December 28th ruling not to indict police officers: Tamir Rice case

Soon after Christmas, Timothy J McGinty – the Cuyahoga County prosecutor overseeing the investigation of the police officers involved in the Tamir Rice case spoke of empathy. Or to be more accurate, he spoke of his efforts to understand how the 12 year-old child may have felt in the two seconds before he was shot and killed by Officer Timothy Loehmann. 

“If we put ourselves in the victim’s shoes, as prosecutors and detectives try to do, it is likely that Tamir — whose size made him look much older and who had been warned that his pellet gun might get him into trouble that day — either intended to hand it to the officers or to show them it wasn’t a real gun.”

Embedded in this sentence – in the uncertain language, passive mood and shift in perspective (if we are trying to understand how Tamir felt, why are we being told how he looked, or that he had been warned that 'his pellet gun might get him into trouble'?) - is core unease, a kind of tension.

McGinty gestures towards empathy, but is unable to break out of his natural reflex to see the events from the point of view of the white police officer. The previous sentence read: 'At the point where they suddenly came together, both Tamir and the rookie officer were no doubt frightened.'

So in this historic moment, the 'frightened' adult officer, Timothy Loehmann who used lethal force against a child, within two seconds of arriving on the scene and who had been rejected by three previous police departments and received a damning appraisal of his professional conduct, the report noted his inability to 'follow simple directions (and) dismal handgun performance' were somehow equal. The adult man with a real weapon and the boy with a toy gun were united by their fear.

Prosecutor McGinty then continues to offer his assessment of events: 

“As they raced the mile toward the rec center, the police were prepared to face a possible active shooter in a neighborhood with history of violence. 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. Police are trained that it takes only a third of a second to draw and fire a weapon at them — and therefore they must react quickly to any threat. Officer Loehmann had just seen Tamir put an object into his waist as he stood up in the gazebo and started walking away. A moment later, as the car slid toward him, Tamir drew the replica gun from his waist and the officer fired. Believing he was about to be shot was a mistaken — yet reasonable— belief given the high-stress circumstances and his police training. He (Officer Loehmann, not Tamir Rice, ed.) had reason to fear for his life.”

(Notice also how McGinty refers to the black victim by his first-name only and the white officer via his title and surname). 

“Every time I think about this case, I cannot help but feel that the victim here could have been my own son or grandson. Everyone who investigated this case feels the same way. All of our children go to parks and rec centers. No parent follows their 12-year-old around all day to make sure they don’t get into mischief. That is why this case taps such profound emotions in us all. The Rice family has suffered a grievous loss. Nothing will replace Tamir in their lives.”

McGinty expresses apparent empathy for the Rice family; although the lack of precision, how could Tamir Rice be both his son and grandson? And reference to Rice's apparent 'mischief' make me wonder how genuine it is.

His next line returns to the perspective of the police: 'The police officers and the police department must live with the awful knowledge that their mistakes – however unintentional – led to the death of a 12-year-old boy. ' Mistakes, however unintentional ...

Perhaps my focus on McGinty's statement might seem surprising, even cold. We are talking about a child here, a 12 year-old boy, killed in a public park, shot to death by a police officer while playing with a toy gun. We are talking about a son and brother: a boy, whose distraught sister was handcuffed by the police and then shoved into the patrol-car, unable to comfort, to render assistance to her brother who at that point was still alive (the police waited four minutes before returning to Tamir to see if he needed medical assistance).

Elsewhere in the statement, McGinty spoke of the case as if it were a natural event – lacking human agency: 'Given this perfect storm of human error, mistakes and miscommunications by all involved (emphasis added) that day, the evidence did not indicate criminal conduct by police.'

But Rice's death was not an act of nature, outside human control. This death, although familiar, was far from natural. It was against nature – against the natural order of things, no matter how frequent such violence might be in the United States.

