Ohio activists ask judge for arrests in Tamir Rice case using obscure law

Tamir Rice (Reuters/Aaron Josefczyk)
Cleveland community leaders are bypassing the criminal justice system and taking the law into their own hands in the death of 12-year-old Tamir Rice, using an obscure Ohio statute to ask a judge to request murder charges against the officers who shot him.

A group of seven activists filed a 137-page citizen’s affidavit for probable cause with a judge on Tuesday, seeking the arrest of Cleveland Police Officers Timothy Loehmann and Frank Garmback. The two men are accused of shooting and killing Rice while he was playing with a toy gun at a recreation center playground in November.

“Today we are not taking actions against police officers, we are taking actions for the people,” Rev. Dr. Jawanza Colvin, pastor of Olivet Institutional Baptist Church, told reporters after the group met with the judge in the case.

On Wednesday, the Cuyahoga County Sheriff’s Office turned its investigation over to the County Prosecutor’s Office, which must decide whether or not to charge the two policemen with any crimes. An unnamed source told WEWS that the "investigation and evidence shows the lack of evidence to support that a crime was committed in the shooting of Tamir Rice."

There have been no arrests or charges filed as of the conclusion of the police’s six-month investigation into the shooting, frustrating Cleveland residents who have sought justice since Rice's death. Community leaders thus decided to use Ohio law in their favor to bypass the prosecutor’s office and directly ask a judge to request the officers’ arrests.

“We are still waiting for the criminal justice system to enact justice in the name of Tamir Rice. It has been more than six months since his tragic death and, yet, the people still have no answers and no one has been held accountable,” Colvin said in a statement. “Today, citizens are taking matters into their own hands utilizing the tools of democracy as an instrument of justice.”

Section 2935.09 of the Ohio Code, passed in 1960, allows for a “private citizen having knowledge of the facts who seeks to cause an arrest or prosecution" to "file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed by the prosecuting attorney.” The rule says that the complaint may be filed “in order to cause the arrest or prosecution of a person charged with committing an offense in this state.”

The community leaders worked with Walter Madison, a lawyer for the Rice family, as they wrote the affidavit.

“The writing is on the wall,” Madison told the New York Times. “If you look at every other instance, it ends up unfavorable to the families.”

“Here we are taking some control of the process as citizens,” he added. “We are going to participate without even changing the law.”

Those who signed and delivered the document said they didn’t trust the criminal justice system that has historically let police implicated in officer-involved shootings walk free.

“Let’s get it into the courts and get it before the people, and let’s get what is happening in the investigation out there to the community,” Rhonda Y. Williams, a history professor at Case Western Reserve University in Cleveland who signed the affidavit, told the NY Times beforehand. “And let’s give the defendants their rights to defend themselves, and let’s have a criminal justice system that works.”

READ MORE: DOJ: Cleveland police have exhibited pattern of excessive force

In a statement, Cuyahoga County Prosecutor Timothy J. McGinty called the group’s actions premature because he had not yet completed his inquiry into the case.

“Once the investigation is complete ‒ and in the death of Tamir Rice, it is not at this time ‒ all evidence and expert analysis will be presented to the Grand Jury,” McGinty said. “The Grand Jury in Cuyahoga County, by the policy of the County Prosecutor’s Office, ultimately makes the charging decision in all fatal use of deadly force cases that involve law enforcement officers.”

The police union denounced the community leaders’ decision to bypass the traditional order of investigation and prosecution, blaming the “Ferguson Effect” for increased lawlessness and mistrust of police.

“Talk about a grandstand of vigilantism. This is yet another attempt to totally disrespect and disregard our justice system,” Steve Loomis, president of the Cleveland Police Patrolmen’s Association, said in a statement to WJW. “The same ambulance chasing attorneys that demanded a ‘transparent investigation from an outside agency be completed’, and that the facts of that investigation ‘be presented to the Grand Jury’, have now changed their minds. These same folks now want to bypass not only the independent investigation they demanded, but the grand jury system as well.”

Loomis also blasted the community, saying that “these ambulance chasers… NEVER hold the involved suspects accountable for their actions and continue to ignore the generational and decades old issues that continue to degrade and plague our society.”

On November 22, 2014, Loehmann and Garmback responded to reports of a person with a gun at Cudell Recreation Center,an area park. Within two seconds of exiting the police cruiser, Loehmann fired two shots at Rice, striking him once in the abdomen and killing the 12-year-old. The release of the 911 tape later revealed the caller said he thought the gun was being brandished by a juvenile and was “probably" fake.

“We have the video, and having witnessed it, you can see that it took two seconds for the officers to shoot a 12-year-old boy who showed no malicious intent or aggressive behavior,” Colvin told the NY Times. “There is certainly reasonable suspicion that a crime was committed.”