

by Peter Moskos

October 16, 2015

"Was the Shooting of Tamir Rice 'Reasonable'?"

Another good story by Leon Neyfakh in Slate. This one with some legal analysis on the two reports that judged the shooting of Tamir Rice in Cleveland "reasonable."

Here's a link to the audio of the radio dispatch.


john mosby said...

Prof, I just remembered something that I thought of during the loosie-cigarette guy incident, and it also applies to Cleveland.

Time and distance can be the officer's (and the suspect's!) friends, because they may allow the situation to be analyzed and de-escalated short of the use of force.

However, we are all aware of situations where time and distance turn out to be the officer's (and the public's) enemies.

If you stay at double-arms-length from loosie guy and let him talk himself into exhaustion while you use your verbal judo, yes, you may get compliance with no force expended.

However, you may just give more time for a hostile crowd/audience to gather, which may egg loosie guy on to more antics, and possibly provide him with allies to jump on the scrum when you finally resort to force. Taking him down quickly and getting him and yourself out of there may be the best balance of law/order.

Similarly with Cleveland. Yes, if you take distance and cover, you are increasing your own chance of survival, especially since your gun probably has longer effective range than his. But what that really means is that if he is a danger, he will shoot at you, miss, and hit innocents. Or at best, you'll have a drawn-out conversation/negotiation during which all the grateful citizens who called 911 on the guy will come out of their homes, drape garlands of flowers on you, and plead with the young gentleman to cease his deviant ways and surrender to the nice officers.

If you swarm him before his (apparently) addled brain has a chance to react ("hey, why's that police car driving on the grass? Waitaminit, he's driving at me! Huh?....") you may be able to subdue him with non-lethal force (which for purposes of this comment includes a muzzle in his ear!) before he has the chance to draw.

Especially if your experience with criminals is that most of them are rational actors who will either take the hit or run, versus try to shoot it out. Then all you do by stopping for cover/distance is give him a head start on the footchase. And now you have a man with a gun who could be anywhere in a residential neighborhood. What if he busts into a home and starts a 9-hour standoff that ends in all the occupants getting raped and killed? The same nay-sayers will be asking why you didn't take the guy down when you had a chance, you woulda shot him if he was in Shaker Heights, why doesn't the neighborhood get the same protection, etc.

Not saying I would have duplicated the Cleveland tactics - just repeating that the solution is always obvious from hindsight.


Peter Moskos said...

In many situations, I'm a fan of the proverbial "bum rush" over verbal commands and compliance. Like a stolen car? You rush it at a red light and take the people out. This is not taught in the academy. That's a shame because what is taught doesn't work on the streets of Baltimore. What do you do if they just ignore your commands and drive away? Sure, somebody may shoot you as you rush the car. But I thought that was less of a risk than, as you talk about, the advantages of the element of surprise and quick action.

That said, there is a better way to approach an armed suspect. There is no reason for a cop to ever approach an armed suspect like this the way the police did before shooting Rice. It's too risky to the cops. Especially when the "reasonable" thing to do when a few feet from an armed suspect is to shoot the suspect. How else could have this possibly ended? That's the tragedy.

There shouldn't be a hard and fast rule. Different situations to demand different tactics, sometimes thought up on the fly. But I've yet to hear a cop applaud the tactics of these two numskulls in Cleveland.

Concerned citizen said...

Prof. Moskos,
While their tactics are unsupportable, they may have been partly motivated by the adrenaline they were pumping after their dispatcher said, "... by the youth center... male...pointing a gun at people..."

Peter Moskos said...

Maybe. Sure had this been an active shooter situation, it might been different. And maybe they thought it was. But I doubt it. (And then the driver should have just rammed the car into the armed kid.)

I doubt it because armed person calls are not exactly rare. The Eastern District put out 6 a day when I worked there. And the majority of them are complete bullshit. (About 12.5 percent end up with even a report being written.) An armed person call wakes you up. There might be an armed person. But it doesn't make you go all cowboy.

Adam said...

To be fair, the typical Baltimore armed person call is "some guy has a gun", not "some guy keeps pointing a gun at people", which is what they heard.

The FBI agent's report makes an interesting point, which is that the 911 call told the officers the suspect was by the swings. So expecting to see someone pointing a gun by the swings, they drove up seeing only an apparently unarmed, unthreatening person sitting in the gazebo about fifty feet away. Perhaps it didn't register to them that that might be the suspect, and so they were driving through the park thinking it would be a "gone on arrival" disposition. And as they were driving past the gazebo, Tamir got up from his seat and walked toward them, so the driver stopped (perhaps recognizing him as fitting the suspect description), and as he did so, Tamir reached for the toy gun in his waistband, prompting the other officer to hop out and shoot.

Now, that version of events doesn't win the cops an award for tactical approach of the year, but it's a bit different than the Keystone Cops version of events most people assume to be correct. And granted, I'm just speculating. But so is everybody else.

Peter Moskos said...

I hadn't thought of that. As speculation goes, it's pretty good.

And yeah, the way the call came out does give it a bit more urgency: "In the park, by the youth center, there's a black male sitting on the swings. He's wearing a camouflage hat, gray jacket with black sleeves. Says he keeps pulling a gun out of his pants and pointing it at people."

