Almost a year has passed since the death of 12-year-old Tamir Rice, who was playing with a toy gun in a public recreation center in Cleveland when he was shot dead by a rookie police officer. Whether or not the police officer, Tim Loehmann, will face criminal charges for shooting Rice will be decided by a grand jury once the office of Cuyahoga County prosecutor, Tim McGinty, completes an investigation into the incident. When that will happen is still unknown, but this past weekend, McGinty took the significant step of releasing a pair of reports by outside law enforcement experts arguing that Loehmann was legally justified in using lethal force.
The reports were written at McGinty’s behest by retired FBI agent Kimberly Crawford and Colorado prosecutor S. Lamar Sims. Both set out to evaluate whether Loehmann was justified in using lethal force by determining whether an “objectively reasonable” police officer would have used such force under the same circumstances, the test established by two Supreme Court rulings from the 1980s. In the Tamir Rice case, the reports conclude, Loehmann believed his suspect was brandishing a real gun, and on that basis decided that he presented a threat of death or serious bodily harm that could only be neutralized by shooting him. It was “reasonable” to make this calculation, according to Crawford and Sims, and therefore Loehmann should not face charges.
The argument on display in the two reports, which are based in part on video footage of Loehmann and his partner driving up to Rice and, within seconds, shooting him at close range, ought to alarm anyone who believes that police officers should not be allowed to kill whomever they want, whenever they want, as long as they’re under the impression that a suspect is armed. If Loehmann’s use of lethal force against Rice is considered “reasonable,” it’s difficult to imagine a scenario in which an officer’s decision to approach an ostensibly armed suspect and shoot him would ever be deemed unreasonable.
The cases that established the “objective reasonableness” of an officer’s decision-making as the most important factor in evaluating its legality are Tennessee v. Garner (1985) and Graham v. Connor (1989). The cases considered the use of force by police in the context of the Fourth Amendment, which protects citizens against “unreasonable searches and seizures.”
In the Garner case, which centered on a police officer in Memphis, Tennessee, who shot an eighth-grader he knew to be unarmed in order to stop him from fleeing, the court held that using lethal force against someone who is not believed to pose a threat of serious physical harm constitutes an unreasonable seizure, and thus violates the Fourth Amendment. But it carved out an exception to that rule: If the suspect in question is a threat to the officer or others, lethal force is allowable. “If the suspect threatens the officer with a weapon, or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given,” the court ruled. As a result, following Garner, lower courts interpreted the ruling to mean that unless a suspect is believed to be a dangerous felon, using deadly force against someone who is fleeing the police is not justified.
Four years after Garner, in a case involving police officers in Charlotte, North Carolina, who severely injured a diabetic man they had handcuffed on suspicion of committing an unspecified crime, the court took up the task of further defining how the reasonableness of deadly force should be evaluated. Chief Justice William Rehnquist wrote in his majority opinion that the use of force must be judged with reference to:
the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
Significantly, Rehnquist added that the judgment of an officer’s actions must be undertaken “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and that “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”
Taken together, these two Supreme Court decisions added up to a seemingly straightforward directive for prosecutors, judges, and juries: An officer’s use of deadly force is constitutionally justified as long as it is possible to imagine an objectively reasonable officer, in the same set of circumstances, believing that the suspect posed a threat of death or serious injury to himself or anyone else.
But as we have seen time and time again in the decades since Graham, exactly whom we’re supposed to be imagining when we conjure this objectively reasonable police officer, and what exactly is meant by “circumstances,” turns out to be extremely subjective. When asked whether it was reasonable for Officer Loehmann to use lethal force in his confrontation with Tamir Rice, the two law enforcement experts tapped by the Cuyahoga prosecutor’s office to weigh in on the case imagined an officer standing in close proximity to a suspect he believed to be armed. They zeroed in on the moment when Loehmann decided to fire his weapon—a moment when Loehmann had already exited his vehicle and, to the best of his knowledge, was facing an armed individual who seemed to be reaching for his gun.
But that is not the only way to evaluate the situation. Another way would be to consider the incident in its totality, starting with the moment when the officers responded to a radio call from dispatch and headed for the park where their suspect was said to be threatening people. The officers might have approached their suspect with caution, taking cover and instructing Rice to put down any weapon he might have had in his possession. Instead, they drove right up to him and got out of their car. Was that reasonable or unreasonable? And does that matter, from a constitutional perspective?
To find out, I called Nancy Marcus, a law professor at Indiana Tech who has an article on Garner, Graham, and police use of force in a forthcoming issue of the Howard Law Journal. In Marcus’ view, the officers in the Rice case were unilaterally responsible for creating the situation that supposedly left them no choice but to kill Rice. It’s essential to take that into account when evaluating the reasonableness of Loehmann’s decision to shoot, she said, because if he and his partner hadn’t raced up to Rice in the moments before shooting him, there would have been no argument that Rice presented any kind of threat.
