Applicable Law
The department examined the facts in this case under relevant federal
criminal statutes. The federal criminal statute applicable to these
facts is Title 18, U.S. Code, Section 242, Deprivation of Rights Under
Color of Law. In order to proceed with a prosecution under Section 242,
prosecutors must establish beyond a reasonable doubt that a law
enforcement officer acted willfully to deprive an individual of a
federally protected right. The right implicated in this matter is the
Fourth Amendment right to be free from an unreasonable seizure. This
right includes the right to be free from unreasonable physical force by
police. To prove that a police shooting violated the Fourth Amendment,
the government must prove beyond a reasonable doubt that the use of
force was objectively unreasonable based on all of the surrounding
circumstances. The law requires that the reasonableness of an officer’s
use of force on an arrestee be judged from the perspective of a
reasonable officer on the scene, rather than with added perspective of
hindsight. The law set forth by the Supreme Court requires that
allowances must be made for the fact that law enforcement officers are
often forced to make split-second judgments in circumstances that are
tense, uncertain, and rapidly evolving. Finally, caselaw establishes
that an officer is permitted to use deadly force where he reasonably
believes that the suspect posed an imminent threat of serious physical
harm, either to the officer or to others.
Additionally, to prove that a shooting violated section 242, the
government must prove beyond a reasonable doubt that the officers acted
willfully. This high legal standard – one of the highest standards of
intent imposed by law – requires proof that the officer acted with the
specific intent to do something the law forbids. It is not enough to
show that the officer made a mistake, acted negligently, acted by
accident or mistake, or even exercised bad judgment.
Although Tamir Rice’s death is tragic, the evidence does not meet
these substantial evidentiary requirements. In light of this, and for
the reasons explained below, career federal prosecutors with both the
Civil Rights Division and the U.S. Attorney’s Office concluded that
this matter is not a prosecutable violation of the federal statutes.
Factual Overview
This summary is based on, and consistent with, all facts known to the
government after a thorough examination, most of which are undisputed.
On Nov. 22, 2014, Tamir spent the majority of the day at the Cudell
Park Recreation Center (CPRC). Throughout the day, Tamir was frequently
seen playing with a toy black airsoft pistol with a removable magazine
that was visually virtually indistinguishable from a real .45 Colt
semi-automatic pistol. Tamir would periodically point the toy gun at
individuals at the CPRC and at the adjoining playground.
At approximately 3:11 p.m., an individual made a “911” call to report
that a “guy with a pistol” was pointing a gun at multiple people on the
playground at the CPRC. The caller gave a detailed description of the
individual, stated that he was “probably a juvenile,” and that the gun
was “probably fake,” but he also described the scene as very
frightening. On the date of the incident, Tamir was 12-years-old and
stood 5’7” and 195 lbs.
A 911 dispatcher subsequently broadcast the call as a “Code 1” (the
highest priority call) and Officers Garmback and Loehmann radioed that
they would respond. The information the dispatcher relayed to Officers
Garmback and Loehmann was “there’s a black male sitting on the swing.
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.” The
dispatcher did not relay that the individual might be a juvenile or that
the gun might be fake. Thus, the officers believed that they were
responding to a playground where a grown man was brandishing a real gun
at individuals, presumably including children.
Video from the CPRC captured the subsequent events. It is important
to note that the video footage is grainy, shot from a distance, does not
show detail or perspective, and portions of the incident are not
visible because of the location of the patrol car. Further, the time
lapse footage captures approximately two frames per second at a variable
rate, which is incapable of capturing continuous action.
Officers Garmback and Loehmann approached the CPRC’s playground area
with a swing set, Tamir’s reported location. Tamir was not in the swing
set area when the patrol car entered the park, but was sitting alone at
a picnic table under the gazebo located west of the swing set. He
matched the description of the suspect provided by the dispatcher. No
other people were in the immediate area.
