Comparison of the Dontrell Stephens case and Tamir Rice Cases

Comparison of the Dontrell Stephens case and Tamir Rice Cases and the Supreme Courts Guidance Regarding the Deputy and Officer’s Actions and Use of Deadly Force

By Dr. Peter A. Barone

Dontrell Stephens was bicycling across Haverhill Road in Palm Beach County Florida, and he was talking to a friend on a cellphone while operating his bicycle on a public roadway. A truck slowed as he rode against traffic. Palm Beach County Sheriff’s deputy Adams Lin was watching schoolchildren waiting for a bus. He followed Stephens to give him a traffic ticket for not bicycling properly which is a legal and legitimate traffic violation that can be ticketed in the State of Florida. However, he also would acknowledge he was suspicious of Stephens, whom he had not seen in the neighborhood before that morning.  He intended to stop him, ask for identification and find out where he had come from and where he was going. He considered frisking him. But Lin, who is of Asian descent, denied racially profiling Stephens, who is black, and wore his hair in long dreadlocks.

When Stephens turned down a side road, Lin followed, stepping on the gas, turning on the siren and then the lights following all the proper departmental and legal procedures when affecting a traffic stop on a public roadway.  When Stephens then biked between a mailbox and a fence toward his friend’s house, a shortcut Lin could not easily follow in his patrol car, the deputy considered that further evidence of Stephens’ intent to flee. The dash-cam video shows that Stephens looks back, then continues about 20 more feet to his friend’s house, where he gets off the bike. Lin is now even more convinced that Stephens is about to take off on foot, not because he got off the bike, but because he put both feet over the same side to do so. The manner he stopped and got off his bicycle was consistent with someone who had run from me in the past, which is known as a “rolling run” where someone jumped off with both feet on one side and just kept going. Lin exits his patrol vehicle and runs from his car and he is out of range of the dash-cam. Stephens walks toward the deputy, then also disappears from the dash-cam video.

The Deputy opened fire because Stephens was reaching in his back waistband with his right hand and possibly for a gun; however, it turned out to be a cell phone. The major issue here was that Stephens made the dangerous decision to reach with his left hand and point the cell phone at Deputy Lin like it was a gun precipitating the response of Deputy Lin firing his weapon to stop a validly perceived threat. Think for a moment what the outcome would have been if Stephens would have not acted in this manner and never reached, pulled out and pointed the cell phone at Deputy Lin that day. An internal investigation and the State Attorney’s Office have both cleared Lin of the September 2013 use of force.

It was ruled as a good shoot and the Supreme Court has ruled the following: Courts have ruled that reaching for a gun, or even what appears to be a gun, (like a cell phone as in this particular case), after being commanded to stop moving can give an officer a valid reason to use lethal force.

The United States Supreme Court has clearly presented this information in both the case of Tennessee v. Garner (1985) and Graham v Connor (1989).

In the Tamir Rice case he was told numerous times to stop and do not move and he then makes the furtive movement and points the gun, with the orange tip removed, and the officers see gun and use deadly force against what they believe is also deadly force. Totally justifiable.

The same case results apply here and it is tragic that it was a child; however, a child does have the ability to exert enough trigger pull to fire a weapon and kill someone. How many cases appear in the papers and online about a child finding a weapon in a home and firing it killing a sibling and they were able to pull the trigger with no issues.

                                                         References

Graham v. Connor (1989).

Tennessee v. Garner (1985).

Admissiblity of Evidence and Methods of Assessment

                                              Admissibility of Evidence

Methods of Assessment for Admissibility of Evidence 

After evidence has been located, collected, impounded, and presented to the prosecutor for use in proving the elements of the crimes being charged in a criminal case the prosecutor must assess it and decide if it is usable in any criminal hearings and in a criminal trial. Once this has been accomplished the prosecutor will follow the required procedures in the rules of evidence to have the items of evidence admitted into evidence in either one of the aforementioned criminal proceedings. It is at this time that all of the evidence being presented to be admitted must be put through an assessment process by the judge wherein the judge will assess the evidence to determine its admissibility into a hearing or trial as evidence. The judge is the only one that can admit evidence into a hearing or a trial as evidence. Understanding the manner in which evidence is determined by the judge to be relevant and admissible or non-relevant and inadmissible is critical to the successful performance of law enforcement officials at all levels.

