How to Make a Police Shooting Disappear
BY: SEAN FLYNN –July 14, 2016
Maybe you heard about the Tamir Rice case and wondered: How does a 12-year-old boy with a toy gun on a playground get shot to death on-camera by the police without anyone getting charged? Put another way: How does a small group of government officials make this case disappear without a trial? Here’s how.
The prosecutor pacing in front of the witness was holding a toy gun that looked like a real gun, which was the same kind of toy the boy had been playing with the day he got shot. A rookie Cleveland police officer had fired twice at close range, and one bullet hit the boy just left of his belly button, carved downward through his intestines and a major vein, and embedded in his pelvis an inch to the right of center.
The witness, a retired cop named Roger Clark, thought the gun was a curious prop for a grand jury. The boy was dead, and had been for more than a year. He’d been accused of no crime, ever. Why the toy? There is no need for theatrics in grand-jury proceedings. They are entirely one-sided forums. Prosecutors decide what witnesses to call and what evidence to present. They instruct the grand jurors, ordinary citizens drawn from the same pool as trial jurors, on the law. There is no defense present because the most a grand jury can do is issue an indictment, which means only that there’s enough evidence of a crime that a judge or jury should sort it out. It is a very low threshold, and it is reached as a matter of plodding routine. It also is done entirely in secret. Who was a prop supposed to impress?
Clark wasn’t even there to testify about the boy. The grand jury was investigating two Cleveland police officers—the rookie who ﬁred and his veteran partner—to determine if there was probable cause to believe that they’d acted unreasonably and unlawfully when they drove to within ten feet of the boy and, even before stopping, shot him. Clark is an expert in that general area, police shootings. He spent more than 27 years with the Los Angeles County Sheriff’s Department, where, among other things, he taught officers the proper use of force, investigated officers who used deadly force, and helped write tactical deployment guidelines designed to minimize the use of force. Since he retired in 1993, he has studied hundreds of fatal use-of-force incidents, and he has testiﬁed many dozens of times in state and federal courts.
Clark had studied all of the available evidence in this case—video, witness statements, forensic reconstructions—and he had prepared a report detailing his ﬁndings. He did not believe the officers acted reasonably, and he did not believe the shooting was justiﬁed. When he was called to testify, on December 7, he expected he would summarize those opinions, answer a few clarifying questions, then be dismissed with a polite thank-you for his time and effort.
“Instead,” he told me, “it was immediately very hostile.”
There were two prosecutors in the room. The ﬁrst sat with the grand jurors at a big U-shaped conference table, as if he were one of them, not an officer of the court presenting evidence. Clark thought he smirked a lot. The other, the one pacing with the toy gun, he smirked, too. “The facial expressions, the body language…disdain,” Clark said. “Yeah, that’s a good word: disdain.”
The prosecutors reminded Clark, and the grand jurors, that the officers had responded to a 911 call about a black male with a gun in a park—an “active shooter,” they said, though no shots had been ﬁred, there was no one nearby to be shot when police arrived, and the black male turned out to be a 12-year-old boy alone in a gazebo. Active shooter. The phrase was used repeatedly, Clark told me. “They had to be brave,” the pacing prosecutor, Matthew Meyer, said. “They were brave that day.” Or maybe they were reckless, which was one of Clark’s conclusions. Maybe if they hadn’t ridden up in a frenzy, the boy wouldn’t be dead. There’s case law about that, Clark started to explain, opinions that can help deﬁne whether force was used appropriately.
Meyer started pacing again.
A California Supreme Court case, Clark continued, explicitly held that a shooting should be considered in a context broader than the instant the trigger was pulled. That did not suggest a cop should be second-guessed back to his morning coffee.
But if an officer, through tactical incompetence or outright belligerence, created the circumstance that put him in fear for his life… The prosecution argued that video-surveillance footage showed Rice reaching for his toy gun before he was shot.
