Charges rare for police who fire shots, all Clark cases ‘justifiable’

Officer-involved shootings have saved lives, law enforcement leaders say.

A Springfield News-Sun analysis found Southwest Ohio grand juries typically rule them justifiable and rarely charge officers following shootings.

In Clark County, all 12 of the officer-involved shootings since 2000 have been ruled justifiable, according to newspaper and law enforcement records. Two-thirds were fatal.

About 45 officer-involved shootings have occurred across the Springfield-Dayton region in the past decade. The subject shot by law enforcement was armed with a gun in 26 of those cases, well over half of them. In the cases where race was identified, 16 of those shot were black and 28 were white.

In some the police officers’ lives were at risk. Seven local law enforcement officers were wounded in those incidents and Clark County Sheriff’s Deputy Suzanne Hopper was killed in the New Year’s Day 2011 shootout that also wounded a German Twp. police officer and left shooter Michael Ferryman dead at the Enon Beach campground.

Others shot by law enforcement in Clark County have been armed with knives, a broomstick, a boiler poker, a Garden Weasel and a pellet gun. None have been completely unarmed.

John Crawford was holding an air rifle at a Beavercreek Walmart when officers responding to a 9-1-1 call shot and killed him on Aug. 5. That case will be presented to grand jury Sept. 22.

No agency is responsible for tracking how many people in Ohio are shot or killed by police, or how many cases are referred to a grand jury. There is also no requirement that officer-involved shootings be criminally reviewed at all.

The FBI tracks “justifiable homicides” committed by law enforcement officers, and tallied 426 in 2012 nationwide. Those numbers are self-reported and fall far short of being reliable. Only four jurisdictions listed a total of five police shootings in Ohio that year, and doesn’t include a fatal shooting in Springfield.

Hearings before grand juries common practice

All the Clark County shootings were presented to grand juries to determine if the officer involved committed any crimes and in each case the jury declined to charge them.

A grand jury indictment requires only probable cause that a crime was committed, not beyond a reasonable doubt, which would be the threshold in a criminal trial, noted Ric Simmons, a criminal law professor at the Ohio State University Moritz College of Law.

The law allows officers to fire if they deem it necessary to prevent someone from using deadly force against them or another member of the public, based on “the reasonable belief of the officer at the time,” he said.

Unlike a regular trial, where both sides argue guilt and innocence, in a grand jury the prosecutor presents facts and asks jurors to come to their own conclusion. This could give a prosecutor the ability to sway the jury by presenting or withholding facts, Simmons said.

“The reality is the prosecutor can pretty much control the grand jury,” he said.

Sometimes departments bring in help from the outside, either prosecutors from other counties or Ohio Attorney General Mike DeWine’s Bureau of Criminal Identification and Investigation, to lend transparency to the investigation.

“If I felt like there was a sense of impropriety or something just didn’t look right, feel right, that’s what I’d do. I’d bring somebody else in,” Springfield Police Chief Stephen P. Moody said.

When an officer struck and killed a pedestrian with his cruiser in May, Moody asked the Ohio State Highway Patrol to step in and investigate instead of his own traffic officers. The patrol determined that the man was drunk when he stepped into the path of the cruiser.

Hamilton County Assistant Prosecutor Mark Piepmeier, who will present the Crawford case to a grand jury, has handled several cases that resulted in officers being charged for their actions both on- and off-duty, according to DeWine, who appointed Piepmeier.

One of those cases was the shooting of unarmed 19-year-old Timothy Thomas by Cincinnati police officer Stephen Roach in 2001, which was followed by rioting in Cincinnati. A Hamilton County grand jury charged Roach with negligent homicide and obstructing official business, both misdemeanors. Hamilton County Judge Ralph E. Winkler acquitted Roach of the charges.

Since 2011 DeWine has presented five officer-involved shootings to grand juries. Three returned no charges against the officers and two are pending.