Relevant Evidence 

It is important to fully understand that all evidence has the potential to be admissible; however, it must meet standards, and one of them it that is must have relevance to the case and the issue at hand. When discussing relevance there must be an understanding by law enforcement officers that for an item to admitted into evidence, any legal proceeding or in a trial it must be what is known in law as Relevant Evidence which means that it must be evidence that has any tendency to prove or disprove a pertinent fact relating to the issue at hand. All of the evidence which is admitted into evidence in a legal proceeding must be related to the issues of the case being litigated and if evidence is not related or connected to the case it should not be admitted. For evidence to be admitted it only need make the existence of a fact of consequence more probable or less probable than it would be without the item being introduced as evidence.

One of the most important benchmark of admissibility is relevance of the evidence to the matter being prosecuted. The Federal Rule of Evidence 402 states, in part states that all relevant evidence is admissible, except as otherwise provided in the rules of evidence. The goal of this rule is to allow parties to present all of the evidence that bears on the issue to be decided, and to keep out all evidence that is immaterial or that lacks what is known as Probative value. Evidence that is offered to help prove something that is not at issue is immaterial. 

EXAMPLE OF EVIDENCE BEING IMMATERIAL 

As an example here the fact that a defendant attends church every week is immaterial, and thus irrelevant, to a charge of running a red light. Probative value is a tendency to make the existence of any material fact more or less probable. For instance, evidence that a murder defendant ate spaghetti on the day of the murder would normally be irrelevant because people who eat spaghetti are not more or less likely to commit murder, as compared with other people. However, if spaghetti sauce were found at the murder scene, the fact that the defendant ate spaghetti that day would have probative value and thus would be relevant evidence.

EXAMPLE OF RELEVANT EVIDENCE

An example of Relevant Evidence would be the testimonial evidence of a witness who observed a man breaking into a building during the night would be relevant evidence to prove a burglary. In addition, if a friend testified that the same man who was breaking into the building was supposed to be at work during the time of the burglary; however, this friend advised that the man called in sick that particular night and was not working like he was supposed to be. This statement would be considered to be testimonial evidence and would also be considered to be relevant evidence due to the fact that it would demonstrate that the man was not at work and could have been somewhere else and possibly committing the burglary.  

However, if there was no vehicle seen at the scene of the burglary and no one saw this person of interest with a car, near a car or a car in the area of the burglary and the same man that advised that the person of interest was not at work advises that this person drives a blue 4 door Camaro. This information would not be relevant to the case and would not be admissible due to it not having any tendency to prove or disprove a pertinent fact or issue at hand. On the other hand, if the same friend advised that he did not see the person of interest at work that night and that he drives a blue 4 door Camaro that the person of interest always parks next to him and the night of the burglary he did not see the blue Camaro when he arrived at work, when he left for lunch and when he left at the end of his shift. 

EXAMPLE OF RELEVANT EVIDENCE NOT BEING ADMISSIBLE DUE TO BEING PREJUDICIAL

The major reason for admitting evidence in a legal proceeding such as a Motion to Dismiss; Preliminary Hearing, or a Trial is to provide the jurors with information directly relating to the crime being charged and to determine if the evidence presented by the prosecution can convince the jury as a whole that the person standing trial is guilty of having committed the crimes they are charged with in the indictment or information. Previously, as was presented in chapter one, it as a requirement for jurors to be informed of the facts and issues of the case; however, over the centuries the change has occurred to where the only information the system wants the jurors to know is what is presented to them in the legal proceeding. The other major aspect of this mindset is that the system insists on the jurors being provided information or evidence that is directly relevant to the actual case that is not prejudicial and does not evoke emotion in the jurors so they make a rational decision and not an emotional one. This is why any evidence which will be so inflammatory and such emotion provoking, notwithstanding its relevancy, cannot be admitted due to it prejudicial effect on the jurors. 

Sometimes relevant evidence can also be inadmissible and the reason would have nothing to do with it being logically relevant to the issues at hand in the trial. One of the reasons for inadmissibility is if evidence, such as a photograph of a dead victim, has a tendency to unduly prejudice or inflame the minds of the individuals who are sitting on a jury. 