“They pulled up within feet of him, and once they were within that kind of distance, they used that distance as a proxy for danger,” Marcus said. “They’re saying that because he was right there, they had to shoot him.”
She went on: “Even presuming they thought it was a real gun, they could have seen clearly—as we did in the video—that he was by himself, and not pointing it at anyone. So, he posed no threat. … They created the threat.”
In the report that Crawford submitted to the Cuyahoga County prosecutor’s office, the retired FBI agent anticipated Marcus’ point. “It could be argued that the officers enhanced [the] risk by entering the park and stopping their vehicle so close to a potentially armed subject,” she wrote. “However, this type of ‘armchair quarterbacking’ has no place in determining the reasonableness of an officer’s use of force. … Whether the officers’ actions were courageous or foolhardy is not relevant to a constitutional review of the subsequent use of force.”
The Colorado prosecutor who wrote the other report, S. Lamar Sims, made a similar point and argued that his reading of the situation has case law on its side. Sims cited a recent Supreme Court opinion, City and County of San Francisco v. Sheehan, which quoted from a 2002 decision by the 9th U.S. Circuit Court of Appeals ruling that “events leading up to a shooting” do not “permit a plaintiff to establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.” As a result, Sims concluded, suggesting that Loehmann’s partner “should have stopped the car at another location is to engage in exactly the kind of ‘Monday morning quarterbacking’ the case law exhorts us to avoid.”
But why is it permitted to examine the moment when Loehmann fired his weapon and “Monday morning quarterbacking” to examine the moments leading up to that decision? Marcus pointed out that Ohio is an open carry state where having a weapon does not constitute a crime. Why shouldn’t the officers’ aggressive tactical response to the radio call be considered in weighing the legality of the shooting? Jennifer Laurin, a visiting professor at Columbia Law School, also told me that it’s not at all clear that Sheehan ruled out the consideration of context in use of force cases: “The most that Sheehan can be read as saying is that it was not clearly established that bad police tactics before the use of force were relevant to the reasonableness analysis,” she wrote in an email.
There is much to debate in the legal reasoning set forth in the two reports submitted to the Cuyahoga prosecutor, but one thing that seems clear is that the Supreme Court has made it easy to defend the legality of an officer’s decision to use deadly force. Could the Supreme Court have a role to play in making it harder?
Rachel Harmon, a professor at the University of Virginia School of Law, believes that it does. In a widely cited 2008 law review article called “When Is Police Violence Justified?” Harmon argues that the court has not done enough to define “reasonableness”—and that its doctrine on the use of force by police fails to “answer adequately the most basic questions about police uses of force: when a police officer may use force against a citizen, how much force he may use, and what kinds of force are permissible.”
In her article, Harmon calls on the Supreme Court to refine the reasonableness standard using principles from self-defense law, which “permits individuals to use force to serve particular well-defined interests, such as to protect themselves or others, under specific, carefully delineated conditions, i.e., when that force is necessary to protect against an imminent threat to one of those interests and is proportional to that threat.”
Harmon believes that the reasonableness of a police officer’s decision to use deadly force should be held to a similar standard. “My proposal would require courts to consider whether force used by an officer was necessary, whether it was a response to an imminent threat to the officer or others or the success of an arrest, whether the harm the force was likely to cause is reasonable in proportion to the harm that is threatened,” Harmon wrote to me in an email.
She added that, under her proposal, courts would be permitted to consider “whether the force was unnecessary” before “unreasonable conduct by the officer made it so”—meaning that the larger context, such as the decision by Loehmann and his partner to drive right up to Tamir Rice, could and should be scrutinized.
In order for the Supreme Court to revisit the reasonableness standard for the use of force by police, it would have to hear a case that turns on that standard. The likelihood of that happening is significantly undercut by the fact that suits stemming from use of force incidents tend to end in settlements between victims’ families and cities: Freddie Gray’s family was recently awarded $6.4 million by the city of Baltimore, Eric Garner’s family was awarded $5.9 million by New York City, Jonathan Ferrell’s family was awarded $2.25 million by the city of Charlotte.
Tamir Rice’s family filed a suit against Cleveland, along with Loehmann and his partner, in December; it has not been settled. Is it possible, then, that Rice’s death will open the door for the Supreme Court to revisit the reasonableness standard for police use of force? Theoretically, yes. Reached for comment, Rice family attorney Subodh Chandra said, “We have a good case under the existing standard, and we have good facts that fit the standard. The officers’ behavior could not have been objectively reasonable given all of the inputs. You have to look at the context. You have to look at the entire situation.”