Courtesy of the Cleveland Police Department
Meyer stopped, pivoted, swung his arm up, aimed his fake gun at Clark’s face. “Does he have to point it at you like this before you shoot?” Clark remembered Meyer asking. “That would scare you, right?” Clark looked at him for a moment. “No,” he said. He’d had guns pointed at him before. But it would scare most people. Probably scare the good citizens sitting on a grand jury in a city with a miserably high crime rate.
The prop was for them. But it was only theater. Because the boy never pointed a gun at a cop. He wasn’t given the chance to even put his hands up.
The Boy Was Named Tamir Rice.
If you didn’t know him, or don’t know his city, or if you simply are too exhausted to sift one story from all the others, you might vaguely remember him as the kid who got killed in Cleveland during that period, from roughly the summer of 2014 through the spring of 2015, when black people getting killed by police received an unusual amount of national attention. Tamir was shot on November 22, 2014, which was after John Crawford in Dayton and Michael Brown in Ferguson but before Rumain Brisbon in Phoenix and Walter Scott in South Carolina.
The grand jury in late December declined to indict either officer involved in killing Tamir, and the city of Cleveland denied anyone did anything wrong when, in April 2016, it agreed to pay his estate, his mother, Samaria, and his sister Tajai $6 million. The news reports and most of the columns and commentaries that followed those events invariably summarized his death as an awful mistake: Tamir had been playing with a toy gun that the police mistook for a real one when he reached into his waistband, which is why the rookie shot him within seconds of arriving in Cudell park. A “perfect storm of human error, mistakes, and miscommunications by all involved,” Cuyahoga County prosecutor Timothy J. McGinty said. The grand jury had been thorough and diligent, he said. The grand jury had heard all the facts and had reached a reasoned, if difficult, decision. That he agreed with the decision, and released a 74-page report explaining why, was secondary; a panel of fair-minded citizens, he stressed, had settled the matter.
There was a dreary, routine trajectory from that point. The city would pay to settle the civil suit, of course. Then months would pass and memories would get foggy—Tamir? was that the kid in Cleveland?—until all that was left was a mushy insistence that no one was really to blame for a dead kid. The activists could make all the noise they wanted, but reasonable people would have to agree to disagree. “If you don’t trust the grand jury,” McGinty said, quoting a local judge, “you don’t trust your neighbors.”
That is disingenuous. Grand jurors, almost without exception, follow where prosecutors lead them. And when they don’t return indictments in high-proﬁle cases, it’s almost always because the prosecutor does not want them to. That he makes that preference known, whether explicitly or implicitly, in the secret conﬁnes of the grand-jury room makes it no less deliberate.
Since he took office, in January 2013, McGinty has presented, or has promised to present, evidence related to every police killing of a civilian in Cuyahoga County—20 in three years—to a grand jury. The reason, he repeated after the December non-indictment, was to increase transparency, to “end the traditional system where the prosecutor privately reviewed police reports, then decided if an officer should be charged. That secrecy—which appeared arbitrary without a public investigative report—undermined community conﬁdence.”
But there is nothing in that traditional system—which remains the system for everyone except, apparently, police officers—that requires reviews to be done privately. McGinty can distribute public records; he can consult outside experts and release their analyses; he can even publish a 74-page report explaining why he decided a shooting was justiﬁed or not. That is, after all, the job he was elected to do.
Grand-jury proceedings, on the other hand, are by law secret. (McGinty’s office, in fact, stressed that point: Clark and other witnesses “can characterize their experience before the Grand Jury in any way they want, but prosecutors cannot reveal what was said or done in the room,” a spokesman e-mailed me. “So by deﬁnition, you’re only getting one side.”) What evidence is presented and how is not a matter of public record. Nor is whether a witness is treated with deference or, to borrow phrasing from that 74-page report, as one of the “purported experts” hired by lawyers “representing the Rice family in a federal civil lawsuit.” Only the beginning and the end of the process—the apparently reckless shooting of a black child and the grand jury’s decision that that killing was not unreasonable—are truly public. Everything in between is either cloaked in legal secrecy or dribbled out in carefully choreographed press releases. And when it’s over, when the details are sufficiently blurred and the story is effectively muddled, the prosecutor can take refuge behind those anonymous grand jurors when he declares the whole episode to be nothing more than a sad accident.