I assume you also noticed that some smart woman asks, "How many calls you getting for that?"

"Just the one, so far"

Urgency goes down.

They're not responding super urgently. They're maintaining post integrity. Though I'm not certain which unit ends up getting their first.

Adam said...

Good point. And perhaps that makes it more likely that the officers arrived thinking "this will be an 'Edward-no'" (as they say in Baltimore), and then they thought "Hey, what's up with this guy walking over to us?" or "Hey, that guy matches the description!"

Peter Moskos said...

"...And he's got a gun!"

All true. But I still can't get over the fact he drove right up to him. He put his partner in harm's way. He made him get footing on icy and muddy grass. And not only is it horrible tactics, it's a real asshole cop thing to do, to drive right into a park for no good reason, leaving permanent tire tracks. Especially since there's a paved sidewalk and a street exactly 10 feet away.


bacchys said...

The killer was shooting well before he could have had any recognition that Rice was reaching for his gun. He came out of the car shooting. From the distance they couldn't have seen a pistol because Rice had stuffed it in his waistband.

In some ways it's akin to the murder of Jon Crawford in Beavercreek, OH. There, some asshole called in a false report he was walking around the store aiming a rifle at people. The cops respond, as they should have. But when they arrived and **did not see** Crawford violating any laws, opening fire wasn't a reasonable response. But, as we've seen over and over and over again, it's very, very hard to hold the police accountable for killing people.

Peter Moskos said...

Come on now. I have to assume the gun was out. It probably was (though I can't be certain). It is hard to hold cops legally accountable for killing people. But do you really think this cop pulled the trigger without seeing a gun? I've never even heard that before with regards to this shooting. Since this is the first I've heard that cop pulled up to a 12 year old a kid and shot him without knowing there was a gun. Let's assume there was a [fake] gun. And then move on from there.

bacchys said...

You can see gun isn't out. It looks like he **might** be reaching under his coat as the officer jumps out, gun drawn, but there's not enough time for the officer to be reacting to seeing a firearm. He's "reacting" the same way the Crawford killers did.

Yes, I think this cop pulled the trigger without seeing a gun. He did it because he was under the impression this was a twenty-something with a gun, and that's who he was shooting. They were calling Rice in as a twenty-something while he lay bleeding to death.

Peter Moskos said...

Really? Then there should be lot more dead 20 year old black people. Because there are a lot of armed person calls.

That Fuzzy Bastard said...

Yeah, it's quite visible on the tape that Rice isn't holding his gun out, and the time between when the car pulled up and when the officer fired isn't enough for the gun to come out. Maybe he was reaching in his coat.

So the idea that you "have to assume the gun was out" is simply wrong, and that "have to" suggests a really misguided premise. Going by the physical evidence, rather than assumptions, it's pretty clear what happened: The cop who got out of the car, like his partner, went cowboy and thought he was being graded on time. After he'd killed Rice, he realized he'd made a mistake. And then, like his partner, he lied to cover it up.

Peter Moskos said...

Of course if the gun isn't visible there's no reason to shoot him.

But please give me a link and a time where I can see this. I'm always willing to change my opinion when confronted with new facts.

Adam said...

What lie? What cover-up? Both officers declined to give statements to investigators. The only statement I'm aware of was one officer's on-scene utterance to the off-duty FBI agent that Rice was reaching for the gun. That's also what the grainy video appears to show, and that's the basis on which the two independent reports deemed the shooting justified. Watch the version on the NYT page, which slows it down and zooms in. Start at about the 1:00 mark: http://www.nytimes.com/2015/10/12/us/tamir-rice-outside-reviews-cleveland-police-charges.html?ref=us&_r=0

If a person who matches the suspect description in an armed person call walks toward the police car, comes within 7 feet of the officer, and starts drawing what looks like a real gun, it is reasonable for the officer to shoot. Do you expect him to wait and see what the guy plans to do with the gun? Granted, none of that takes away from concerns about the officers contributing to the exigency by driving right up to Rice, but if you're looking at just Rice's final movements and the officer's response, I don't see much room for criticism.

Peter Moskos said...

Who am I to believe: people who know there was no viable gun or my lying eyes?

That Fuzzy Bastard said...

I can't see the Times link, but the video is online. It's frankly very hard to tell whether Rice had the gun in hand or not---the camera is far away, and the frame rate is low. Maybe he did, maybe he didn't. Even the officer's lawyer is not as sure as you seem to be.

But the officer's word is not enough. The officers said that they "ordered Rice to stop", but witnesses have said that they did not hear any such commands yelled, and given how quickly the car pulls up, it's hard to imagine there was time to shout commands, and certainly not time for Rice to hear them. Maybe they yelled through the window? Maybe they didn't. Given that two weeks before the shooting, the Justice Department had blasted the Cleveland PD for excess force and lack of discipline, they're as credible as Michael Slager.

Oh, and before you get back to vilifying the murdered kid's mother for not knowing where her 12-year-old was at all times, please note that toy guns were not allowed in his house; that's why he was excited to get this one.

