recognize as pleas to black people not to riot after such rulings. It would have been better had he recognized how McGinty manipulated the grand jury system to get two cops exonerated in the death of a kid, and declared that he would follow in Cuomo’s footsteps. 

Granted, it won’t solve police violence, nor guarantee indictments or convictions. Ohio Attorney General Mike DeWine was criticized, as he should have been, for his sloppy 2014 handoff of the John Crawford III police shooting case to a special prosecutor who also failed to secure an indictment. Preferably, the investigations could be fully independent of elected officials so as to avoid any partisan political entanglements. Federal intervention may also still be warranted, particularly in cases where civil rights violations have occurred. But knowing that no case involving police will fall into the hands of a local prosecutor like McGinty is the immediate preventative measure all state governments must take.  

This should take precedence over band-aid solutions to police violence such as body cameras, particularly given that footage of Tamir’s shooting showed an ostensibly criminal action. Right now, Clevelanders and many others across the nation are stuck with local justice systems that allow police violence to continue unabated, and without consequence. We need to protect citizens not just from the Timothy Loehmanns of the world, but also the Timothy McGintys.

Listen to our November episode of INTERSECTION, featuring my interview with Tamir’s grandmother.