In a report released Monday the Cuyahoga County Prosecutor’s Office included a photo of what it says is a real gun next to the replica gun 12-year-old Tamir Rice was using the day he was shot dead by a Cleveland, Ohio, police officer, saying the pellet gun was “functionally identical” to a real weapon.
The 74-page report released in the wake of a grand jury’s decision on Monday not to indict officer Timothy Loehmann or his partner, Frank Garmback, in connection with Rice’s death.
Rice had the top gun when he was shot dead by Lohemann on a playground outside a Cleveland recreational center in Nov. 2014. A concerned onlooker called 911 and reported seeing someone with a gun at the playground. However, information given to the 911 operator that the suspect may have been a minor and the gun may have been fake was never passed on to dispatch.
“Even to a trained eye, careful side-by-side comparison is required to notice the differences,” the report says of the toy weapon.
“It is indisputable that the difficulty distinguishing between a real and toy gun under the relatively calm circumstances of an office or courtroom become a functional impossibility for the officer confronted with a stressful, dangerous situation in the field,” the report continues.
“During the tense, uncertain, and rapidly unfolding moments of an actual encounter, the officer facing a suspect carrying what appears to be a gun often does not know if it is real or fake,” the report says. “Worse, the officer will know that if he guesses wrong, that may be the end of his life. When an officer faces a suspect displaying what clearly appears to be a real firearm – even when that turns out to be a mistaken belief – the law does not prevent the officer from using deadly force to defend himself, other officers, or the public from what the officer believes is a suspect with a deadly weapon.”
According to the report, the orange tip that would normally be included on a replica to indicate that the gun was fake had been removed, along with the laser sight.
Typically a warning label on the packaging would indicate that removing the orange tip of the gun “is dangerous, may cause confusion, may be mistaken to be a real firearm by law enforcement officers of others and may be a crime.”
Other witnesses said the pellet gun had previously malfunctioned and that Rice was unable to replace the orange tip on the gun after putting it back together.
The report states that there is evidence that on the day of the incident, at least two people warned Rice not to use the gun without the orange tip in a public place, but there is no evidence that he ever saw the warning labels on the toy’s packaging.
Cuyahoga County Prosecutor Timothy McGinty said today he recommended that no charges be filed against the officers. After the grand jury “heard all the evidence and the applicable law, they were told our recommendation,” the prosecutor’s office said, ABC reported. “But they made the final decision.”
Rice’s family attorneys said they are renewing their request for the Department of Justice to conduct an investigation into the shooting. His family insists that Rice’s hands were in his pockets when police shot him.
The Cleveland mayor said Monday the city will proceed with an administrative review of the incident now that the criminal process has ended.
• Kellan Howell can be reached at khowell@washingtontimes.com.
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