A Cleveland Municipal Court Judge, Ronald B. Aldrine, released his opinion on Thursday afternoon that there is probable cause to charge Timothy Loehmann, a Cleveland Police Officer, with murder and other charges in the November 2014 shooting death of Tamir Rice.
Eight clergy members and community activists filed court papers Tuesday seeking the arrest of the two Cleveland police officers involved in that killing. Judge Aldrine noted, “Generally, the initiation of criminal proceedings in the State of Ohio is the preserve of the prosecuting authority within a given jurisdiction. However, state law does provide an avenue for a private citizen having knowledge of facts to initiate the criminal process.”
“We believe that (Loehmann) and (Garmback) caused the death of Tamir Rice in deeds that were unconscionable, reprehensible, and, yes, criminal,” the Rev. Jawanza Colvin, pastor of Olivet Institutional Baptist Church said at a press conference.
Judge Aldrine wrote, “The video in question in this case is notorious and hard to watch. After viewing it several times, this court is still thunderstruck by how quickly this event turned deadly.”
The relevant portions covers just 18 seconds where Tamir Rice suffers the wound, doubles up and falls to the ground. The judge notes that “the Zone Car containing Patrol Officers Loehmann and Garmback is still in the process of stopping when Rice is shot.”
He further noted the time, about four minutes after the shooting, “during which neither officer approaches Tamir as he lies wounded on the ground.” They restrain a young lady, Tamir’s sister, from going to her brother’s side. And it is nearly eight minutes before the paramedics arrive at the location.
The judge wrote, “The video depicts Rice approaching the Zone Car just as it pulls into the park but it does not appear to show him making any furtive movement prior to, or at, the moment he is shot. Again, because of the quality of the video, the young man’s arms are barely visible, but they do not appear to be raised or out-stretched. In the moments immediately before, and as the Zone Car approaches, the video does not display the toy gun in Tamir’s hands.”
Officer Loehmann ordered Tamir Rice three times to show his hands. He then shot Tamir Rice within two seconds of exiting from the car, the video shows.
The judge ruled, “There appears to be little if any time reflected on the video for Rice to react or respond to any verbal or audible commands given from Loehmann and Garmback from their Zone Car between the time that they first arrived and the time that Rice was shot. Literally, the entire encounter is over in an instant.”
Judge Aldrine ruled, “It is unquestionably sufficient to charge felony crimes in the words of the statutes.”
However, despite this ruling, it is unclear what will happen. Under the statute, the judge’s ruling is only “advisory in nature.”
He wrote, “The City Prosecutor may also decide to issue felony complaints in the Cleveland Municipal Court based upon his acceptance of the court’s determination that there is probable cause to believe certain accusations found in the affidavits posited against these Patrol Officers. However, those felony charges and perhaps some, or all, of the misdemeanor charges must ultimately be delivered to the Cuyahoga County Prosecuting Attorney and, will then be subject to his discretion, and resolved in the Cuyahoga County Court of Common Pleas.”
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Judge Aldrine forwarded his opinion to city prosecutors and Cuyahoga County Prosecutor Timothy J. McGinty. He did not order the officers to be arrested and cannot issue a warrant without a criminal complaint from the prosecutor.
The court filings were a move by activists to force the judicial system to expedite the case.
The prosecutor’s office released a brief statement:
“This case, as with all other fatal use of deadly force cases involving law enforcement, will go to the Grand Jury,” Prosecutor Timothy McGinty wrote. “That has been the policy of this office since I was elected.”
Judge Aldrine ruled there is probable cause for charges of murder, involuntary manslaughter, reckless homicide, negligent homicide, dereliction of duty against Officer Timothy Loehmann. Officer Loehmann is the officer who shot 12-year-old Tamir.
Judge Aldrine also found probable cause for negligent homicide and dereliction of duty charges against Officer Frank Garmback. Officer Garmback drove the car that responded to Cudell Recreation Center on November 22 when Tamir Rice was shot.
Judge Aldrine concluded: “To reach these determinations, this court applies the standard of probable cause, i.e., more than a mere suspicion but less than the quantum of evidence required for conviction.”
However, he warned, “The prosecutors, however, are ethically required to decide whether, applying the highest standard of proof required by law, to wit: beyond a reasonable doubt, it is more likely than not that a reasonable trier of fact will hold the individuals accused in these affidavits accountable for these, or any other crimes that might be alleged.”
Therefore, he wrote, “This court reaches its conclusions consistent with the facts in evidence and the standard of proof that applies at this time.”
—David M. Greenwald reporting
A question.
“However, state law does provide an avenue for a private citizen having knowledge of facts to initiate the criminal process. “
A quick Google search revealed that Federal Law does not allow for this process of private citizen initiated or petitioned criminal process, but that it is variable by state. Does anyone know whether California allows for this process ?
I believe in California, criminal prosecution is the exclusive domain of the state.
