Community activists and lawyers, tired of waiting for prosecutors to take action, invoked a rarely used Ohio law Tuesday to expedite their effort to have two cops charged with murder in the shooting death of 12-year-old Tamir Rice.
The Rice family’s attorney, Walter Madison, and others gathered at the Cuyahoga County Justice Center in Cleveland, and under provisions of the seldom-used Revised Code 2935.09 skirted prosecutors in the case, filing affidavits to a judge to ask for murder charges and arrest warrants.
“When those who are charged with the duty to enforce the laws on our behalf find themselves on the other side of the law, we the people only naturally have a right to call into question their behavior,” Madison said in an interview with Yahoo News.
On Nov. 12, 2014, rookie officer Timothy Loehmann fatally shot the sixth-grader within seconds of arriving at a city park with his partner, Frank Garmback. They were responding to a 911 call about a man in the park with a firearm.
The incident was caught on surveillance footage that has been widely shown in news reports.
On the heels of a scathing Department of Justice report released in December that found a pattern of unreasonable, excessive force in the Cleveland Police Department, this move from community activists is one more sign that citizens have little faith in their local law enforcement.
The cited statute — Ohio Revised Code 2935.09 — allows anyone with information about illegal activity to file an affidavit for an official to review. It was established in 1960 to give private citizens an avenue when they feel police are not doing anything about a crime.
“A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the offense committed with a reviewing official for the purpose of review to determine if a complaint should be filed,” the law reads in part.
Several other high-profile cases over the past year — most notably the deaths of Michael Brown in Ferguson, Mo., and Eric Garner in Staten Island, N.Y. — have led some African-Americans to lose faith in the impartiality of the criminal justice system.
Ric Simmons, law professor at Ohio State University’s Moritz College, says that 2935.09 is rarely used and typically reserved for minor offenses; namely when a victim does not feel police or a prosecutor are taking their case seriously.
“It petitions a court to force the police to take action,” he told Yahoo News. “It requests for a judge to decide whether to issue preliminary charges against a defendant.”
If charged, the case would be handed over to the prosecutor’s office — so the law does not allow complainants to bypass the prosecutor entirely.
Jonathan Witmer-Rich, professor of law at Cleveland-Marshall College of Law, said the community leaders are on solid legal ground in filing the affidavit. But, he said, an indictment would still need to come from a grand jury.
“Ultimately the matter lies with the prosecutor and the grand jury as to whether they will pursue charges,” Witmer-Rich told Yahoo News. “It’s certainly a way for them to put pressure on the prosecutor so they move quickly.”
Madison said his team is reading the law in conjunction with Ohio Revised Code 2935.10, which outlines the procedure for filing an affidavit.
Michael Benza, a law instructor at Case Western Reserve University School of Law, said that 2935.10 mandates that a judge must issue an arrest warrant unless it is decided that the affidavit was submitted in bad faith or it is not a meritorious allegation.
“I don’t think you can say that this has been submitted in bad faith,” he said to Yahoo. “I think there will be enough for the judge to say this has merit and therefore issues the arrest warrant.”
Madison said Ohio Revised Code 2935.09 should be thought of as an affirmation of “civilian participation rights,” not a person’s ability to sidestep the prosecutor’s office.
After all, he said, law enforcement officials file charges on behalf of the people. When those officials are suspected of the crimes, private citizens have the right to hold them accountable, he said.
“We have a dead 12-year-old kid who’s the face of this movement now,” Madison, the family attorney, said, “and his family’s been waiting for more than six months. Pardon them for not being optimistic.”
Several activists gathered with Madison Tuesday to discuss their latest legal maneuver and the current state of police-community relations.
Joe Worthy, director of youth leadership and organizing for the Children’s Defense Fund in Ohio, asked if Rice would still be alive had he been white.
“That’s a critical question. And the truth is we’ll never know for a lot of reasons,” he said at a press conference announcing the petition. “One of those reasons is that black communities are policed far more often than white communities.”
Rhonda Williams, founder and director of the Social Justice Institute at Case Western University, said at the press conference that people who saw the video are experiencing a range of emotions.
“Incomprehension, disgust, anger, fear, disappointment and lack of faith,” she said. “None of which are prescriptions for building community trust and transparency in the policing and criminal justice systems.”
For Madison, there is something quintessentially American about all these civilians going directly to the courts to air their grievances.
“I think it’s one of the most American things that we’ve witnessed in modern American jurisprudence,” he said. “You have the people getting involved and active in its own government.”