A prime example is one that where a murder occurs and the prosecutor attempts to admit photographs of the victim which happen to be really vivid and gruesome of the bloody victim which would depict the victim; however, the prejudice that the picture of the bloody body would outweigh the probative value of the picture by creating a danger of unfair prejudice to the defendant by having them focus on the gory and horrific sight of the blood. It must be remembered that in the United States the defendant is considered to be innocent until proven guilty and this presumption of innocence is paramount in the United States Legal System. 

EXAMPLE OF RELEVANT EVIDENCE NOT BEING ADMISSIBLE DUE TO BEING CONFUSING

The same reason as to why relevant evidence cannot and is not supposed to be admitted into a hearing or trial when it is horrific and possesses the potential of causing prejudice towards the accused and would create an unfair environment for the defendant, is why relevant evidence that can cause confusion in the minds of jurors cannot and should not be admitted into evidence in a legal proceeding or trial. 

Relevant evidence can also be excluded or inadmissible if the item being admitted could tend to cause confusion or if it can create a number of side issues and that trial time would be squandered if this evidence is admitted into the trial. In addition, evidence can also be excluded if it is so remote or so detached or speculative in time or in place that only a very feeble or weak logical inference can be drawn from it.
                                                  Reference

Garner, B.A. (2009). Black’s Law Dictionary 9^th ed. St. Paul MN: West Publishing.

Legal Cases and Decisoins Pertaining to the Officer Invovled Shooting of Child "Tamir Rice"

Cases Addressing Officers Shooting of a Child, Tamir Rice, Who Pulled out Realistic Looking Fake Firearm on Police

By Dr. Peter A. Barone

The cases which are used by the court and by the prosecutors, that family members and other whose definition of justice is only the outcome they want, are out there and the issues and holdings are not hidden. It is amazing what is seen when one takes the time to look and review all of the shootings and other types of use of force cases and comments made by individuals who have no idea as to what the law actually is regarding use of force issues.

We need to have a commonality and a consistent way in which to make these assessments and not let gender, race, age or unjustified and ignorant community comments and actions come into the picture if all of the other prerequisites and requirements have been met. It would be very wise and very prudent to actually follow the United States Supreme Court’s rulings and the state statutes decided by the court and put in place by the legislators; just as it would not be wise to apply the rule of law in a way that is swayed by the media and Monday Morning Quarterbacks as appears to happen frequently and was not followed in this particular case where the law enforcement and prosecutors did follow the law and supreme court decisions. 

It is universally known by anyone who has had any official involvement in a police use of force, and especially a police use of deadly force, investigation that there are a very large number of valid variables involved in each incident, and it seems impossible to give an officer an exact template to follow; however, the protocols and standard operating procedures and the legal holdings from the United States Supreme Court are very good guides if they are actually followed and applied in all cases fairly.

In fact we see that the United States Supreme Court has made it very clear in the case of Terry v. Ohio (1968) that, “. . . It would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” That decision is a very powerful one and it is in support of, and also in favor of, law enforcement officers who may have second thoughts about using their weapon when the required situation presents itself to use force, to include deadly force when the situation warrants a certain level of force and not take unnecessary risks and place themselves and others at risk. Terry v. Ohio (1968) vividly demonstrates deference to the legitimate safety concerns of law enforcement officers and the compelling interests of society in protecting those who are charged with enforcing its laws.

In addition to Terry v. Ohio we see that in Wikens v. Gaddy (2010) the United States Supreme Court held that the issue of reasonable force is not whether the individual suffered any injury during the incident or encounter but the issues is whether the force was reasonable, not the extent of the injury sustained. The Supreme Court went on to further clarify that the law enforcement officer is entitled to continue to their use of force until a suspect thought to be armed is fully secured. The Supreme Court addressed what law enforcement officers can do if they believe the suspect is thought to be armed so when we insert the fact that the suspect is armed it further bolsters the decision of the high court.

                                                                                                                                

As far back as the case of Tennessee v. Gardner (1985) the United States Supreme Court held that when an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, the Court stated, it is not unreasonable to prevent his escape by using deadly force. The Supreme Court went on to say that “Thus, 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.” In this decision the Court states that a warning should be given before firing “where feasible.” The standard established by this decision does not require that a warning must necessarily be given in each instance before the use of deadly force is constitutionally permissible. The Court in this case was very clear in providing guidance as to when law enforcement could and could not use deadly force.

