Lawyers representing the family of a preteen boy fatally shot by police expressed outrage Monday after the city of Cleveland said Tamir Rice’s death at the hands of an officer, who mistook the airsoft pellet gun he was holding for a real firearm, was caused by the 12-year-old’s “failure … to exercise due care to avoid injury" — words that later prompted an apology from the city's mayor.
The city had made the remarks Friday in a court filing, responding to a federal lawsuit filed by Tamir’s family accusing Officers Frank Garmback and Timothy Loehmann of acting recklessly and failing to provide first aid (PDF) during the Nov. 22 incident or attempt. The suit also names the city of Cleveland as a defendant, and says police failed to attempt to resuscitate Tamir, who died the following day.
"[The] plaintiffs’ decedent’s injuries, losses, and damages complained of, were directly and proximately caused by the acts of plaintiffs’ decedent, not this defendant," the city said in its response to the Rice family's complaint (PDF).
Walter Madison, one of the Rice family lawyers, called the city's defense “unbelievable.”
“What they said is incredulous at best," Madison told The Washington Post on Monday. "There are a number of things that we in society don't allow 12-year-olds to do. We don't allow them to vote, we don’t allow them to drink. In court we don't try them as adults. They don't have the capacity to understand the consequences of their actions."
Cleveland Mayor Frank Jackson apologized to the Rice family and the city at a news conference on Monday afternoon, when he said that "in an attempt to protect all of our defenses, we used words and we phrased things in such a way that was very insensitive."
Jackson also said that the city's law department would be filing an amended response to the Rice family's lawsuit that "will deal with the insensitivity of the language," but also "preserve the [city's] defense."
Cleveland police said that Garmback and Loehmann were responding to a 911 call about an individual who possibly was carrying a gun at a city playground. They said Tamir did not respond to commands from the officers, as they approached in their police cruiser, to show them his hands before Loehmann opened fire.
Surveillance footage released by police showed Tamir, who had been holding an airsoft gun that shoots nonlethal plastic pellets, being shot less than two seconds after the officers' car stopped near him.
In December, the Department of Justice completed a civil rights investigation into the practices of the Cleveland Police Department, unrelated to Tamir’s case. The DoJ probe concluded that the Cleveland Police Department "engages in a pattern or practice of the use of excessive force in violation of the Fourth Amendment of the United States Constitution."
"We have determined that structural and systemic deficiencies and practices — including insufficient accountability, inadequate training, ineffective policies, and inadequate engagement with the community — contribute to the use of unreasonable force," the DoJ report (PDF) said.
Meanwhile, the shooting of Rice continues to be investigated by the Cuyahoga County Sheriff's Department, to whom the Cleveland Police Department handed over its investigation in January. At the time, Cleveland Mayor Jackson said the handover was made "to ensure that transparency and an extra layer of separation and impartiality were established."
Both officers remain assigned to "restricted duty" in which they have no contact with the public as part of their police-related activities, the Cleveland Police Department confirmed Monday.