It is not clear from the video evidence when Tamir became aware of
the patrol car driving toward the gazebo. Tamir stood up at the picnic
table approximately 10 seconds before the shooting and over the course
of the next three seconds, he walked around the end of the table in a
semi-circle, so that he was facing in the general direction of the
oncoming patrol car but not yet moving toward it. Meanwhile, the patrol
car continued to approach the gazebo.
Tamir began walking forward toward the passenger side of the
approaching patrol. Meanwhile, Officer Garmback applied the brakes in
an attempt to stop the patrol car, but due to the wet conditions on the
ground the car did not stop where he intended and instead slid forward
approximately 40 feet. As the patrol car came to a stop a short
distance from Tamir, who by that point had stopped moving forward and
was stationary, Officer Loehmann exited the still moving patrol car. At
that moment, it appears that Tamir made movements of some sort with
both his left and right arms. The positioning of the moving arms
suggests that Tamir’s hands were in the vicinity of his waist, but his
hands are not visible in the video. Officer Loehmann fired two shots
within less than two seconds of opening the passenger door, striking
Tamir once in the abdomen.
As soon as Officer Loehmann exited the patrol car, he fell to his
right and to the ground, toward the rear of the patrol car, resulting in
an ankle injury. When Officer Loehmann got to his feet, he quickly
moved to the rear driver’s side of the patrol car for cover while
continuing to aim his drawn weapon in Tamir’s direction. Meanwhile,
Officer Garmback exited the patrol car and began moving to the front of
the vehicle, where he stood for approximately 15 seconds with his gun
drawn and pointing in Tamir’s direction. Enhanced video stills show a
dark object (the toy gun) appear on the floor of the gazebo within a few
feet of Tamir approximately 7 seconds after the shooting, just as
Officer Garmback reached the front of the patrol car and just after
Tamir’s upper body moved to the ground (and out of view of the
surveillance camera). Officer Garmback stood at the front of the patrol
car for approximately 15 seconds with his gun drawn and pointed in the
direction of Tamir, then moved into the gazebo and kicked the toy gun
and magazine further away from Tamir.
After Officer Garmback kicked the toy gun and magazine into the
grass, he reported the shots fired and requested emergency medical
assistance.
Video Evidence
The CPRC has a number of surveillance cameras, and the incident is
captured on video. Unfortunately, as previously discussed, this video
is a time lapse video, has no audio, is grainy, shot from a significant
distance, does not show detail or perspective, and portions of the
incident are not visible because the incident occurred on the passenger
side of the patrol car, and the camera is shooting from the driver’s
side of the patrol car; thus, the patrol car blocks the camera’s view of
parts of the activity during the relevant time. Tamir’s hands are not
visible in the video during the relevant time.
The video generally shows that the patrol car came to a stop a short
distance from Tamir, and that Officer Loehmann exited the still moving
patrol car. At that moment, Tamir made movements of some sort with both
his left and right arms. The positioning of the moving arms suggests
that Tamir’s hands were in the vicinity of his waist, but his hands are
not visible in the video and it cannot be determined from the video what
he was doing. Officer Loehmann fired two shots within seconds of
opening the passenger door, striking Tamir once in the abdomen.
Officer Statements
In on-scene statements to three responding law enforcement officers,
starting approximately one minute after the shooting, Officer Loehmann
repeatedly and consistently stated that Tamir was reaching for his gun
just before Officer Loehmann shot. Officers Loehmann and Garmback gave
several additional statements to other responding officers in the
minutes and hours after the shooting. In those statements, both
officers repeatedly and consistently stated that Officer Loehmann gave
Tamir multiple commands to show his hands before shooting, and both
officers repeatedly and consistently said that they saw Tamir reaching
for his gun. Both officers submitted written statements concerning the
incident approximately a year later, and repeated these seminal points.
Officers Loehmann and Garmback are the only two witnesses in the near
vicinity of the shooting.