The officers did what they were supposed to do and the video backed their actions up however, again, the family wants justice and again we see that their justice is not the justice defined in law books or in Webster’s Dictionary; it is what they want the result to be which they call and define to be justice. This is a SERIOUS issue and it needs to be addressed and these individuals need to be informed that justice is done when the officers follow the rule of law and the holdings of the Supreme Court and what the detectives, prosecutors and in this case the grand jury have determined. This is justice. There was NO criminal conduct by law enforcement in the Ohio case.

In the case of Graham v. Conner (1989) The United States Supreme Court discussed and addressed the right of a law enforcement officer to make an arrest or investigatory stop and in doing so the Court stated, that these type of action necessarily carries with it "the right to use some degree of physical coercion or threat thereof to effect it." All the law requires is that it be a reasonable amount of force. The Court went onto say that such reasonableness, however, has to be judged in light of the facts and circumstances confronting the officer, rather than on the basis of their underlying motivation or intent. The issue that was addressed in this case was whether the officer acted in an “objectively reasonable” manner based on what they knew at the time. The Court advised that the reasonableness of each particular use of force has to be judged and the view must be from the perspective of a reasonable officer on the scene, and must make an allowance for the fact that police officers often have to make "split second" decisions about the amount of force that is necessary.

It was done in accordance with these requirements and it was reviewed by investigators and was reviewed by the prosecutor and it was reviewed by the actual grand jury of citizens of the community.

Notwithstanding the desire of the family to have the prosecutor bring the cause on behalf of the child it is not their job to do so like a civil attorney would do or defense attorney would do. I was a major crimes felony prosecutor and prosecuted murder cases and all types of major cases and I represented the STATE and SOCIETY and not the victim of the crime. In fact anyone who has studied law or criminal justice knows that the victim of a crime, if they are alive, become WITNESSES and are no longer seen as the victim but as the witness because the STATE becomes the victim and that is why the style of the case is seen as The State of or the Common Wealth of or the United States of America v. the (Defendant).

This case and the Officer’s Actions the officers did everything that was required of them according to Graham v. Connors (1989) and the defense attorney on Fox is an idiot and I would argue with him any day any time. 

The assessment and the investigation of the incident must be based on the facts that the officer knows at that time, or reasonably believes that he or she knows, rather than looking back at the circumstances with hindsight or on the basis of information later discovered but not then known. An officer may, therefore, act upon what he reasonably believes or perceives is a threat of death or serious bodily harm to himself or others, and the fact that he may, for example, be mistaken in believing that a suspect confronting him is armed, will not alter the legitimacy of his use of deadly force Graham v. Conner (1989).

In Garcyznski v. Bradshaw (2009) the 11^th Circuit held that at least where orders to drop a weapon goes unheeded an officer is not required to wait until an armed felon has drawn a bead on the officer or others before using deadly force.  Attorneys and activists often assert that “cops shoot first and ask questions later.” Dr. Lewinski demonstrated that officers must take preemptive action in order to adequately defend their lives. If they wait until they actually see a suspect’s gun pointing at them, it’s too late. The United States Supreme Court has addressed many of these issues and questions. In the case of Jean Baptiste v. Gutierrez (2010), Court of Appeals for the 11^th Circuit advised that the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the subject. Once the child did not comply with their orders and reached for the weapon without an orange tip they were totally justified in taking the actions they took based upon the totality of the circumstances and based upon what they knew at the time of the incident.

In the case Hudson v. McMillian (1992) the United States Supreme Court reaffirmed its prior decision where the Supreme Court held that a "significant injury" is not a threshold requirement for stating an excessive force claim. Instead, the Court stated the core inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm."  Officers are not supposed to be hurt, injured, shot or stabbed before they can take action and use force to defend their lives and stop the threat.

When we examine the case of Williams v. City of Grosse Pointe Park (6th Cir. 2007), the court found that a police sergeant acted objectively reasonably in firing at a stolen car, striking the driver in the back of the neck and leaving him paralyzed. The court in this case discussed the facts that the motor vehicle had been reported stolen, was being driven by a minor, and who had evaded attempts to block the vehicle, going into reverse to collide with an officer's cruiser. When the sergeant pointed his gun at the driver's head, he was knocked down by the vehicle, prior to shooting several rounds. The court advised that no jury, who were presented with the facts, could reasonably find the use of deadly force unreasonable, based on the driver's decision to flee and the immediate threat of harm the driver posed to the sergeant, pedestrians, and other drivers. The Court concluded that it is reasonable for a police officer to use deadly force to prevent harm to innocent bystanders, even to the point of putting the fleeing motorist at serious risk of injury or death Scott v. Harris (2007).

