Race, Rice, and the RKBA, as 2015 Goes Out with an Echo of a Bang as Well as a Whimper




It's like police see "being a threat" as a part of him.

It’s like police see “being a threat” as an essential part of him.

2015 is going out with the echo of a bang: the shot that killed 12-year-old Tamir Rice last year in Cleveland, for which it now appears no one will be indicted.  And some people are asking a good question: why is the NRA silent on this?  But that discussion is down at the end.

1. The Basics

Before we get into the details, let’s paint Tamir Rice’s “offense” in the worst possible light.

  • Yes, he was only 12 years old — but he was already 5’7″ and 180 pounds.
  • Yes, he had only pulled out a toy gun on a playground — but the orange tip intended to show the world that it was a toy was missing.
  • Yes, the cop who shot him did so within one second after leaving his vehicle — but he says that he was afraid for his life.
  • Yes, Ohio is an “open carry” state — but … actually, I’m still not sure what the answer is to that one.  I’m afraid that the real answer is “but he was Black” — and that many people don’t care that that’s a very wrong answer if you believe that the Second Amendment conveys an individual right to keep and bear arms.
  • Yes, the trainee who shot him and the cop who supervised the trainee had their case sent to the grand jury — but they refused to bring charges!

OK, now that that’s out of the way, let’s look at the video — especially the part a few seconds either side of the 1:06 mark:

If you start at the beginning, you’ll see that:

  • Tamir was fooling around near the curb with a pellet gun (about 11 minutes before he was shot) — enough, perhaps, for some worried observer to call the police
  • But he was also acting in a lot of “silly kid playing in the snow and slush” ways, suggesting a less than Dillingeresque attitude.
  • When the police showed up, he was sitting at a bench in front of a picnic table, facing the street, in a kiosk or gazebo.
  • Judging from the speed by which the police car came up onto the lawn, right next to the gazebo, they had already decided that they were responding to a serious threat
  • Based on their unusual behavior Tamir was probably aware that they were coming for him and he stood up and walked towards where the car would be — just like killers normally do.
  • The police report allows that he was apparently pulling out the gun from his waist to show the cops that it was a toy; he was not aiming it at them.
  • Within a second of slamming to a stop, the trainee was out the door and had shot Tamir, who drops out of sight behind the car.  (He would die in the hospital the next day.)

Now let’s put some weights on the other side of the balance.

  • He had a right to be in the park.
  • If he was an adult, he had a right to be carrying a gun — that’s what “open carry” allows.
  • He was not interacting with anyone — or even moving at all — as the police car ran u on the park’s snowy lawn.
  • If the police felt that he posed a danger to them, the could have parked out on the curb and used a loudspeaker to instruct him what to do.  “Hands in the air” and “drop your weapon” might have been good choices here.
  • If they had to be on the lawn, the police could have stopped short of the kiosk — in which case they would have not needed to react so suddenly.
  • The choices that they made were only justifiable if they placed absolutely no value on keeping the “suspect” alive if (as turned out to be the case) he was not guilty of anything.

What did they do it?  Black male, probably high school or young adult age, with a gun.  And they were scared.

It’s all right for a person to be scared around a gun.  But it’s not all right to act on it so easily if you’re a cop.  It’s not right in two ways: (1) if you don’t want to see innocents getting killed, and (2) if you believe that the Second Amendment and Open Carry laws apply to individuals.

2. A Modestly Radical Proposal

Many commenters have offered counterexamples that put the decision to shoot Tamir Rice in high relief:

  • Would this happen if he were White?
  • Would it happened if he were female?
  • Would it happened if he were old?
  • Would it happen if he were wearing a red Pendleton shirt with an orange vest?

Those are good questions – among other things they point to the inequality with which gun rights and the rights of suspects are enforced — but I have a slightly different one:

  • Would they have done this if they had recognized Tamir Rice as their own nephew — or son?

Bear in mind, nephews and sons of police officers are perfectly capable of doing some rotten and destructive things — and would not necessarily spare their police officer uncles or fathers in a “think fast!” situation like this — so it’s not like that impossible.  But my guess is that if a police officer knew that it was their nephew or son — or the police chief’s nephew or son — they would find a way to avoid the use of deadly force there.  At least to avoid the use of deadline force in the first second of a confrontation.