Meanwhile, the driver and the dispatcher will be just fine. It's not like anyone is actually pushing to have them disciplined. That just gets brought up when people want to keep the officer who pulled the trigger from being disciplined. Everyone will keep their job. And every civilian in Cleveland just got another reminder that police have only one tool in their box. And if they misuse it, that's your problem, never theirs.

Peter Moskos said...

"Maybe he did, maybe he didn't"?! Since when did you take a crazy pill?

We *know* he had a gun. And -- and this is where it gets absurd -- I c-a-n s-e-e a G-U-N! (Maybe you need to find the Times link) Enough already. What the officer said or didn't say doesn't matter to me in the least. (Though it does matter in terms of the dept wanted to get rid of him and him lying on the report.)

Just because the video is fuzzy doesn't mean the gun was fuzzy in real life. Also, legally, as a reasonable police officer, I and people like me are the ones that get to judge.

Peter Moskos said...

And though I don't want to harp on the parents.

Toy guns now allowed in the house? Sure. Maybe because there were too many real guns around. She packaged drugs in her home and at least once (in 2001) committed an armed robbery. Tamir's father has a history of domestic violence. So does a more recent boyfriend of his mom. In May, mom moved to a homeless shelter.

Forgive me for thinking this isn't the ideal environment to raise a child. Maybe you disagree. But would you let Samaria Rice and her boyfriend babysit *your* child?

That Fuzzy Bastard said...

We know he had a toy gun. We don't know if it was out. Maybe the TImes link enhanced it, but on the video from CNN, it's simply too fuzzy to see if it's out or not. Maybe he had it in his hand. Or maybe he stood up, and the officer thought he was about to pull it (rather than the more obvious conclusion that he was standing because he was startled by some asshole doing donuts on the lawn).

What the officer said or didn't say should matter a great deal to anyone else who cares about decent policing. If officers can give the most exculpatory version of their fuckups, and have it believed (perhaps with a wink and a nod), then it is impossible to improve policing, or for police to treat citizens fairly. if we just believed Michael Slager, we'd be fools. If you believe that Loehmann and Garmback told Rice to drop his weapon, and gave him a chance to do so, before they opened fire, you're not paying attention to the evidence. That means they lied to investigators. That makes them people who lie to the law.

Whether or not I would let his mother babysit my kid has nothing at all to do with whether his killer should be treated as a killer. You keep acting like the character of the victim, or his family, or his neighborhood, has some impact on whether or not the killing was justified. If some mook shoots a guy, I don't care about whether the guy had a good home life, I care about the shooter.

Peter Moskos said...

You're really not going to change my mind about what I can see. Please stop trying. Beyond that, I don't really care what you see or don't see.

As to it being bad policing, I agree wholeheartedly. Do I know if the cop told him to drop the gun? No. But I seriously doubt he did. But in terms of the legal standard of criminality on their part, it doesn't matter. Yes, it does matter in terms of firing the cop.

As to the parents, all I'm saying is that they also contributed to the situation in which their kid was killed. I don't know why that can't be said. Don't play with guns. Don't play with matches. Know where you kid is. Seem like reasonable rules to me.

Tamir was killed by police, yes. But he had already been failed by society and his parents. If the goal is to keep kids like Tamir alive -- and not just focus on the criminal action of cops -- there are many places and people and institutions that could see improvement so that dumb cops don't end up shooting a kid playing with a guns in a park.

Peter Moskos said...

I'm going to end my contribution by quoting Norm Stamper, from a previous post:


A video of the [Tamir Rice] shooting — showing a police car driving up next to the boy, who was shot two seconds later — demonstrates that the shooting never had to happen, Stamper concludes, saying the officer could have taken cover behind his car and evaluated the situation more calmly.

"A more mature, experienced, confident police officer would have better understood what he was facing,” Stamper says.

At the same time, he says Rice’s parents never should have let him outside with a replica pistol, and schools and police should ensure that children know an essential fact of life: No one seen to pose a mortal threat in the presence of police should expect to walk away, or even to survive.

“If you point a gun at a police officer, you have punched your ticket,” Stamper says. “I don’t care if it’s a toy gun.

Andy D said...

Peter, I think the Stamper quote you posted says just what concerned me about the Slate article. If we start judging the outcome of a use-of-force situation based on the tactic employed, there are a lot of young cops who will end up in jail instead of becoming veterans, because learning good tactics takes time and experience rather than 20-something weeks of academy training and a couple short months of field training. That is even more true in areas less urban than Cleveland or Baltimore. If we judge the actions leading UP to the use-of-force in too detailed a fashion, we are opening another can of worms entirely: being young and/or inexperienced (and excitable like a lot of young people in high-stress, high-adrenaline jobs) will make you immediately vulnerable to prosecution. You'll get no argument from me that these tactics were pretty awful from my point of view. The argument from the Slate article that we SHOULD judge based on hindsight and decide from the safety of our desks whether the tactics used leading up to a confrontation were well-chosen feels dangerous to me. I think that is why the USC decided on the standard they decided on in Garner and Graham. Problematic as those standards are they are more objective than some "maybe they could have done X" standard.