The court provided the following information:

The reasonableness of a use of force turns on whether the officer's actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his subjective intent or motivation." Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012). "The use of deadly force is reasonable where an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others." Id. citing Tennessee v. Garner, 471 U.S. 1, 11 (1985).  We are hesitant to second-guess the "split-second judgments" of officers working in "tense, uncertain, and rapidly evolving situation[s]." Id. at 967, quoting Graham, 490 U.S. at 396-97. "It may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard." Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012).

The court then noted several cases that have reached similar conclusions and advised:

"We have held in prior cases that officers confronted with similar situations acted in an objectively reasonable manner when they employed deadly force. In Loch, the police officer reasonably believed the suspect had a gun, even though in fact the suspect had discarded his weapon before walking toward the officer. 689 F.3d at 966-67. In Morgan, the officer fatally shot a suspect armed only with a knife who disregarded repeated requests to drop his weapon and took a step in the officer's direction. 686 F.3d at 497-98. In Sinclair v. City of Des Moines, we noted that "no constitutional or statutory right exists that would prohibit a police officer from using deadly force when faced with an apparently loaded weapon." 268 F.3d 594, 596 (8th Cir. 2001). In Thompson v. Hubbard, we affirmed the grant of summary judgment in favor of an officer who shot and killed an unarmed fleeing suspect, based on the officer's credible testimony that the suspect "looked over his shoulder . . . and moved his arms as though reaching for a weapon." 257 F.3d 896, 898-900 (8th Cir. 2001). See also Penley v. Eslinger, 605 F.3d 843, 851-54 (11th Cir. 2010)."

RECENT COURT CASE DECISION INVOLVING MAN WITH TOY PISTOL
On September 5, 2014, the Eighth Circuit Court of Appeals decided the Aipperspach v. McInerney et al, in which they upheld as reasonable the shooting of a man with a BB gun and held that a news helicopter’s video of the incident did not provide the perspective of officers on the scene. Officers were dispatched to an apartment and were informed an individual came to apartment and left and headed to woods. The dispatcher advised he might have an unspecified warrant. They began looking for him in the woods. A sergeant heard the call and responded and found him at the sitting at the bottom of a ravine. The officer identified himself and asked him to come up and talk. He refused and produced what was believed to be a black handgun, which is reality was a daisy pistol capable of firing BB’s and pellets. The officer drew his weapon and advised the suspect to drop his weapon. There were several audible requests to drop the weapon due to the fact that he DID NOT YET REACH POINTED the weapon at them and they were a distance away. He pointed the weapon to his head and then he slipped and fell backwards. Once he regained his balance he took the weapon away from his own head and then pointed to towards the

Detective Billy Aaron and Captain Michael Costanzo were dispatched to Hart's apartment. Hart informed them that Al-Hakim had come to borrow money, had left the apartment, and was headed into a nearby wooded area. After speaking with Hart, Aaron and Costanzo were told by police dispatch that there might be an unspecified warrant for Al-Hakim's arrest. They began looking for Al-Hakim in the woods behind Hart's apartment.

Riverside Police Sergeant Dennis Jones heard the police radio call and joined the search. Jones found Al-Hakim sitting at the bottom of a ravine. Jones identified himself and asked Al-Hakim to come up and talk. Al-Hakim refused and produced what appeared to Jones to be a black handgun but was in fact a Daisy 008 air pistol capable of firing steel BBs or lead pellets. Sergeant Jones drew his weapon and yelled to Al-Hakim to drop the gun. Hearing that command, Detective Aaron went down the hill to stand next to Jones, and Captain Costanzo radioed for assistance.

Additional officers from Riverside and neighboring police departments responded to Costanzo's call for officer assistance. In depositions, each officer who observed Al-Hakim in the ravine testified that he believed Al-Hakim was holding a semiautomatic handgun. The Daisy pistol's packaging was on the ground near Al-Hakim, but the summary judgment record does not show that it was visible to the officers. The responding officers positioned themselves along the ridge on the edge of the ravine above Al-Hakim. Sergeant Ballard, armed with a rifle, positioned himself near Sergeant Jones to provide cover for the officers interacting with Al-Hakim. Officer Westrich, armed with a shotgun, and Officer McLaughlan, carrying an assault rifle, moved around the ridge above Al-Hakim and positioned themselves to Sergeant Jones's right, partially covered by trees.