;>)/
Grand juries in CA can indict.
hpierce
Thanks for the point. And who can bring a case up for the consideration of the grand jury ? Can a private citizen or group petition for a case to be considered ?
answer to tia’s question: no. the grand jury process and in fact the decision to prosecute is made by the prosecutor/ da
to Tia’s question… any citizen can write to the Grand Jury for consideration… the Grand Jury can indict… I believe DP is also right… if a Grand Jury indicts, the DA still has a choice as to whether to prosecute the matter.
In the normal course of things, it’s actually the DA who brings criminal matters to the Grand Jury, but that is not common. Ferguson was different, probably to detach the DA from the decision of whether or not to prosecute, for better or worse. I’d defer to DP on that, though.
And even in Cleveland, it appears to be advisory at most and it’s rarely used. It was an interesting ploy to get a judge to look at it, but from a practical standpoint it carries no weight.
Biddliin and David
Right. But my question was is there a similar petition process available here in California? I had never heard of such a maneuver previously and it made me wonder.
Interesting. When a prosecutor decides to charge a person with a crime and then decides to present the information to a jury in a trial do they use the probable cause standard or reasonable doubt standard in their analysis of the case? I recall the local prosecutor publicly stating in the Zimmerman case that no charges would be filed because the case could not be proven beyond a reasonable doubt. It looks like the judge’s decision is not binding on the DA in Cleveland. It creates a challenge for the DA on deciding what to do. It is also interesting that the driver of the patrol car was charged with crimes. I doubt that he had any expectation that the other officer would react in the manner that he did. A question for the lawyers out there. Does a police officer have a legal obligation as opposed to a moral obligation to provide medical assistance to an injured person. Does that duty change if the officer caused the injury as happened in this case. Does the driver here have a duty?
In order to hold someone to answer for a crime – whether it’s through a preliminary hearing or a grand jury indictment the standard is probable cause. However, to get a conviction it is proof beyond a reasonable doubt. So the question that a prosecutor must weight is whether they can get a conviction because if they can’t they waste everyone’s time and inflict needless pain on the defendant.
“Does a police officer have a legal obligation as opposed to a moral obligation to provide medical assistance to an injured person…”
There was a case recently where an undercover NY Cop was found guilty of assault in a motorist’s beating, they found that he failed to attempt to stop or report an incident where the guy was beaten. That doesn’t completely answer the question, but I think it tells us where an obligation may lie.
addressing the issue of medical assistance to an injured person…
this is a florida ag opinion and obviously statelaws vary (link): ” A law enforcement officer, including a police officer, has a legal duty to provide aid to ill, injured, and distressed persons who are not in police custody during an emergency whether the law enforcement officer is on-duty or acting in a law enforcement capacity off-duty.”
it looks like most of the caselaw is focused on tort claims and whether police officers are covered under good samaritan laws (which would insulate them from civil liability).
i’ll have to look further.
On a side note this is the same DA in Cleveland that took the white police officer to trial when the officer jumped on the hood of a car and fired 15 shots into the unarmed black occupants of the vehicle after a pursuit and lost. It would be hard for that community to challenge this DA’s zeal for prosecuting cops.
the question will likely become did losing that case make the prosecutor more reluctant to take this case to court. i think the verdict out of 15 shots fired was legally questionable on the grounds that they couldn’t prove which officer actually killed the person. in that case, the simple remedy is to presume that all officers who fired their weapons in such a manner caused the death of the individual and its therefore irrelevant which one did. but that again illustrates the difficulty in prosecuting the police for on duty conduct.
DP,
Couldn’t the DA have charged the officer with some offense like assault with a deadly weapon, negligent firing of a gun, or some offense that did not include death as part of the crime?
He was charged with involuntary manslaughter. He fired 47 of the 132 shots including 15 at point blank range. Let’s say we have three guys standing next to each other firing at two suspects, the two suspects are killed. If we can’t prove whose bullet killed them, do we really acquit them all or do we find that they are all responsible for the death irrespective of whose bullet actually caused it? Isn’t that part of the definition of involuntary manslaughter?
zaqzaq
“ Does a police officer have a legal obligation as opposed to a moral obligation to provide medical assistance to an injured person. Does that duty change if the officer caused the injury as happened in this case. Does the driver here have a duty?”
Very good questions. I was making the assumption that as designated first responders, police would have the legal obligation to provide medical assistance, and yet we have recently seen several instances in which they have not done so. I now realize that this was an assumption on my part and not based on any knowledge.
The ancillary question that arises for me is would we want police officers on our force who did not see it as their duty whether moral or legal to go to the assistance of a citizen in obvious need of medical care if they were able to do so safely ?
That is why I distinguished between legal and moral obligation as the judge seemed upset that the officers did not render aid to Rice. Was that a factor in the charges for the driver?
DP
Thanks. That really underscores just how powerful the office of the DA really is. And for me makes it more than a little sad and sobering that we have no one stepping forward to challenge the current DA. I am not saying that the candidate would be a better choice, merely that I do not believe that this should be an office held in perpetuity because of lack of alternative candidates or perceived strength of the current office holder.