Officers’ actions judged on reasonableness

Officers are judged on whether they displayed objective reasonableness in responding to real or perceived aggression, Clark County Sheriff’s Capt. Eric Holmes said.

“Objective reasonableness deals with what the perception of a reasonable officer would be at the time of the incident,” he said. “It can’t be hindsight is 20/20. You have to put yourself in the position of the officer as he perceived it as the incident was occurring. That’s the only fair way to do it.”

During a 2000 incident in Springfield, police officers were confronted with a burglary suspect who’d broken into a home on Bahia Drive and refused to exit the basement, even after they deployed pepper spray. As they descended the staircase, police alleged Kenneth Mahorney, 41, began swinging a broomstick at them, striking at least one officer.

The basement was dark and the officers had information that Mahorney may have also had a sword, according to Moody.

“They’re taking all this information into account and trying to put it in context in an emotionally charged situation. And relying on their training,” Moody said.

Sgt. Douglas Radel, backed into a corner as the suspect alleged swung at him, fired four shots and wounded Mahorney in the arm.

Radel was found to have used force appropriately and Moody said it was in line with department use of force policy.

Holmes described the sheriff’s use of force policy as having changed over the years from a stair step or pyramid approach to a continuum.

“A lot of people thought you had to start at the very bottom and if that didn’t work you go to the next step and you’d go to the next step and the next step. That’s not the way response to aggression works,” Holmes said.

Any type of weapon used against a deputy, any attempt to disarm a deputy or any unarmed assault that threatens their life is grounds for a deputy to possibly use deadly force, according to the continuum.

“If I have someone over here who’s being passively resistant, I’m able to use an escort position or a take down technique in order to gain compliance. But if someone is actively assaulting an officer, they’re fighting, they’re kicking, they’re punching, they’re biting, then the officer’s allowed to used other methods,” Holmes said.

An officer being attacked with a knife is not going to try pepper spray first, he said, or pull out a baton to knock the knife away.

“You’re going to go to a firearm because that firearm is what’s going to protect you and keep that person at a distance,” he said.

Internal reviews

Cases aren’t necessarily over with a grand jury decision. Police departments conduct their own internal investigations and can discipline officers for not following policy.

Individuals who have been shot and their families can also sue. None of the Clark County cases have resulted in civil action.

Cincinnati attorney Al Gerhardstein has sued on behalf of more than 20 people shot by police. Most of the cases were settled, he said, and he argues that departments do little to review their policies and make adjustments after shootings.

“Generally it’s a very poor administrative review of the shooting. Often times the department will let BCI do the investigation. BCI very clearly explains to the department that they are doing a criminal investigation. Then the department gets back a report that there’s no crime or there’s no (grand jury indictment, so) the department does nothing.”

Springfield Police take a look at their tactics and policies after officer-involved shootings to make improvements, according to Moody.

Split-second decision

The Crawford shooting matches a theme Gerhardstein says runs through his cases: police over-reacting to someone holding a weapon.

Officers responding to the Beavercreek Walmart on Aug. 5 were relayed messages from a 9-1-1 caller that Crawford apparently had a rifle and was attempting to load it. After he was gunned down they learned it was an air rifle.

Pellet guns and air rifles look very similar to the real thing, Moody said, and an officer confronted with one has a split second to make a decision.

“A lot of the handguns being sold today look plastic,” he said. “It’s a problem for society as a whole and it’s certainly a problem for us.”

Police are often working off the assumptions of the public who call 9-1-1, Moody said, and reasonably believe someone to have a real weapon.

When Springfield Police Officers James McCutcheon and Deric Nichols spotted a vehicle parked on East Liberty Street on the evening of Jan. 31, 2011, they knew the car and the man behind the wheel matched descriptions from two area bank robberies earlier in the day.

They knew that the man who attempted to rob the Wright-Patterson Credit Union in Urbana had indicated he had a weapon and a similarly described man who robbed the Security National Bank in Kroger on Derr Road had displayed a firearm to employees.

