The Slatest

Tamir Rice’s Death Resulted From “Officer-Created Jeopardy.” So Why Were No Officers Indicted?

Cuyahoga County Prosecutor Timothy J. McGinty speaks during a press conference in 2013 in Cleveland.  

Matt Sullivan

The two police officers involved in the death of 12-year-old Tamir Rice in Cleveland will not be charged with a crime, officials announced Monday. Timothy Loehmann, a rookie officer, shot Rice on Nov. 22, 2014, after he and his partner, Frank Garmback, confronted the boy at a park in response to a 911 call about a man with a gun.

It turned out that the gun Rice was carrying was not real—a fact that has made the tragedy of his death stand out from the many other cases of police-involved shootings in recent months. But Loehmann and Garmback did not know the gun was merely a pellet gun when they drove their cruiser to about seven feet of him, and video footage of the incident captured by a security camera shows that Loehmann opened fire on Rice less than two seconds after he and Garmback pulled up.

The decision to not indict either of the officers was reached by a grand jury of nine people, who were impaneled by Cuyahoga County prosecutor Timothy McGinty. The decision was influenced by McGinty’s belief—presented to the grand jury as a formal recommendation—that there was no probable cause to conclude that Rice’s shooting had been a crime, as well as by testimony from witnesses and experts who appeared before the jurors in closed-door hearings.

Why did McGinty and the grand jury let Loehmann and Garmback walk? This is what millions of Americans are wondering today, more than a year after Rice’s death and about a year and a half into the existence of the Black Lives Matter movement.

McGinty’s office made the case for the nonindictment during an extended press conference this afternoon. But the central concept in the case—the one that it is crucial to understanding the grand jury’s reasoning—was never mentioned. That concept is known in law enforcement circles as “officer-created jeopardy”: situations in which police officers are responsible for needlessly putting themselves in danger, committing an unforced tactical error that makes them vulnerable—and then using deadly force to protect themselves.

Here’s how “officer-created jeopardy” relates to the death of Tamir Rice. As security footage of the shooting shows, Loehmann and Garmback’s car didn’t come to a stop until it was right next to Rice. In fact, the video indicates that the car was still moving when Loehmann opened the passenger side door and jumped out. Faced with a suspect they believed to be armed, in other words, Loehmann and Garmback decided to drive right up to him—thereby exposing themselves to the possibility that Rice could open fire on them with almost no warning.

The question the grand jurors had to answer, then, was whether to take that decision into account when determining the legality of the officers’ actions. Did it matter that no one forced Loehmann and Garmback to approach their suspect so aggressively? Did it matter that, by approaching him the way they did, they were the ones who had created the situation in which it then became necessary, in Loehmann’s view at least, to use deadly force?

There is no legal consensus on this. Indeed, it turns out that the death of Tamir Rice and its aftermath have unfolded at the very fulcrum of an important, unresolved legal debate over when it is and isn’t OK for police to use deadly force.

To understand the parameters of this debate, it helps to first look at the set of basic questions that always comes up when a law enforcement officer comes under legal scrutiny for using deadly force against a civilian. Was the officer justified in using deadly force? Was it reasonable for him to fear that the suspect posed a threat of death or serious bodily harm to him or others? Would other officers have acted the same under the circumstances?

As McGinty and assistant district attorney Matthew Meyer explained during Monday’s press conference, these questions arise because of a 1989 Supreme Court ruling in Graham v. Connor, which established the constitutional test by which all use of force cases involving the police must be evaluated in court. The ruling classified use of force as a form of “seizure,” meaning that it was subject to the Fourth Amendment, which protects against “unreasonable” searches and seizures. It also included several key lines that have since been cited endlessly by lawyers defending police officers from excessive force lawsuits.

