I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…
A reasonable person could conclude that the officer who shot and killed unarmed Michael Brown in Ferguson, Missouri, should not have been indicted by the grand jury there. I am not that reasonable person, but a reasonable person could do that. The few who witnessed that killing were all black people, and why should jurors believe black people.
No person of any color could reasonably say the same about the policeman who choked Eric Garner to death in New York City last summer, or the policeman who shot twelve-year-old Tamir Rice to death in Cleveland last month. Daniel Pantaleo and Timothy Loehmann committed their crimes on video, for all to see.
Here is what we see, what we hear, if we are the grand jurors who don’t indict the white cop who killed this giant forty-three-year-old black man.
And for most of us he is a giant — six feet, three inches, three hundred fifty pounds — a giant we surely would run from should he come at us threateningly. But he isn’t threatening: he’s backed against a storefront, surrounded by five armed policemen.
He’s hot; he’s sweating. He’s just broken up a fight. The other men have left, but the cops who arrive recognize Garner. He’s sold black market cigarets before, cutting out the taxman. Maybe he’s doing it now.
“I did not sell nothin’” Garner says, exacerbated. “I’m minding my business, officer. Please just leave me alone.” No one says, “You’re under arrest.” No one says, “Assume the position.” Two of the officers move close to Garner. Pantaleo comes from behind, throws his left arm around Garner’s fat neck in a chokehold, squeezing the vise, cutting blood and air. The chokehold was banned by the NYPD more than twenty years ago; it was the first tactic Pantaleo used to control Garmer.
Two other officers rush in to bring Garner down. Pantaleo rides Garner’s back, held tight in place by the relentless chokehold.
They roll Garner over onto his stomach; Pantaleo releases the chokehold, pushes Garner’s head against the concrete, holds it there, leaning into it.
“I can’t breathe, I can’t breathe, I can’t breathe,” Garner whimpers, over and over and over, by one count eleven times, weaker each time, the last barely audible, and dies. There is no mistaking it: the man is now dead. Were he alive, his great chest and belly would be heaving, struggling to take air. He is still. The stillness of the dead.
And the police, and the paramedics who arrive, know it. They know the dead. But they pretend he is still alive. The people on the sidewalk must not be told a man has been killed before their eyes. So the police pat the dead man encouragingly, the paramedic talks to the corpse. Other police move the crowd back. One cop says, “Would you back up please, try to give him some air?” They’ve already taken his air. To his credit, the cop knows it, and looks deflated. They didn’t mean to kill him. They’ve already checked his pulse, and check it several more times; it isn’t coming back.
Pantaleo stands off from the body, looks into the camera, and waves cheerily. Maybe he’s already disconnecting from the reality of what he’s done; maybe he doesn’t give a damn.
We’ll probably never know. The grand jury which has seen this video, has heard a different narrative, and doesn’t indict. Grand juries are led by prosecutors, step by step, toward indictments. Prosecutors aren’t on a search for the truth when they convene grand juries. They’re on a mission to indict. They present only those facts, only that testimony, that leads, step by step, to indictment. That’s the meaning of the old saying, that a prosecutor could indict a ham sandwich. This prosecutor didn’t want to indict this ham sandwich. And so this prosecutor presented the evidence the way a defense attorney would have it in his dreams: in a light most favorable to the accused. In that light, this policeman walked.
Pantaleo committed homicide, but according to the grand jury and the prosecutor who acted instead to defend Pantaleo, it was a legal homicide. One of more than a hundred police killings every year that the FBI chooses to overlook in federal statistics. These deaths, mostly of men of one color or another other than white, don’t count.
One of those deaths is the subject of the other video I mentioned. Not the death of a black man, though the officer who shot him, saw him as a black man who needed killing. The video shows the police killing a boy not yet thirteen.
Tamir Rice’s crime was the crime of my own boyhood, the crime of my son’s boyhood, the crime of his friends’ boyhoods. I used to call it cops ’n’ robbers, after what I saw on TV. Maybe Tamir called it boys in the ‘hood, after what he saw on TV. It was the crime of being a boy.
