My View II: Would Indictments Stop Preventable Police Shootings?

Captures from the Shooting Video Released by Cleveland Police following the November 2014 shooting

While there has been a lot of discussion about whether the police officer who shot 12-year-old Tamir Rice should have been indicted, a bigger view of the case points to a more systemic mass failure that led to the youngster’s death – which begs the question, would indicting police officers result in fewer shootings?

Washington Post columnist Radley Balko, a fierce critic of police use of force, argues no in a column this past week. While cases like Ferguson, Staten Island, and now the Tamir Rice case out of Cleveland are notable for the of lack indictments, a growing number of high profile cases, most recently the shooting of Laquan McDonald in Chicago, have resulted in murder charges.

Radley Balko notes that, while the number remains “incredibly small,” the number of indictments has increased over the last few years from around five per year over the previous decade to 18 this year. Notably, of course, that is out of more than 1000 deaths at the hands of police, although many of those shootings are unquestionably justified.

Mr. Balko writes that “even those indictments rarely lead to a conviction.” And, while he acknowledges, “Some are justified by any reasonable definition of a threat,” we still want “police officers to kill fewer people — as few as possible.”

A New York Times article notes, “Even with indictments, juries will remain reluctant to convict police officers absent evidence of malice, said Eugene O’Donnell, a former officer and prosecutor who now teaches at the John Jay College of Criminal Justice in New York.

“Tremendous incompetence, the worst kind of training, disregard for people is really not enough,” he said. “You’re going to have to go beyond that because the police are different.”

But convictions or no, Professor O’Donnell said, the intense scrutiny brought on by a wave of activism after the shooting of Mr. Brown, followed by this year’s string of indictments, has caused “seismic changes” in policing.

“You can absolutely be sure there’s an impact on the everyday work the police do,” he said. “This is reminding the police that they should only be using deadly force as a last resort.

“It’s an imperfect way to fix the system, the criminalization of people,” he added. “In a way, we’re doing bottom-up reform instead of top-down reform. We’re finding egregious endings and working from there instead of proactively saying the police system is part of the criminal justice system and consequently is broken. The political sector hopes that the conversation will end there, at the bottom or close to the bottom.”

Mr. Balko argues two essential points. First, he says that “when cops commit crimes, they need to be punished. When they aren’t, it isn’t just that justice was denied to the victims of those crimes; it also suggests a system in which the very people we entrust to enforce the law aren’t bound by it.”

But the second point might be just as important, “We shouldn’t rely on indictments to fix the problem of unnecessary police shootings. And to some degree, indicting cops in these situations can be counterproductive. It can give the impression that this was a rogue cop who acted out, and who is now being held accountable. Hence, the system is working just fine.”

This is really the problem we face in the Tamir Rice situation. I think the officers there made mistakes in shooting Tamir Rice.

As New York Times columnist Charles Blow pointed out on CNN, the officers barely arrived on the scene when they opened fire, even though the scene at the park did not appear to be chaotic.

“If they had taken one moment to look and survey the scene, they would have seen that none of the kids were running away because none of them felt that they were in any danger,” Mr. Blow said. “Before you shoot somebody, you need to take a breath to say, ‘Let me assess the situation, let me not jump out with my hand on the trigger and shoot somebody at point-blank.’”

Mr. Balko notes, “I think Timothy Loehmann should have been indicted. But if he had, it wouldn’t change the fact that he never should have been in possession of a gun and a badge in the first place. Nor would it change the fact that if he was hired, there are probably a lot more Timothy Loehmanns on the force in Cleveland … and not just in Cleveland.”

As he argues, “It isn’t difficult to understand why we tend to equate justice with indictment after a particularly heartbreaking case like Tamir Rice. By the time the young boy is dead, the system has already failed. It’s too late to talk about training, recruitment, screening, deescalation and so on. There’s only one remaining way to seek justice, and that’s to hold the individual officer accountable.”

He adds, “It’s also true that these cases are helpful in illustrating just how difficult it can be to hold an officer accountable, even in clearly preventable deaths. As well as any other, Rice’s death and the lack of accountability for it shows how our legal and political systems have failed to produce laws and policies that reflect how we want police officers to deploy the use of force — how what’s legal and what we find acceptable have become two distinct concepts.”

Mr. Balko concludes, “But we should resist reducing our concept of justice to the presence or absence of an indictment. Real justice would not just hold Loehmann accountable; it would also address the policies, procedures and practices that allowed Tamir Rice to die. Real justice means changing those policies so that his death would have been prevented.”

For me, the Tamir Rice case is a good one to point out what went wrong. First, I’m still not convinced Loehmann should have been indicted – at least not on murder. I don’t see malice here. I see poor judgment by the cops. You may get to manslaughter through gross negligence, but certainly not murder.

But this is a clear case of a comedy of errors that ended up leading to tragedy.

The New York Times in an editorial wrote that Tamir Rice would still be alive “had he been a white 12-year-old playing with a toy gun in just about any middle-class neighborhood in the country.”

While I completely agree with that view, I also agree with many that this cannot be seen merely as a racial issue, but a systemic department issue from the top to the bottom.

First, you have the “miscommunications” that began when a 911 caller said a male who was “probably a juvenile” was waving a “probably fake” gun at people in a park – a message which was never relayed to the officers.

Second, the officers made the mistake of not surveying the scene when they arrived. Instead, they jumped out within seconds of arriving on the scene. This is the point Charles Blow makes, when the officers could have observed that no one was fleeing in panic or fear when the officers arrived.

As the Times puts it, this “was more than just an administrative misstep.”

Third, compounding the issue is that we have to question the judgment of the officer involved. This is an officer who failed numerous exams, had been rejected for a deputy sheriff position he had applied for, and resigned the Independence Police Department in November 2012 following a poor performance review. He had worked there for five months.

This is the officer who was thrust into a life or death decision and took a young life. As the Times put it, “[T]he department failed to even review Officer Loehmann’s work history before giving him the power of life and death over the citizens of Cleveland. Had the department done so, it would have found that Officer Loehmann had quit a suburban police department where he had showed a ‘dangerous loss of composure’ during firearms training and was found to be emotionally unfit for the stress of the job.”

Finally, you have a police department with clear failures here, from the communication from dispatch to the hiring of Officer Loehmann in the first place, to the department having “a well-documented reputation for wanton violence and for shooting at people who posed no threat to the police or others. In a particularly striking event, documented by the Justice Department last year, officers mistook the sound of a car backfiring for a gunshot. They chased down and fired at the vehicle 137 times, killing two occupants who turned out to be unarmed.”

The Times writes, “In May, the Police Department entered an agreement with the Justice Department, enforceable by the courts, under which it is to adopt sweeping reforms.”

Everything went wrong in this case and so, while we can argue whether or not the officer deserves criminal charges, I ultimately agree with Radley Balko that the problem does not begin or end with the actions of one officer here, it is systemic and if the problem is not dealt with at the systemic level, we are simply chasing wildfires.

Cleveland is only the most recent example – we could perhaps be writing the same review of other departments as well.

—David M. Greenwald reporting

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