The first of these key lines stated that use of force incidents had to be evaluated “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The other said, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

But there are two possible ways to apply the “reasonableness” standard set forth in Graham to a case like that of Tamir Rice. One looks only at the moment when the officer decided to fire his gun; that’s the view McGinty and the grand jury took in deciding not to indict. The other zooms out and examines the choices that the officers made leading up to that moment.

The first approach, which was advocated by the policing experts that McGinty hired to testify before the Tamir Rice grand jury, says that we shouldn’t “Monday morning quarterback” the tactical decisions of our police officers. The other says we should: As David Rudovsky, a civil rights lawyer in Philadelphia, put it to me recently, “As a matter of police professionalism and as a matter of law, if an officer acts recklessly in creating danger for himself, he shouldn’t be allowed to say ‘I was justified because he was about to hurt me.’ ”

This is sometimes referred to as the “final frame” vs. “phases of the encounter” question. And the Supreme Court is vague about how it should be answered: On the one hand the Graham ruling specified that we should consider “the totality of the circumstances,” but on the other hand, it zeroed in on the “the split-second decision” an officer makes when applying use of force.

There is arguably good reason for this apparent ambivalence: Different situations call for different tactics, and the law has to be flexible enough to allow officers to respond to crisis situations swiftly. As Chuck Wexler, executive director of the Police Executive Research Forum, a nonprofit that works with law enforcement agencies around the country, told me recently:

We expect a lot of our police officers. In an active shooter situation we expect officers to step up and act immediately and get the bad guy. For a police officer to pause in those situations—that’s not what we expect. On the other hand, in these other situations, where they’re dealing with an extremely disturbed person, or a homeless person, our expectation is different. There we expect them to step back, to slow down, to get additional resources if necessary. Resolving that situation right away is not what is needed—what is needed is a more balanced slow-down step back, calling in additional resources.

Wexler emphasized the importance of distinguishing between what is legal and what is right, from a tactical standpoint. When it comes to training, he said, “It’s not enough to simply look at it from a legalistic standpoint. You want to look at it in terms of, ‘Are there options that could have been used that would result in less force being used?’ That’s a higher standard than the legal standard.”

That doesn’t mean we should be satisfied with a legal standard that is, by many accounts, a mess. In an email, University of Virginia School of Law professor Rachel Harmon explained that while the Supreme Court’s “whole orientation is on the moment of force,” it has not “precluded looking at reckless conduct by the police officer himself or by the department … that could contribute to making force reasonable.” The matter is, consequently, unresolved, with some circuit courts having ruled that the moments leading up to a deadly confrontation cannot be taken into account, and other circuit courts saying they have to be. Even within the 6th Circuit, whose jurisdiction includes Ohio, rulings are split, with one decision, from 2008, concluding that “where a police officer unreasonably places himself in harm’s way, his use of deadly force may be deemed excessive,” and another, from 2007, saying that precedent “instructs us to disregard … events [leading up to a killing] and to focus on the ‘split-second judgments’ made immediately before the officer used allegedly excessive force.”  

The prosecutors in the Tamir Rice case clearly favored the latter interpretation—in fact, they cited it in their presentation today. Nevertheless it’s an undeniably confusing state of affairs that leads to inconsistent application of the law, and some policing experts would like the Supreme Court clarify the matter. Geoff Alpert, a criminologist at the University of South Carolina, and Jeffrey Noble, a former deputy police chief in Irvine, California, put it this way in a textbook chapter on police tactics:

The circuits that advocate a final-frame analysis are overlooking the holding in Graham that requires careful attention to the facts and circumstances of each case… and are focusing only on whether the suspect poses an immediate threat to the officers or others. Such a limited view prevents a thorough analysis of what could be the most intrusive action that can be perpetrated by the state – taking the life of one of its citizens. Most importantly, this wide disparity among the circuits demands some intervention by the Supreme Court to create a rule may be uniformly applied.

Maybe the Supreme Court will do that, someday. For Rice and the many other civilians who have lost their lives as a result of officer-created jeopardy, it will be too late.