And after John Taulbee Jr. led them on a short, slow-speed pursuit to the lot of the Soap Box Laundry, they both saw him exit his vehicle and point a pistol at Nichols.

But neither knew until after they opened fire, fatally striking Taulbee with three bullets, that the weapon was a Crossman pellet gun.

A Clark County grand jury found that the pair was reasonable and justified in their use of deadly force because Taulbee’s actions “presented the imminent threat of serious physical harm or death toward the officers.”

But even if a gun is real, Gerhardstein said, Ohio law allows people to openly carry firearms.

“We have a society that promotes gun ownership. So police must be trained to sort out threatening gun possession and non-threatening gun possession,” he said. “If we’re going to let citizens own, possess and carry guns then we have to train officers to approach them so they don’t escalate situations … and not treat our citizens like they are combatants in a war zone.”

Local law enforcement leaders said their officers rely on their extensive training daily to de-escalate situations, preventing officer-involved shootings from occurring more frequently than they do.

“For us, in the course of an eight-hour day it’s not uncommon for a deputy to have their weapon out,” Clark County Sheriff Gene Kelly said. “But they’re going to do everything in their power to not have to use deadly force. That’s the way they’ve been trained.”

When Springfield Police Officer Douglas Pergram was shot during a traffic stop in 2000, responding officers were able to locate suspect Thomas Lemaster and take him into custody without any more shots being fired, Moody said.

“The discipline that it takes to do this job, the character it takes to do this job, from my perspective is sometimes brushed aside because of the way things are portrayed,” he said.

In May 2000, Dayton Police Officer Mary Beall decided not to fire at Raham Twitty, and paid with her life. Beall and Officer Shawn Smiley responded to a call that a man had fired a gun at his girlfriend. Twitty was armed and Smiley ordered him at gunpoint to drop his weapon. Beall, in an effort to negotiate with Twitty, put down her service revolver.

Twitty put his gun’s barrel to her neck and fired. Smiley fired back, wounding Twitty.

Beall died from an infection related to the wound in 2002. Twitty died in prison of natural causes in 2010.

Others saved by officers’ shots

Several of the Clark County shootings have involved domestic violence situations in which the officer’s actions were determined to be justified in not only defending themselves, but in preventing injury or death to the other party involved.

Craig Frye Sr., 41, was involved in a domestic dispute on Aug. 24, 2012, with his estranged wife and her new boyfriend on Maiden Lane in Springfield.

When Officer Greg Ivory pulled onto the scene he saw Frye had a gun pointed at the pair.

Frye pointed the 9mm semi-automatic handgun at Ivory as the officer exited his cruiser and was given an order to drop it. Instead, he fired a shot at Ivory, beginning a gun fight that lasted only 30-seconds but resulted in Ivory being shot in the stomach at the bottom of his bullet-proof vest and Frye being shot multiple times, according to police reports.

Frye died at Springfield Regional Medical Center. Ivory survived his injury.

On Sept. 22, 2003, Clark County Sheriff’s Deputy Rick Brumfield had just returned from National Guard duty in Iraq when he was called to a domestic assault in Medway.

The woman who called 9-1-1 said her husband was intoxicated and had just severely injured her arm with a butcher knife.

“On the 9-1-1 she said she thought he cut her arm off,” Kelly said.

While she barricaded herself in the bathroom and called for help, Justin Martin retrieved a shot gun.

When the 9-1-1 dispatcher told the woman that a deputy was outside she ran from the bathroom and was followed outside by Martin, who allegedly leveled the gun at her.

Brumfield yelled at Martin, who turned and allegedly pointed the gun in his direction. Brumfield fired, hitting Martin three times in the torso. All three wounds were superficial and Martin was in jail by noon the next day.

“The grand jury found that Deputy Brumfield’s actions were justified to protect himself and Mrs. Martin,” Clark County Prosecutor Andy Wilson said.

Kelly said Brumfield’s quick thinking saved a woman’s life.

Justin Martin was convicted of felonious assault and intimidation and sentenced to four years in prison.

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