I think that they’d do so even though it might add a little to the degree of danger that they face on the job.  So I don’t think that the question is whether they can treat suspects (or in this case “suspects”) with greater care and consideration, but whether they will.

So I want to make a bold and radical suggestion: police officers approaching youth should be expected to give the same sort of consideration to the strangers — especially the youth – they meet on the street that they would give to their own kin.  That doesn’t mean not arresting them; I would hope that police officers would be willing to see their own kin be arrested if it keeps them off of a violent and criminal path.  (Maybe I’m being naive there, but isn’t this how the system is supposed to work?)  But, if they were dealing with their own kin, I would expect that authors would be very careful to avoid doing extreme and especially irreversible harm — which are the cases that keep on making the news.

In a police officer can’t avoid treating a stranger the way that they would kin, then they need to be trained until they can do so before they are given live ammunition and the ability to interact with the public.  And they should be supervised to ensure that they do.

If a police officer won’t offer that sort of consideration, despite having that capability, then perhaps they shouldn’t be a police officer after all.  And whoever hires them should be held to enforcing that standard.

Will more police officers die under such a scenario?  Maybe no.  The argument against it is that fewer civilians should be on a hair trigger, hating the police for these now-commonly reported actions.  But maybe so.  That is part of the risk that they take.  I do not make this suggestion because I want to see even a single additional officer killed or wounded, but because — as the civilian version of our soldiers — risk is what they signed up for.  If a little more consideration, a little more desire not to inflict civilian casualties, saves civilian lives, then I think that we need to expect the police to shoulder the concomitant risk.  It should, at a minimum, not be more risky to be a Black or Latino resident of the U.S. than it is to be an armed police officer with the ability to use deadly force, even stupidly, and get away with it.

3. “Shall Not Be Infringed”

I’ve already set the stage to consider what may be an even more interesting question: the why isn’t the NRA up in arms about Tamar Rice being shot for, in essence, having an (apparent) gun in a park, while by himself and minding his own business, in an Open Carry state?

If the cops drove hauling ass up to a 55-year-old white man and shot him within one second of slamming to a halt and opening the door for having a weapon in an Open Carry state, would that be OK with the NRA?

I’m going to guess that the answer is “no.”  Indeed, if having a gun in public becomes an invitation for police to shoot someone preemptively, then “Open Carry” (which we don’t have in California, although some want it) would not be much of a right.  It would be like a right to assemble peaceably at the cost of having your head split open with a billy club — not that useful.  (Pretend for these purposes that the right to assemble becomes, for some, just about that.)

The Second Amendment, putting aside its history and its preamble, says that the right of the people to keep and bear arms “shall not be infringed.”  So this raises the question of: what constitutes “infringement” of that right?

One answer is to toss the 14th Amendment into the toilet and say that there are different rules for whites than for Blacks and Latinos.  Few will make such a constitutional argument.  But the idea of the rules really being the same for all people probably seems intolerable as well, because it invites the following sort of constitutional analysis:

We can determine how much a right may be constitutionally infringed by applying the standard imposed on the poorest and most despised segments of society onto everyone.  In other words: if Tamir Rice can’t do it, then YOU can’t do it either.  If a security guard can get away with killing a Black man taking a BB-gun to the counter without being arrested or punished, while two white men who actually shoot off a BB-gun at a store are allowed to walk free, then people of different races don’t have the same rights.  The treatment of people with the least de facto rights are the ones who set the standard of what “infringement” is allowed.

The NRA should absolutely hate that.  And if there were a chance in hell of that happening, they well might.  And the fact that people have not been speaking up in defense of Tamir Rice’s Second Amendment Rights in this situation suggests that they recognize fully well that he had fewer rights than a white kid of the same height and build in a “safer neighborhood” (i.e., less minority) would have — and so the deprivation of what the police thought were Tamir Rice’s gun rights does not affect the rights available to your average (i.e., white) NRA members.

That’s constitutionally noxious.  It has to stop.  What is “infringement” of a right for the white goose has to be the same as what is “infringement” for the black swan.

And with that, we say goodbye to 2015 and hello to what we can pretty much expect will not, in these respects, be a better year.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)