An audio from the lapel microphone of Gladstone Officer Christopher Morales recorded twelve audible requests by Sergeant Jones and other officers that Al-Hakim drop his weapon in the three and a half minutes prior to the shooting. Al-Hakim did not comply. During most of the encounter, he kept the muzzle of the gun pointed at his own body or head, but at one point, Jones testified, Al-Hakim pointed the gun in Jones's direction. Jones warned Al-Hakim that if he pointed the gun at the officers again, they would shoot. A minute or two later, Al-Hakim attempted to change position and slipped, falling backwards. The officers testified that as Al-Hakim regained his balance, he pulled the hand holding the gun away from his own chin and swung it up and around, pointing the gun in the direction of the officers on the ridge. One officer testified that Al-Hakim appeared intoxicated. Within seconds, defendants Ballard, Westrich, and McLaughlan and four other law enforcement officers fired their weapons at Al-Hakim. Ballard testified he perceived Al-Hakim as a threat. Westrich testified he feared for his life and the lives of the officers near him when Al-Hakim swung the gun around. McLaughlan testified he "felt endangered" by Al-Hakim's sudden movement. The sound of the gunshots on Officer Morales's lapel microphone lasted about four seconds.

In the end the court advised: "the inquiry here is not into [Mr. Al-Hakim's] state of mind or intentions, but whether, from an objective viewpoint and taking all factors into consideration, [each defendant officer] reasonably feared for his life" or the lives of his fellow officers (Wilson v. Meeks, 52 F.3d 1547, 1553, 10th Cir. 1995.

                                                                                  References

Estate of Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012)

Garczynski v. Bradshaw, 573 F.3d 1158 (11th Cir. 2009)

Hudson v. McMillian, 503 U.S. 1 (1992).

Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012).

Penley v. Eslinger, 605 F.3d 843, 851-54 (11th Cir. 2010).

Sinclair v. City of Des Moines 268 F.3d 594, 596 (8th Cir. 2001).

Scott v. Harris, 550 U.S. ___ (2007).

Terry v. Ohio, 392 U.S. 1 (1968). 

Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995)).

Wilkins v. Gaddy, 130 S.Ct. 1175 (2010).

Williams v. City of Grosse Pointe Park, No. 05-2409, 496 F.3d 482 (6th Cir. 2007).

 

 

 

No Charges for Cleveland Police Officers in Shooting Death of 12-year-old Tamir Rice

No charges for Cleveland police officers in shooting death of 12-year-old Tamir Rice

By Dr. Peter A. Barone   * Most of the information came from the Washington Post

Cuyahoga County Prosecutor Timothy McGinty announced that a grand jury will not bring charges against police officers involved in the killing of 12-year-old Tamir Rice, who was carrying a toy gun.

(Interesting the way in which the news presents the first sentence. He was playing with a toy gun that looked exactly like a real weapon and the officers were called to the scene as they are in the majority of the police shootings).

CLEVELAND — After more than a year of investigation, a grand jury declined to bring charges against either of the two police officers involved in the fatal November 2014 shooting of Tamir Rice, a 12-year-old boy who was playing with a toy weapon in a Cleveland park.

In announcing the decision here Monday, Cuyahoga County prosecutor Timothy J. McGinty said he did not recommend that the grand jury bring any charges. McGinty added that he believes both of the Cleveland police officers involved in the deadly encounter were reasonable in their belief that Rice had a real weapon, and that new analysis of the video of the shooting leaves it “indisputable” that the boy was pulling the weapon from his waistband when he was killed.

(He took the exact actions that individuals with real weapons take when they intend to shoot someone and which all officers are trained to respond to when confronted with these types of actions.)

McGinty said that the shooting death of Rice did not meet the standard of a crime.

(The officer had no criminal intent to shoot a young child he was simply defending his own life which he has the right to do in accordance with the supreme court.)

“The death of Tamir Rice was an absolute tragedy but it was not, by the law that binds us, a crime,” McGinty said, before adding that he informed Tamir’s mother of the decision before announcing it publicly. “It was a tough conversation. … She was broken up.”

