By Kris Wernowsky | Northeast Ohio Media Group
CLEVELAND, Ohio — The man who penned one of the two reports that concluded the Cleveland police shooting death of 12-year-old Tamir Rice was “reasonable,” also helped with an investigation earlier this year that cleared a Denver police officer of killing a 17-year-old girl.
S. Lamar Sims, senior chief deputy district attorney in Denver and police use-of-force expert, was hired by Cuyahoga County Prosecutor Timothy J. McGinty to review the evidence in the Nov. 22, 2014 shooting of Tamir outside the Cudell Recreation Center on the city’s West Side.
McGinty released Sims’ 52-page analysis Saturday, calling it one of the first of several reports and studies that a grand jury will consider when it decides whether Tamir’s shooter, officer Timothy Loehmann, and his partner Frank Garmback will face criminal charges.
“There can be no doubt that Rice’s death was tragic and, indeed, when one considers his age, heartbreaking,” Sims wrote in the analysis of Tamir’s death. “However, I conclude that Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”
Sims also is one of several from the Denver District Attorney’s Office to work on a 38-page report that cleared two Denver officers of the death of Jessica Hernandez, who was killed Jan. 26 when the officers opened fire as she drove toward them in a stolen car. Sims’ boss, Denver District Attorney Mitchell R. Morrissey, signed the report. Sims’ name appears as a contributing researcher.
Much like Tamir’s death, Hernandez’s killing sparked protests and calls for the district attorney to charge the officers.
Officers Gabriel Jordan and Daniel Greene were investigating a report of a suspicious vehicle parked in an alley. The car contained five sleeping teenagers, including Hernandez. Within the span of a minute, the officers approached the car from both sides and shouted for the teens to get out.
The officers and a witness said the driver of the car, later identified as Hernandez, sped toward one of the officers. Jordan suffered a chip fracture in his ankle, but said in statement given to investigators that he wasn’t struck by the car.
He used his left hand to push away from the driver’s side of the car as he used his right to shoot into the windshield, the report says. Greene fired from the driver’s side.
Eight bullets struck the car. Three hit Hernandez, but no one else was hurt.
The report on the Hernandez case mirrors many of the conclusions contained in Sims’ report on the shooting of Tamir: That the officers had reason to believe that their lives were in danger, and that they had a split second to make a decision.
“Hernandez chose to not comply with those orders,” the report says. “Perhaps she feared being caught driving a stolen car. Perhaps her judgment was impaired by marijuana and alcohol. We can draw these inferences from the facts. However, what is clear from the facts and needs no inference, is that her decisions created a very dangerous situation — not just to herself and to the officers, but also to her friends who were in the car with her.”
Sims wrote of Loehmann:
“There can be no doubt that Rice’s death was tragic and, indeed, when one considers his age, heartbreaking. However, I conclude that Officer Loehmann’s belief that Rice posed a threat of serious physical harm or death was objectively reasonable as was his response to that perceived threat.”
Sims’ involvement in the Tamir case came months after he gave a speech at an event hosted by McGinty in March, when he said that it is hard to prove beyond a reasonable doubt that an officer did not shoot a suspect based on thinking their life or someone else’s life was in danger.
“The perceptions that most people have are not based on an understanding of the law, or the realities of force,” Sims said at the time.
That sentiment is echoed in an addendum to the Hernandez report titled “Officer-Involved Shooting Protocol 2015.” Sims’ name also appears in the addendum.
Research cited in the addendum showed that one in 500 officers involved in the shooting of a citizen faces criminal charges, and jury convictions are even more rare. Using Denver as an example, the report says that over the past 40 years, that prosecutors filed criminal charges in three officer-involved shootings. Two of the shootings resulted in indictments and acquittals. The third shooting involved a drunken off-duty officer who eventually pleaded guilty to assault.
The addendum adds that officers are often subject to civil and administrative punishment in shootings. However, in Cleveland, the U.S. Department of Justice found in its exhaustive examination of use-of-force issues within the department that there are serious problems with how the department carries out its internal investigations.
A message left for Sims Monday afternoon was not immediately returned.
As both a judge and as a prosecutor, McGinty has not shied away from criticizing the Cleveland police department. His tenure as a judge saw him often accuse police of presenting sloppy evidence and shoddy cases. He also chose to prosecute officer Michael Brelo for his involvement in a chase through downtown Cleveland and East Cleveland that ended in the shooting death of an unarmed couple. Brelo was acquitted.
But community activists were critical of McGinty for asking Sims and retired FBI agent Kimberly Crawford to investigate the Tamir case. They expressed sadness but a lack of surprise that a prosecutor and a former FBI agent would issue reports that appear to favor the officers in the Tamir shooting.
“They’re shooting irregularly, just like they did with the [Michael] Brelo decision,” said Brenda Bickerstaff, sister of Craig Bickerstaff, who was killed by Cleveland police in 2002, and an aunt of Ralkina Jones, who died while in Cleveland Heights police custody on July 26. “The prosecutor’s office should be ashamed of themselves.”
ACLU of Ohio Executive Director Christine Link said that reports like the two released Saturday only bolster the public perception that prosecutors and police protect one another.
The analysis of the outcome is always done by people in law enforcement,” she said. “If you look at the credentials of (Crawford and Sims), they’re not community activists. They’re not people who experience police work from the receiving end. They’re law enforcement officials.
“Not to oversimplify, but you’ve seen ‘Law and Order,’ The police and prosecutors are on the same side. There’s this idea that they come to the work with no bias. Really? We have to admit that we all come to our work with bias.”
McGinty promised that the reports released Saturday are the first of several his office intends to present to the public. Both Crawford’s and Sims’ respective reports make no consideration as to whether the officers violated Ohio laws or made tactical mistakes or broke with department policy in the moments leading up to the shooting.
“(These reports) pointed out that this is not the end, that this is only the beginning,” Link said. “If government has the will to do something, there are other steps we can take.”
McGinty responded to the criticisms to the release of the reports in a statement emailed Monday night.
“Any suggestion that this office is protecting police is baseless and soundly rebutted when our record of prosecutions against police is reviewed,” McGinty wrote. “Perhaps some of these community activists are outcome oriented and have understandably had their emotions regarding the absolutely tragic death of a child to influence their position.”