Wide variation in how officer-involved shootings investigated in Ohio

Ohio Attorney General is handling the investigation into the shooting of New Carlisle photographer by a Clark County deputy.

A Clark County deputy realized within seconds of shooting a New Carlisle news photographer last week that he had taken aim at an unarmed man he knew after mistaking his camera for a gun, body camera video of the incident shows.

Former local law enforcement officials and criminal law experts declined to discuss the specifics of the Sept. 4 shooting in New Carlisle, but they said the legal standard that determines whether a shooting is justified has been established for at least two decades based on a pair of U.S. Supreme Court cases.

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Several high-profile shootings in recent years — both nationwide and in Southwest Ohio — have led to more debate about how police-involved shootings are investigated and prosecuted.

Nationally officers make the split-second decision to use lethal force more than once per day on average, according to FBI statistics and area experts. The FBI doesn’t track when an officer fired a weapon but no one was killed, such as in New Carlisle.

“Up until two or three years ago no one was paying attention to these cases,” said Philip Stinson, an associate professor of criminal justice at Bowling Green State University. “We now know that on average, between 900 and 1,000 times a year in this country on-duty police officers shoot and kill someone. We have absolutely no idea — I don’t know, the FBI doesn’t know, the Justice Department doesn’t know — how many on-duty shootings there are where people aren’t killed. We would presume there are thousands and we just don’t have any way of knowing that each year because there’s no mechanism by which the data is collected and aggregated.”

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Clark County Deputy Jacob Shaw couldn’t be reached for comment and the union that represents him declined to comment. Sheriff Deb Burchett didn’t return calls for comment and earlier referred all questions to the Ohio Attorney General’s Office, which is investigating the shooting.

The photographer, Andy Grimm, has declined to comment but told Shaw after he was shot that he knew it was a mistake and didn’t want the deputy to lose his job, according to the body camera video obtained by the Springfield News-Sun through a public records request.

Law enforcement agencies can also conduct their own internal investigations and potentially discipline officers if they determine their own use of force policies were violated. Ben Hunt, human resource and finance director for the Clark County Sheriff’s Office, said an internal investigation will begin once the state concludes their review of the case.

Experts said it’s recommended an independent agency like the attorney general investigate officer-involved shooting but there’s no requirement for that. There’s wide variation in how cases are handled in Ohio and across the U.S.

In an ideal situation, an officer’s decision on whether to pull the trigger is nearly instinctive, based on extensive training rather than thinking through a series of potential decisions, said Patrick Oliver, a Cedarville University associate professor of criminal justice and a former police chief in Fairborn and Cleveland.

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Situations that involve use of force often demand an immediate response by an officer who feels their life is in danger, he said.

One reason few officers involved in a shooting are charged or convicted is there’s a high burden of proof to show negligence, Oliver said. Juries also are often reluctant to second-guess an officer’s decision regarding whether they’re in a life-threatening situation.

“Typically the benefit of the doubt goes to the law enforcement officer just like the benefit of the doubt goes to the defendant,” Oliver said. “It should be because these are tense, rapidly evolving situations that require quick decisions. Is it difficult to charge and convict a police officer? Yes. And it should be. You can also say it should be difficult to charge and convict a citizen.”

Cincinnati attorney Al Gerhardstein has sued on behalf of more than 20 people shot by police. He believes more officers involved in shootings should have faced criminal prosecutions.

“We need to look at this very carefully because if we aren’t holding officers who should be accountable under criminal law, the public loses trust,” Gerhardstein said.

Established guidelines

The guidelines used to determine whether using lethal force is justified were established in two U.S. Supreme Court cases in the 1980s, Stinson said.

In 1985, Tennessee v. Garner determined an officer is justified using deadly force based on factors that include the severity of the crime being investigated, whether an officer reasonably believed a suspect posed an imminent threat and whether the suspect is actively resisting arrest or trying to flee.

Four years later, Graham v. Connor further established reviewing an officer’s use of deadly force should be based on whether a reasonable officer would have made a similar decision, based on the facts available to the officer at the time of the shooting.