The boy’s mother, in a statement released early Monday night said the decision not to charge the officers involved in the death of her son left her family without any faith in the justice system.

(Here is the major PROBLEM today people use the word JUSTICE to mean they did not get what they wanted and if they did then it is justice but if it is not the law does not matter because what matters is what  they feel they want done. Justice is not what you want it is WHAT IT IS IN ACCORDANCE TO THE LAW!)

“Prosecutor McGinty deliberately sabotaged the case, never advocating for my son, and acting instead like the police officers’ defense attorney,” Samaria Rice said, adding that she believes race was a factor in her son’s death and extended solidarity to the families of other black men and women killed by the police. “I don’t want my child to have died for nothing and I refuse to let his legacy or his name be ignored. We will continue to fight for justice for him, and for all families who must live with the pain that we live with.”

Now we have uninformed individuals who are ignorant of the system saying things about the prosecutor not advocating for her son. Well that is absolutely correct. The prosecutor DOES NOT represent the victim; they represent the people and they seek the truth and not revenge. When officers see a gun they are not looking at race, religion, or even age; they are looking at the weapon and want to survive.  

Tamir Rice’s death came just days before massive protests and unrest would break out in Ferguson, Mo., and New York City after officers in those cities were cleared in the deaths of Michael Brown and Eric Garner.

These cases should not in any way have an effect on the decisions made by the prosecutor and the grand jury.

The deadly shooting here prompted a round of protests that at times blocked freeways and interrupted public meetings, with local residents demanding indictments for Loehmann and Garmback. Local activist groups vowed on Monday, a cold and rainy day here, to again take to the streets, and Mayor Frank Jackson urged calm during a late afternoon news conference.

The individuals here want to protest the proper and legal decision made by the system because it did not fall in line with what they wanted because if they wanted justice then the system provided that but that is not what they wanted so now they are going to do what they feel is right to correct the system.

And, though some protesters gathered, all remained calm in downtown Cleveland and at the Cudell Recreation Center, the westside park where Rice was killed. By 3:45 p.m. some demonstrators had begun to gather, with signs demanding “Justice for Tamir Rice” and declaring the boy “stolen by law enforcement.”

It is not clear why they do not say what they really mean because justice has been done and the system has accessed and evaluated and made their decision but again because it was not the result they wanted in their minds there is no justice and there won’t be until the system acquiesces to their definition or what they see as being justice. 

On the day of the shooting, the two officers were responding to a call about a young man with a gun who was pointing it at people outside a local recreation center. Although the caller specified to the dispatcher that the person in question was possibly a child playing with a toy, that information was not relayed to the officers and the officers responded to the call as an “active shooter” situation, authorities said.

This is what the officers were provided and with the change in the way law enforcement responds to active shooters they acted the way they are trained. Not to mention the ORANGE tip to indicate it was not real was REMOVED. How much did this contribute to the legal actions of these officers.

The officers approached the park from a side street, pulling directly up on the grass where Tamir was playing rather than approaching from the paved parking lot.

“I made the decision to approach the park from West 99th,” Garmback, who was driving the cruiser, said in his statement. “West 99th dead ends at the park, very near the swing set. From there I knew we would have a good view of the swing set, and good access, if necessary, as that is where the male was reported to be.” Tamir Rice was not at the swing set, having moved to a nearby gazebo. “I believed at first the male was going to run,” Garmback said. “I think I told my partner ‘watch him he’s going to run.’ However he stopped and turned toward the cruiser.”

Both officers said that, as their cruiser continued to drive toward the boy — now on the snow-covered grass — they were moving at about 10 miles per hour, and that when they attempted to stop, the car slid.

As that happened, “I started to open the door and yelled continuously ‘show me your hands’ as loud as I could,” Loehmann said in his statement.

“I kept my eyes on the suspect the entire time. I was fixed on his waistband and hand area. I was trained to keep my eyes on his hands because ‘hands may kill.’” The officer said that, as he exited the car, he saw Tamir lift his shirt and reach into his waistband; Loehmann said he attempted to run to the back of the vehicle.

“The suspect had a gun, had been threatening others with the weapon and had not obeyed our command to show us his hands. He was facing us,” Loehmann wrote. “This was an active shooter situation.”