Civilian Witnesses
Only one civilian witness reported seeing any part of the fatal
encounter; an additional witness said that she heard shots and heard
commands after the shots. However, the eyewitness’s two statements are
inconsistent; the earwitness reported hearing three shots; both
witnesses were approximately 315 feet away; and neither of them stated
that they saw Tamir’s movements immediately preceding the shooting
Expert Witnesses
- Video Expert
An expert forensic video analyst analyzed the video evidence,
which consists of compressed time lapse footage. He identified numerous
technical variables that can result in the misinterpretation of the
images by an untrained observer of compressed video images. He noted
that the time lapse footage consists of a series of stills, with
approximately two stills captured per second. In analyzing the relevant
video footage in this case, the expert found that, throughout the two
camera recordings, the refresh rate in which the video captures a new
still image varies from approximately one image per second to up to
eight images per second.[1]
He further stated that there is no foundation to establish the precise
timing from image to image. As a result, the video in this system is
referred to as a ‘variable refresh rate recording.”
Thus, even when the video was enhanced to the still frames, there are
unknown time gaps of up to a full second between each frame. The video
and the corresponding still frames are incapable of capturing the
nuances of continuous action.
- Use of Force Experts
Seven experts reviewed this case and opined on whether Officer
Loehmann’s use of force was objectively reasonable or unreasonable: four
of whom were hired by the CCPO and agreed that the shooting was
objectively reasonable; three of whom were retained by the Rice family
and agreed that the shooting was objectively unreasonable. Because the
experts relied heavily on the poor-quality video of the incident and
reached different conclusions about what it showed, their conflicting
opinions added little to the case, other than to solidify the conclusion
that the video evidence is not dispositive and is insufficient to
establish beyond a reasonable doubt what Tamir was doing in seconds
before he was shot.
Analysis Regarding a Deprivation of Rights Under Color of Law
In order to establish a federal civil rights violation, the
government would have to prove that Officer Loehmann’s actions were
unreasonable under the circumstances, and that his actions were
willful. As noted above, caselaw establishes that an officer is
permitted to use deadly force where he reasonably believes that the
suspect posed an imminent threat of serious physical harm, either to the
officer or to others. Here, in light of the officers’ explanations
that Officer Loehmann shot because it appeared to him that Tamir was
reaching for his gun, the government would necessarily have to prove
beyond a reasonable doubt that 1) Tamir was not reaching for his gun;
and 2) that Officer Loehmann did not perceive that Tamir was reaching
for his gun, despite his consistent statements to the contrary. The
evidence is insufficient for the government to prove this.
To fully assess whether this shooting constituted an unreasonable use
of force, career prosecutors closely examined, among other things, the
evidence concerning the movement of Tamir’s arms and hands just prior to
the shots. As mentioned, the video footage is of extremely poor
quality and has gaps in time of up to one second. The footage does not
establish that Tamir was drawing a weapon from his waistband; however,
the footage also does not establish that Tamir was not reaching for a gun when Officers Loehmann and Garmback state that he was doing so.
The evidence in this case fails to definitively establish what
happened at the time of the shooting. Both officers have consistently
and repeatedly maintained that they saw Tamir reach for his gun. The
toy gun was found on the ground near where Tamir fell, suggesting that
it was on his person and that he handled it after standing up beside the
picnic table. The video evidence is simply not definitive on Tamir’s
movements at the relevant time. Multiple experts examined the grainy,
non-continuous, indistinct video in which the patrol car blocks part of
the view at the relevant time. Those experts differed in their opinion
of what Tamir was “likely” doing with his arms and hands, but all agreed
that his arms were moving and that his hands, though not visible, would
have been in the general area of his waist. The experts’ opinions were
of little assistance in assessing criminal guilt, because their
analysis amounted to a 20/20 hindsight review of still frames from a
non-continuous video that could not, and does not, capture all that
happened in the relevant time period of approximately two seconds, but
nevertheless portrays Tamir’s hands in the vicinity of his waist just
prior to the shooting. Further, the civilian witnesses shed little
light on Tamir’s actions just before he was shot.