In Clark County, Shaw’s body camera footage appears to show he stopped a vehicle for speeding in New Carlisle. A short time later, he returns to his cruiser and relays the man’s license and insurance information to dispatchers. It’s not clear what Shaw heard or saw from that point on.

But minutes later, the video appears to show Shaw suddenly open his car door and fire two quick shots with no apparent verbal warning. Shaw then recognizes the man he shot as Andy Grimm, the New Carlisle News photographer. Shaw calls for an ambulance while he applies pressure to Grimm’s wound, according to the recording.

“I need people here now!” Shaw says on the recording. “… Andy, I thought it was a freaking gun, dude!”

In the video, Grimm says he tried to alert Shaw of his presence before the shooting, waving and flashing his lights at him.

Investigators who review Shaw’s case will use guidelines from the Supreme Court to determine whether to present the case to a grand jury, Stinson said.

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Shaw is currently on paid administrative leave while the investigation continues.

One of the keys will be what Shaw saw or heard that led him to believe it was appropriate to fire his weapon, Stinson said. Without more facts, the professor said the body cam video creates far more questions than it answers.

“I certainly have enough questions to suggest that that was a shooting that would not have been legally justified given the legal standard the U.S. Supreme Court has set,” Stinson said of the body camera footage. “It leaves me with many questions about the officer’s state of mind, his background, his training. Let’s take it at face value, his mind obviously thought there was a threat. But on an objective standard of reasonableness I question whether there was a threat. But I’m not sitting in a police cruiser in the dark though, so I’m very reluctant to second-guess these things.”

What they knew at the time

Law enforcement has been working on a national use of force data collection program since early 2015.

Then on July 01, the FBI launched the National Use-of-Force Data Collection pilot program. This pilot program will collect use of force incidents from law enforcement around the country which involve death or serious bodily injury of a person, or the discharge of a firearm at or in the direction of a person.

This data will be voluntarily submitted by law enforcement agencies, as are all Uniform Crime Reporting Program data collections. The FBI has received support and feedback from law enforcement partners through the process of building this pilot program.

The guidelines in the Supreme Court cases on officer-involved shootings are somewhat vague but that’s not unusual in criminal law, said Ric Simmons, a criminal law professor at the Ohio State University Moritz College of Law.

“A jury has to put themselves in that position and say, ‘Was it reasonable what they did at this time?’” Simmons said. ‘It would be very hard to make any more specific rules given the infinite number of factors that might exist in any one situation. We have to go with those broader standards to let a jury decide for themselves whether it’s reasonable.”

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The guidelines say officers should be judged on what they knew when they pulled the trigger, Simmons said, not on what was discovered later. That often makes those cases more difficult to prosecute, he said, because juries are reluctant to second-guess an officer’s split-second decision while on duty.

That can also make prosecutors and grand juries more reluctant to move forward with charges.

“In police officer shootings specifically, we see a lot of times juries giving the police officers maybe too much deference in using that broad standard,” Simmons said.

At the same time, Simmons said it’s not fair to judge officers based on information gained in hindsight.

There has been more discussion in recent years on how officer-involved shootings are investigated and prosecuted, particularly after the fatal shootings of John Crawford II in a Walmart in Beavercreek or 12-year-old Tamir Rice in Cleveland that have garnered national attention. Simmons sat on a grand jury task force last year that proposed all police shooting cases should automatically be investigated by Ohio Attorney General’s Office.

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“To me that’s an easy fix if there’s a political will to do it,” Simmons said.

Another option is is to provide better and more training for officers to ensure they’re better able to respond to incidents, Simmons said.

Ohio Attorney General Mike DeWine’s office developed an advisory group in 2015 charged with examining how Ohio trains its law enforcement officers and with making suggestions for improvement.

In the meantime, Oliver, the Cedarville professor, said it’s important to let the investigation more forward before making any judgments for or against the officer involved.

“People shouldn’t rush to judgment,” Oliver said. “Trust the investigative process, trust the criminal justice system and let the Ohio Bureau of Criminal Investigation do their work and see how it results.”

Staying with the story

The Springfield News-Sun first broke the news of a deputy-involved shooting of a new photographer in New Carlisle online on Monday night and has closely tracked developments in the case, including filing public records requests and talking to experts about the legal standards.

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