SYSTEMATIC FAILURE

12.29.15 12:55 AM ET

Tamir Rice Shooting Was a Tragedy, Not a Crime

In a country plagued by gun violence, a cop can’t be held criminally liable for mistaking an authentic-looking toy for a gun—but that still doesn’t let the Cleveland PD off the hook.

The problem is not in the law, but in ourselves.

The law in Ohio and every other state holds that police officers are authorized to use deadly force if they reasonably believe they or other people are in danger of serious physical injury.

And the grand jury in Cleveland has found that rookie Cleveland Police Officer Tim Loehmann reasonably believed that he was in imminent danger when he shot and killed 12-year-old Tamir Rice on Nov. 22, 2014.

One remaining and altogether damning question is how on earth the Cleveland Police Department reasonably believed that Loehmann should have been a cop in the first place.

He had previously been declared unfit by the police department in Independence, Ohio. A senior supervisor there wrote that Loehmann “could not follow simple directions, could not communicate clear thoughts nor recollections, and his handgun performance was dismal.”

“I do not believe time, nor training, will be able to change or correct the deficiencies,” Independence Police Deputy Chief Jim Polak concluded.

Loehmann had also taken and failed the written exam for the Cuyahoga County Sheriff’s Department. He had applied unsuccessfully to police departments in the Ohio cities of Akron, Parma Heights, and Euclid.

But Cleveland hired Loehmann nonetheless. He was sitting in a patrol car with his training officer when the fateful report came over the radio.

That report was the result of a 911 call a citizen had made moments before.

Caller: “I’m sitting in the park… by the West Boulevard rapid transit station and there’s a guy and, like, a pistol, you know. It’s probably fake, but he’s, like, pointing it at everybody.”

Dispatcher: “And where are you at, sir?”

Caller: “I’m sitting in the park at West Cudell, West Boulevard by the West Boulevard rapid transit station.”

Dispatcher: “So, you’re at the rapid station. Are you at the rapid station?”

Caller: “No, I’m sitting across the street at the park.”

Dispatcher: “What’s the name of the park, Cudell?”

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Caller: “Cudell, yes. The guy keeps pulling it in and out of his pan… it’s probably fake, but you know what, he’s scaring…

Dispatcher: “What does he look like?”

Caller: “He has a camouflage hat on.”

Dispatcher: “Is he black or white?”

Caller: “He has a gray, gray coat with black sleeves and gray pants on.”

The caller seemed not even to hear this question regarding the distinction that begins most radioed descriptions. The dispatcher repeated the question.

Dispatcher: “Is he black or white?”

Caller: “I’m sorry?”

Dispatcher: “Is he black or white?”

Caller: “He’s black.”

The dispatcher had in the meantime muddled the start of the caller’s description.

Dispatcher: “He’s got a camo jacket and gray pants?

Caller: “No, he has a camo hat on. You know what that is?…”

Dispatcher: “Yeah.”

Caller: “…Desert Storm. And his jacket is gray and it’s got black sleeves on it. He’s sitting on the swing right now. He’s pulling it out of his pants and pointing it at people. He’s probably a juvenile, you know?”

The dispatcher offered no response at all to this detail. There was just silence.

Caller: “Hello?”

Dispatcher: “Do you have a gun?”

Caller: “No, I do not. I’m getting ready to leave, but you know what, he’s right nearby, you know, the youth center or whatever, and he’s pulling it in and out of his pants. I don’t know if it’s real or not.”

Dispatcher: “OK, we’ll send a car there, thank you.”

Caller: “Thank you.”

The dispatcher did indeed send a car, the one with Loehmann. She failed to mention that the suspect was possibly a juvenile or that the gun might be a toy.

Dispatcher: “In the park by the youth center, there’s a black male sitting on the swings. He’s wearing a camouflage hat, a gray jacket with black sleeves. He keeps pulling a gun out of his pants and pointing it at people.”

Back in 2012, 13 Cleveland police officers fired 137 shots at two unarmed black civilians after a high-speed chase in which there was a radio report of a gun and the backfiring of a car was mistaken for gunfire.

As has been reported in The Daily Beast, Ohio Attorney General Mike DeWine subsequently issued a report in which he said: “Each officer at the scene believed he or she was dealing with a driver who had fled law enforcement. They each also believed they were dealing with a passenger who was brandishing a gun—and that the gun had been fired at a police officer. It is now clear that those last two beliefs were likely not true.”

What he had to say about cops and police departments in general is worth repeating.

“Police officers have a very difficult job. They must make life and death decisions in a split second based on whatever information they have in that moment. But when you have an emergency, like what happened that night, the system has to be strong enough to override subjective decisions made by individuals who are under that extreme stress.”

He continued: “Policy, training, communications, and command have to be so strong and so ingrained to prevent subjective judgment from spiraling out of control. The system has to take over and put on the brakes.”

He concluded, “We are dealing with a systematic failure in the Cleveland Police Department. Command failed. Communications failed. The system failed.”

After two years of missed opportunities to address the underlying deficiencies, the Cleveland Police Department was on the way to another systematic failure, one in which a cop who never should have been hired responded to a report absent of vital details that almost certainly would have changed everything.

Had Loehmann and his training officer heard those details, they would have rolled up with the expectation that Tamir Rice might be what he in fact was: a juvenile with a toy gun.

Loehmann might have understood that the youngster who was walking toward the radio car and reaching into his waistband was most likely trying to show the cops that what he had was not a threat.

A more trainable and better-trained cop might not have fired. Cops make real gun collars by the thousands and thousands each year without firing a shot.

But there are also cops who hesitate a fatal instant to fire and pay for it with their lives.

The heartbeat a cop waits can be his or her last.

And in a country blighted by millions of illegal guns and plagued by unending gun violence, a cop cannot be held criminally liable for mistaking an authentic-looking toy for the real thing in a highly stressful instant.

That is what the grand jury concluded in the death of Tamir Rice.

The decision lets only Loehmann off the hook. The Cleveland Police Department stands all the more to blame for having done too little to address the systematic failure documented three years ago. The rest of us also share the blame for abetting a society where illegal guns are everywhere and realistic facsimiles are sold despite the documented danger of tragic misapprehensions.

There is also the question of race, the distinction the dispatcher made sure to mention while forgetting to relay the possibility that the subject was a child with what might be a toy.

Loehmann may very well have waited a needed instant if Rice had been white. A white youngster might have had the time to say, “It’s just a toy!” Loehmann almost certainly was more likely to fire because the youngster was black. But that is something difficult to establish as a basis for prosecution when the shooting itself was at least technically justified under the law.

If we are going to talk about race and what is reasonable, we should start with disparity in schools and jobs and housing.

The only measure by which life has significantly improved in many of our poorest neighborhoods is a reduction in violent crime. And for that we can thank good, smart cops who are fair and well trained, fielded by departments that understand the paramount importance of communication and constantly seek to learn from their failings.

The deficient cops can make us forget the day-to-day, often heroic efforts of the great ones in the instant it takes to fire a fatal shot.

The feds are now taking a look at the Rice case and at the Cleveland Police Department as a whole.

Meanwhile, the ultimate fault is in ourselves for permitting our country to become a place where a 12-year-old with a toy gun gets shot to death by a cop who is found to have been in reasonable fear for his life.