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Why Cops Are Different

Cleveland police officer Michael Brelo was acquitted in a lethal use-of-force case this spring. Photo by Joanna Richards
Cleveland police officer Michael Brelo was acquitted in a lethal use-of-force case this spring. Photo by Joanna Richards

By Joanna Richards

Local activists are giving the Cuyahoga County prosecutor tens of thousands of signatures today, demanding criminal charges against two Cleveland police officers involved in the death of Tamir Rice. The 12-year-old was shot by an officer outside a recreation center last November after he was seen waving a realistic-looking toy gun.

Activists who dubbed themselves The Cleveland 8 recently publicized a litany of complaints about the shooting investigation. They point to the Rice case as an example of cops being let off the hook by a system that favors them.

It turns out activists, prosecutors and legal experts agree that police officers accused of crimes in lethal use-of-force cases are treated differently than ordinary people. But how and why they get different treatment, and what that means – views on that vary widely.

Police are different. And that can change how their cases are handled in several ways.

Here are four.

One: their jobs inherently involve force.

“They’re really the only civilian profession where we give them weapons, and tell them that as part of their duties as officers, they need to use them to protect us and themselves,” said Matthew Meyer, an assistant Cuyahoga County prosecutor.

“Police officers have to be analyzed in terms of the 4th Amendment to the United States Constitution, to determine whether their actions were reasonable – whether a reasonable officer, in that person’s position, would have felt the need to use deadly force under those circumstances,” Meyer said.

So: number two – police use of force is seen through a different lens. The question is rarely, “Did the officer use force?” It’s whether that force was justified. 

This spring, Cleveland police officer Michael Brelo was acquitted of charges for his role in a massive police chase and shooting that killed two unarmed people in 2012. His defense attorneys emphasized that police have to act fast to bring volatile situations under control.

Meyer said in police killings, it’s really difficult to prove the use of force wasn’t justified.

“Short of proving that someone should get the death penalty, I can’t think of another standard in criminal law that’s more difficult for us to satisfy,” he said.

Three: another difference with police – one that activists highlight – is that there’s an institutional relationship between the prosecutor’s office and police departments.

“I think part of some of the bad reactions over the last two years have come from a frustration where the system seems rigged against the citizen, or in favor of the police,” said Michael Benza, a professor who teaches criminal law at Case Western Reserve University’s law school.

He said many prosecutors – including Cuyahoga County Prosecutor Timothy McGinty – are adopting the policy of sending every lethal police use-of-force case to a grand jury for review, as a layer of citizen oversight.

“Adding something that can make it look and be more fair makes it better for the public to be able to say, ‘I don’t like it, but I can accept it,’” Benza said.

But Edward Little doesn’t accept it. He’s one of the Cleveland 8 activists. While he thinks automatic grand jury review “has some merit,” he said, “I think we do have to be mindful that he does control the process.”

Ever heard the saying that prosecutors “can indict a ham sandwich”? There’s a common perception that grand juries, held behind closed doors, are just tools of the prosecutor, and indictments are easy to get. So activists find it suspicious that police aren’t indicted more often.

Jon Oebker, a former assistant Cuyahoga County prosecutor, said in a way, it all boils down to: do you trust your elected official?

“I think the proof is in the recent history in Cuyahoga County, where Prosecutor McGinty aggressively prosecuted officer Brelo. I think that’s an example of how police officers aren’t receiving special treatment,” Oekber said.

But many local activists like Little weren’t satisfied with Brelo’s prosecution, and aren’t impressed with McGinty. They wanted all the officers involved in the shooting deaths of Malissa Williams and Timothy Russell charged and tried.

Some members of the public, in Cleveland and around the country, believe the broader relationship between prosecutors and police make conflict-of-interest inevitable when officers are accused in line-of-duty deaths.  

Michael Benza, of Case Western’s law school, says some prosecutors are now going one step beyond grand jury review and asking outside prosecutors – who don’t work with the local police department – to handle any lethal-force cases.

Meyer, from Prosecutor McGinty’s office, said the policy there is recusal only when there are specific, personal conflicts of interest.  

Finally, the fourth reason police killings are different: the social and political ramifications.

It’s been eight months since Tamir Rice was killed. Activists charge officials with dragging their feet.

Oebker, the former assistant county prosecutor, agrees that with cops, the process is often slower. But he doesn’t think Rice’s death is being swept under the rug – just the opposite.

“Everyone is being very careful, because they know there’s a lot of eyes on this case,” he said.

Officials in the prosecutor’s office say it just takes more time to build a case against cops.

They say poor hires, bad tactics, inadequate training and equipment – a police department’s flaws can cause preventable, tragic deaths that still cannot be prosecuted as crimes.

Cleveland’s police reform agreement with the U.S. Justice Department lays out a plan for improvement in all those areas.

But activists like Ed Little say that’s not enough – certainly not in the Tamir Rice case.

“If we can’t get an arrest and a charge in the shooting of a 12-year-old child, where and when can we get an arrest and a charge?” Little asked.

Prosecutor McGinty has said it could be months before his office wraps up its investigation into the case.

CORRECTION: A broadcast version of this story that aired during Morning Edition Thursday, July 23rd, misstakenly said that activists had already petitioned for charges against the police officers involved in Tamir Rice's death, on Wednesday, July 22nd. That happens today, Thursday, July 23rd. We regret the error.