Based on this evidence and the high burdens of the applicable federal
laws, career prosecutors have concluded that there is insufficient
evidence to prove beyond a reasonable doubt that Tamir did not reach for
his toy gun; thus, there is insufficient evidence to establish that
Officer Loehmann acted unreasonably under the circumstances.
As noted above, in analyzing a potential charge under 18 U.S.C. §
242, federal investigators must also consider whether the evidence
proves the statutory element of willfulness — meaning, that, in shooting
Tamir, Officer Loehmann knew what he was doing was wrong and chose to
do it anyway. As noted above, an accident, a mistake, an officer’s
misperception, or even an officer’s poor judgment or negligence does not
constitute willful conduct that can be prosecuted under this statute.
Even if the government were to accept entirely the conclusions of the
expert who opined that Tamir had his hands in his jacket pockets as he
approached the patrol car, prosecutors would still be unable to disprove
Officer Loehmann’s consistent statements regarding his own perceptions
of Tamir’s movements. Within a minute of the shooting and with no
opportunity to reflect, view video, or discuss the matter with others,
Officer Loehmann said that he fired in self-defense and had no choice.
He has given multiple additional statements, in which he has
consistently maintained that he shot because he believed that Tamir was
drawing a weapon; there is insufficient evidence to refute that central
point.
Similarly, Officer Garmback has maintained since moments after the
shooting that he heard Officer Loehmann give repeated commands to Tamir
to show his hands, and that he saw Tamir reaching for a weapon in his
waistband. Both officers sought cover from the patrol car, held Tamir
at gunpoint for approximately 15 seconds, and generally responded to the
incident in a manner consistent with their stated belief that Tamir was
drawing a gun.
For many of the same reasons the evidence is insufficient to prove
beyond a reasonable doubt that the shooting violated the Fourth
Amendment, the evidence is also insufficient to establish beyond a
reasonable doubt that the officers acted willfully. Even if federal
prosecutors could definitively prove that Tamir did not in fact reach
toward his waistband to draw his toy gun, the government could not
establish that Officer Loehmann did not perceive that Tamir did so.
Analysis Regarding Obstruction of Justice
Career federal prosecutors also reviewed the evidence to determine
whether there was sufficient evidence to prove that Officers Loehmann
and/or Garmback obstructed justice in their statements to law
enforcement officers. These career prosecutors concluded that it did
not.
In order to prove obstruction, the government would have to prove the
officers knowingly made false statements, and that they did so with the
intent to obstruct a federal investigation. As previously noted, the
officers each gave multiple statements to law enforcement officers on
the day of the incident, starting within a minute or so of the incident,
without time to reflect, discuss, or view video. They each provided a
written statement approximately a year later. Some of their statements
are more detailed than others, and with slightly different verbiage, but
all of which were generally consistent, particularly on the seminal
facts. As the experienced career prosecutors who reviewed this matter
know, when witnesses give multiple statements, there are almost always
inconsistencies due to the fallibility of the human memory.
Because there is insufficient evidence to establish that the
statements by Officers Loehmann and Garmback are in fact untrue, there
is also insufficient evidence to establish that they knew them to be untrue or that they made them with the intent to obstruct the investigation.
Conclusion
In sum, after extensive examination of the facts in this tragic
event, career Justice Department prosecutors have concluded that the
evidence is insufficient to prove beyond a reasonable doubt that Officer
Loehmann willfully violated Tamir Rice’s constitutional rights, or that
Officers Loehmann or Garmback obstructed justice. In this case, the
U.S. Attorney’s Office for the Northern District of Ohio, the Justice
Department’s Civil Rights Division, and the FBI each devoted significant
time and resources to examine the circumstances surrounding Tamir
Rice’s death and to completing a thorough analysis of the evidence
gathered. The Justice Department remains committed to investigating
allegations of excessive force by law enforcement officers and will
continue to devote the resources required to ensure that all serious
allegations of civil rights violations are thoroughly examined. The
department aggressively prosecutes criminal civil rights violations
whenever there is sufficient evidence to do so.
[1] For comparison, most modern video captures approximately 60 frames per second.
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