I had a six-gun; Tamir, like my son and his friends, had an Airsoft gun, a toy that fires plastic BBs but looks like a real gun.
Last month Tamir took his Airsoft toy to the park.
The video shows him walking back and forth along the sidewalk, in front of a gazebo, where a man sits, watching. Tamir twirls the gun around his finger, points it off-camera, makes a snowball, lofts it splat on the sidewalk. Meanwhile the man in the gazebo calls the police, says a guy who is probably a kid has a gun that is probably fake and is pointing it at people.
Cleveland is probably not the place to make a call like that.
The United States Justice Department released a report today, following a two-year investigation, that excoriates Cleveland police for a pattern of excessive force. Pieces of the pattern:
- Two years ago more than one hundred officers chased a black man and woman through the streets after their car backfired and one of the officers claimed police were fired upon. The cops went Bonnie and Clyde on the unarmed couple: thirteen of them fired one hundred thirty-seven shots at the car, killing them both. Each was shot more than twenty times.
- Cops there like to shoot, or shoot at, people who pose no threat to anyone. A hostage escaping his captors, running to police for safety, was shot at twice by a sergeant who mistook him for one of the bad guys. The hostage was naked except for boxer shorts, and was saved only by the sergeant’s incompetence with his firearm.
- Officers like to hit people upside the head with their guns. One off-duty cop in civilian clothes drew his weapon on men who thought he was robbing them, and when one of the men insisted on seeing a badge, the cop hit him alongside the head with the gun, which went off and grazed the man’s skull.
- Officers routinely hit and kick helpless suspects, and tase and mace others. They especially appear to enjoy using Tasers and mace against the mentally impaired, the mentally ill, and people in medical crisis. The report describes one captured suspect, prone on his stomach with arms and legs spread, surrounded by officers kicking and punching the man. In another case, a thirteen-year-old shoplifter, handcuffed in the back seat of a patrol car, kicked at the door, which struck an officer in the leg. The six-foot-four, three-hundred-pound offended officer opened the door wide, sat on the five-foot-eight, one-hundred-fifty pound boy, and repeatedly punched his face bloody.
So, Cleveland police officers are used to dealing with children in ways that leave a lasting impression. It was certainly that way with Tamir. The police, who were pointedly informed by dispatch that the suspect was black, struck with breathtaking swiftness.
In the video again, Tamir now sits alone under the gazebo, the Airsoft gun tucked into the front of his pants and covered by his parka, when he looks to his left and sees a police car speeding right at him, off-road right onto the playground. He gets up and starts to walk toward it. He lifts the right side of his parka to show them his toy gun, still in his waistband, where it remains.
Officer Timothy Loehmann, encouraged to resign from another Ohio police department two years earlier because “(h)e could not follow simple directions, could not communicate clear thoughts nor recollections, and his handgun performance was dismal,” opens his passenger side door with his own real gun already drawn and unhesitatingly fires twice from six feet away, hitting Tamir once. Once was good.
How fast does this happen? Police admit to two seconds. It is less than two seconds. Officer Loehmann shoots Tamir and is already cowering behind the back of the patrol car before his partner can open his own door. Both men keep their pistols prudently trained on Tamir as he writhes on the ground, screaming. (There is no audio in the video, but unless you have the imagination of a clam, you can hear him screaming.) Neither man tries to help him.
Four minutes went by until another police car arrived, whose officers did try to help the boy before an ambulance appeared three minutes later to take him to the hospital, where Tamir died almost nine and a half hours later.
The Cuyahoga County medical examiner described Tamir’s appearance as “consistent with the reported age of 12 years.”
Loehmann and his partner said they thought he was twenty. A dirty black man no one wanted to touch. Not a boy, his intestines shredded by a metal-jacketed police bullet, bleeding out on a playground. Not a boy whose mother was but blocks away waiting, waiting for her dear child to come home to dinner. Waiting, now, forever.
I can’t breathe.
I can’t breathe.
I can’t breathe.