More than that Officer Loehmann had a choice. The police officer was not a victim of a 'perfect storm' of uncontrolled external forces, or his fear; this was not a Greek tragedy or a nineteenth century novel where a hapless hero is propelled by 'mistakes' made by others or himself. He had a choice. In a very powerful piece for the New York Times, 'Tamir Rice and the Color of Fear' Brit Bennett analyses the notion of 'reasonable fear' that informed the prosecutor's case. (Throughout the year-long 'investigation' leading towards the Grand Jury judgement not to indict the officers, prosecutor McGinty made no secret of his belief that the two officers should not face court).

Bennett writes of the trouble with 'empathy' and focus on fear:

“How do we determine reasonability? Who determines whether a fear is “objectively reasonable,” as coined in the report, as if reason can be completely impartial? According to the prosecutor’s report, a reasonable fear does not have to be an accurate one. “A reasonable belief could also be a mistaken belief,” the report outlines, “and the fact that it turned out to be mistaken does not undermine its reasonableness.” (…)

The report also dismisses the relevance of whether Rice heard the police yell for him to show his hands. The officers testified that the cruiser window was rolled up, but the prosecutor’s report states that “even assuming Tamir could not have heard Loehmann’s warnings given from inside the car, Loehmann felt he had no choice in the instant he used deadly force.” The report reiterates the circular argument used by the Supreme Court to define reasonability: A fear is considered reasonable if another reasonable person would fear it.”

And that 'reasonable person' usually resembles those being investigated, in this case white police officers who also received surprising advantages in the legal process; being allowed to provide written statements to the court, rather than being cross-examined. While legal, this is not standard practice.

But I wonder why such emphasis is being placed on these subjective notion of fear. Why not focus on whether sufficient efforts were taken by Officer Loehmann to avoid the use of extreme force? Why not focus on whether or not Officer Loehmann assessed the situation appropriately, with all due care given to the avoidance of causing harm? Ohio is an 'open carry' state which means that even if Rice had a real gun, rather than a toy, or was an adult he had not committed a crime. Keeping this in mind, that carrying weapons in Ohio is legal, why was Officer Loehmann so frightened that he thought he might die? Hadn't he received training on how to respond to civilians carrying guns in public spaces?

McGinty refers to the belief that the two officers believed that they were approaching an 'active shooter' situation, but this is not only illogical, but bizarre; Tamir Rice had a toy, which for obvious reasons could not shoot bullets. Moreover, Officer Loehmann shot Rice two seconds after arriving on the scene, from a close proximity. If he seriously believed he was entering a life-threatening situation, why didn't he keep his distance, take the time to assess the situation and then act? 'Any fear feels reasonable in the moment,' Brit Bennett writes. 'And if black bodies are inherently scary, white fear will always be considered reasonable.'

Something that continues to surprise me personally is the emotional charge behind white racism, where the perpetrator of the crime seeks out the status of victim. Whether it is in a colonial context, or modern-day US, those committing the violent acts desperately cling to the role of victim, while seeking sympathy from others. We are encouraged to empathise with them, with their confusion and their fear and then excuse whatever they did because of these misguided, or mistaken (or even completely illogical, groundless) fears. This impulse fascinates me, especially since it is so heartfelt.

Rare is it for white supporters of Officer Loehmann to imagine how such bluster must feel for the surviving family of Tamir Rice and his mother, Samaria, who continues to fight for justice, despite personal attacks. In an interview with Ebony from June last year, Samaria Rice said how 'Tamir is getting me up every morning because I’m still waiting on answers. I still don’t know what happened. I don’t want anyone to have to suffer like this. I want to be a part of making change. Whatever we have to do, I’m willing to do. I believe that we are in a war. We are in a war. They are out here killing us and whatever I can do to bring awareness to that ...'

Many months ago, I read that Samaria Rice and her surviving children were for a time homeless. No longer could Tamir's mother bear living so close to the park where her son had been so brutally killed. This stopped me cold. And reminded me how after each death, after each statistic – and all the outrage, or shameful justifications on behalf of those supporting the perpetrators – there is family, still alive and still grieving.

This essay was re-published in the Australian journal, Arena (Feb-March, 2016)