That’s how a dead child, how Tamir Rice, eventually becomes a half-remembered name on a long and miserable list of other half-remembered names. When strangers think of him, if they think of him, it will be with a weary sigh as they try to sort out which one he was, and where. Maybe they will recall something about a toy gun and the cops thinking it was real and, well, mistakes happen—because isn’t that what the grand jury’s decision effectively meant?
Yes, it is. And this is how they were led to that conclusion.
The park where Tamir got shot is a couple hundred yards from where he lived, in a row house across Madison Avenue on the west side of Cleveland. Samaria had moved to that neighborhood the previous March partly because Cudell park was so close. There was a rec center on the north side, where Tamir and his sister had been going for years, and there was a school on the south side, where Tamir was in the sixth grade. Samaria would check the park every now and again, make sure no dope boys were loitering about. But between that and the school and the rec center, she ﬁgured her children were safe.
Tamir was at Cudell by mid-morning on the Saturday he got shot. Usually he’d play basketball or Ping-Pong or games on an old phone that could connect to the rec-center Wi-Fi. But his friend had an Airsoft pellet gun his dad bought him at Walmart, a replica of a Colt 1911 semi-automatic. It was supposed to have an orange tip on the barrel, except it stopped working once and Tamir’s friend took it apart and ﬁxed it but couldn’t get the orange part back on. They traded, Tamir and his friend, a cell phone for the pellet gun, but only for the day: Tamir knew he’d catch hell if his mom found out he was playing with a toy gun.
He shot BBs at a few car tires in the parking lot, showed his friend how they didn’t go straight. He knew enough to put the gun in his backpack when he went inside the rec center, though. He was there almost every day, never caused a problem and wasn’t going to start.
Samaria gave Tamir and his sister turkey sandwiches and fruit when they came home for lunch, and a few dollars to get chips and juice from the corner store. Then they went back to Cudell. Tamir was inside the rec center for a while, then outside, back and forth for more than an hour. On the sidewalk out front, he played with the pellet gun, drawing and pointing at pretend people and, sometimes, real people. No one seemed alarmed, though. Everyone knew Tamir, knew he was a kid, knew he was playing. Even if they didn’t, Tamir didn’t appear menacing: A man named Joe who was 81 and came to practice with an old-timers’ basketball league saw Tamir pointing his gun at the ground only a few feet away and just ignored him.
A little after three o’clock, a guy with a tall-boy showed up in the park to wait for a 3:30 bus downtown. He didn’t know Tamir. He saw a baby-faced guy, ﬁve feet seven, almost 200 pounds—Tamir was a big kid—pulling a gun in and out of his pants. Acting all gangsta, he thought. The man called 911 at 3:22. He was a little slurry, but not frantic. He politely asked the operator how she was, then told her he was sitting in a park. “There’s a guy in here with a pistol,” he said, “and, you know, it’s probably fake, but he’s, like, pointing it at everybody.” The operator asked him where he was, exactly, and the caller repeated what he said the ﬁrst time: “The guy keeps pulling it in and out of his pants—it’s probably fake, but you know what? He’s scaring the shit out of me.” He described Tamir’s clothes and then reported the guy with the pistol had moved to one of the swings on the playground. “Probably a juvenile, you know?” Finally: “He’s right nearby the, you know, the youth center or whatever, and he keeps pulling it in and out of his pants. I don’t know if it’s real or not.”
The 911 operator’s notes were passed to a dispatcher, who requested a squad car respond to Cudell park. She said there was a black male sitting on the swings, and she described his clothing. “So he keeps pulling a gun out of his pants and pointing it at people,” she said.
Another dispatcher cut in. “How many calls are we getting for that?”
“Nah, just the one so far.”
She left out the words probably fake and probably a juvenile, and categorized it as a Code 1 call, the highest priority.