Everything done here was correct. The officer does not have to wait to be shot at before using deadly force when considering the totality of the circumstances which the officers did.

Loehmann said that he then saw Tamir Rice’s elbow moving upward, and that the weapon was coming up out of his waistband so he fired two shots. “I saw the weapon in his hand coming out of his waistband,” he wrote. “The threat to my partner and myself was real and active.”

This offices actions were right on target and correct in this situation.
McGinty and other officials from the prosecutor’s office said Monday that they believed the officers’ story, noting that the toy gun appeared identical to a real weapon, that the 12-year-old looked much older than he was, and that both officers behaved in ways consistent with the Cleveland police’s policies for dealing with an “active shooter” situation. And, McGinty added in a news conference Monday afternoon, an enhanced video of the shooting showed that Tamir Rice was reaching into his waistband and pulling out the toy weapon.

All of their actions on camera and meets the standard for the actions they took and yet there is still a call for justice. Justice was done and delivered.

“If we put ourselves in the victim’s shoes, as prosecutors and detectives try to do, it is likely that Tamir — whose size made him look much older and who had been warned that his pellet gun might get him into trouble that day — either intended to hand it to the officers or to show them it wasn’t a real gun,” McGinty said. “But there was no way for the officers to know that because they saw the events rapidly unfolding in front of them from a very different perspective.”

If someone warned him then why did they not do something about letting him keep the toy gun with the orange tip removed.

Cleveland police sent the case to the Cuyahoga County Sheriff’s Department, which later provided its investigation to McGinty’s office in order to determine whether charges would be filed. As the investigation stretched from weeks to months, and eventually past the one-year mark, the Rice family and civil rights activists grew increasingly agitated — convinced that no charges for the officers were coming.

“However … I conclude that Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”

This is the correct decision.

Congresswoman Marcia Fudge (D) said in a statement that that McGinty’s decision to release pieces of evidence throughout the ongoing investigation tainted the process, and that he should have stepped aside and allowed for a special prosecutor.

Why Democratic congresswoman; why??

How was it tainted? How??

Why should he have stepped aside because you also want a different type of justice which is what the family wants and not what the law called for as it did?

“Although the grand jury decision may be the right one, we will never know because the prosecutor refused to step down and allow an independent review,” Fudge said. “The prosecutor conducted the investigation in a manner that I believe inappropriate and as a result he has lost the trust and confidence of our community, and, indeed, mine as well.  I accept the decision, but the means do not justify the end.”

The legal cases will be provided in the next posting.

 Dr. Barone

 

 

What is Testimonial Evidence and How Important is it in a Criminal Case?

                                                                Testimonial Evidence

Testimonial evidence is evidence which comes to the court, during pre-trial procedures and trials, through witnesses speaking under an oath or an affirmation. Many times in many texts and in conversations the word “testimony is used synonymously with the word evidence. However, when examining both words it is pretty clear that evidence can be and is many things such as writing, guns, glass, hammers or photographs and testimony is actually oral evidence and is actually part of evidence. In fact it is critically important to understand that real evidence cannot be admitted into evidence without testimonial evidence. The person who actually took the items into evidence is the person who has to testify that this is the exact items that they saw and then impounded (took or placed) into evidence and that this is that exact item. In the case of a photograph then the person who looked at the item through the lens of the camera and then took the photograph must be available to testify to the fact that they saw the item when looking through the lens of the camera and took the picture. They must also be able to testify to the fact that the item in the photograph that they are identifying is the same thing that they saw when they took the picture and it accurately reflects that they saw when they saw it. Without the testimonial evidence the real or demonstrative evidence cannot be admitted into a trial and if for some reason it is then it is susceptible to be suppressed via a motion to suppress.

 

EXAMPLE OF TESTIMONIAL EVIDENCE

As an example of testimonial evidence would be if a prosecutor wants to have a hammer entered into evidence that was used in an aggravated battery or a murder case the prosecutor will need the officer or detective who located and impounded the item to testify, (provide testimonial evidence), regarding their actions and the fact that the item offered to be presented into evidence is the items they located, collected and impounded and it is directly related to this criminal proceeding. It would be the same it the item was a gun or a knife or a photograph that was presented to be admitted into evidence in a legal proceeding or a trial. If the prosecutor does not have the testimonial evidence of the law enforcement official they will not be able to introduce the item.