Barely Legally

Confessions of a Moot Court Bailiff

Forty-Nine Bullets

Update: The verdict is out.

In every state, police officers get a lot more leeway than ordinary members of the public when it comes to the use of deadly force. For an ordinary person, self-defense laws come with (or used to) certain caveats. At times, it can feel like it’s impossible for a police officer to be charged with a crime for shooting people who turn out to be unarmed.

Well, here’s how badly an officer has to screw up to get charged. It comes from Cleveland, where the grand jury’s still out on whether or not shooting a twelve year old boy holding a toy gun gets you charged with a crime. But! This guy; he actually got charged.

We’ll start with a car chase, because in media res is a powerful literary device, and Barely Legally is nothing if not a platform for powerful literature. During the climax of a wildly unprofessional chase involving more than a third of all the police officers in the city of Cleveland, the police engaged in a shootout with two suspects. We’ll get to the shootout in a bit, after we talk about the hardened criminal masterminds who orchestrated this chase.

Ah, just kidding. The driver had a blood-alcohol level of 0.31, at which the CDC and a bunch of colleges say people are at risk of fatal alcohol poisoning. It’s also well north of the level at which people black out and suffer amnesia. Also, the guy had marijuana in his system, so of course this car chase was very brief, because he could probably barely stand up.

Ah, just kidding again. The chase lasted for a whopping 22 minutes. I’m surprised a guy that drunk could sit up for that long, let alone elude the police. But it would make sense if police backed off and took a passive approach to limit the risk to bystanders.

…You know where I’m going with this. The police didn’t back off. There were a total of 62 police cars and 90 police officers involved in the chase. (Sidebar: there were a whopping three cars actually authorized to participate by the Cleveland Police Department. In the weeks after the chase, 63 officers were suspended, presumably for being loose cannons.) How on earth does a guy that drunk get away from that many cops for that long? The mind boggles.

Wait it gets worse

Whatever. So the police finally corner the car with this insanely drunk guy and his lady friend. They manhandle the two drunken idiots out of the car, into jail, and we all go home safe, right? End of story, Dominic, let’s all have hot chocolate.

Nope! Look, I told you there was a shootout.

Actually, shootout might be a strong word, as it implies that both sides have guns. The drunk driver and his friend were unarmed. Despite this trivial detail, 13 police officers fired 137 shots in two distinct waves of gunfire. The first wave lasted nearly nine seconds, and the second lasted five seconds.

Buzzfeed’s Mike Hayes describes the second wave:

During the second wave of gunfire, [Cleveland Police Officer Michael Brelo, a] five-year veteran of the department jumped on the hood of the Malibu, trained his Glock on the suspects, and sent a hail of bullets into the windshield.

Of the 137 bullets fired by cops in the parking lot that night, 49 of them came from Brelo’s gun. That second, five-second wave that investigators wrote about came solely from his Glock 17.

Hayes’s report erroneously notes that the police investigation concluded that the first wave of gunfire lasted seventeen seconds; that’s the time from very first shot to very last. That’s on page 47. The report itself has all sorts of jaw-dropping details. For example, a forensic reconstruction of the angle of each gunshot that hit the car:

Idiots.

You’ll notice that the word “crossfire” shows up in the report an awful lot. The Ohio Attorney General read it and declared “it is, quite frankly, a miracle that no law enforcement officer was killed. Clearly, officers misinterpreted the facts. They failed to follow established rules.” He didn’t add “and they were shooting at each other like idiots,” probably because that was implied in his original remarks.

Also, to be clear, the investigators’ report doesn’t claim that Brelo fired all 49 shots while standing on hood of the suspects’ car. Rather, they found that he shot his gun 49 times during the course of the shootout. He emptied his gun through the windshield of his own car into the suspects’ car. Then he reloads, exits his car, and shoots into the suspects’ car until he runs out of ammunition again. Then he reloads, jumps onto the hood of the suspects’ car, and empties his gun (for a third time) through the windshield.

Manslaughter

I said at the beginning that the police get a lot of leeway when they use deadly force when defending themselves. But, uh, at no point during the shootout were these two suspects, drunk and stoned and high as they were, firing at the police. They had no weapons of any sort. They didn’t pull over, which is a really stupid idea, but holy cow did they not deserve a firing squad. That’s not how police chases are supposed to go.

There were over a hundred gunshots. The driver, Timothy Russell, was shot 23 times. His passenger, Malissa Williams, was shot 24 times. If you haven’t guessed, they’re both dead. Their families have settled civil lawsuits with the city of Cleveland for $1.5 million.

Officer Brelo, he of the fifty gunshots and standing on car hoods shooting through a windshield at unarmed drunks who’ve already been shot a dozen times each, is the only one facing criminal charges. He fired more shots than any other officer, and he started shooting again after everyone had stopped. From the hood of his victims’ car.

However, he hasn’t been charged with murder. Instead, Brelo is on trial for two counts of voluntary manslaughter, a felony which carries a penalty of three to eleven years.

In Ohio, Voluntary Manslaughter is distinguished from Murder in a few specific ways.

  1. Voluntary Manslaughter requires the killer be under the influence of a sudden passion or fit of rage.
  2. That passion/rage must have been caused by the victim’s serious provocation.
  3. The provocation must be reasonably sufficient to incite the use of deadly force.
  4. The defendant must have knowingly caused the victim’s death.

Knowingly is one of the four culpable mental states. In Ohio,

A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature.

Without researching the case law around these terms, I can only make an uneducated guess, but this seems like a good fit. I assume that “fearing for your life” counts as a sudden passion.

The Other Crimes

How is that different from other statutes against homicide in Ohio? Well, Murder is simply having “purposely caused the death of another.” I think that jumping on the hood of a car and shooting through the windshield is pretty damn purposeful, but proving that a police officer intended to murder someone is pretty tough. He didn’t have malice aforethought. He didn’t plot the demise of anyone and leave incriminating searches in his Google history. I can see intent, but I can see why you wouldn’t want to try to prove it beyond a reasonable doubt.

So really, I understand why the prosecutor is going for Voluntary Manslaughter. He essentially only has to prove that Brelo was aware that shooting at people seventeen times would probably kill them, and that he was in a highly emotional state. It’s a much lower bar to hurdle than “formed criminal intent to murder.”

It’s worth noting that Involuntary Manslaughter in Ohio is reserved for when you kill someone during the commission of a crime. Brelo wasn’t committing a crime, so that’s right out.

And I wouldn’t have charged Brelo with Reckless Homicide either, because recklessness is “when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature.”

A police officer shooting at suspects doesn’t seem to me to be a particularly “unjustifiable risk,” but that’s a whole mess of Ohio case law that I’m not researching right now. They were in a car which he thought they were using to ram other police officers, and he thought they were shooting. Those are two immediate issues I’d raise if I were Brelo’s lawyer.

It’s Voluntary Manslaughter or nothing for Brelo, it seems. And today, the prosecution finished presenting its case. Brelo’s attorney immediately moved for the charges to be dismissed because the prosecution has failed to prove facts which would allow the judge to find Brelo guilty. Judge John O’Donnell will rule on Monday whether the defense has to even bother defending.

Regardless of what happens, Brelo has already faced more consequences for shooting unarmed people than the vast majority of police officers do. This case strikes me as particularly egregious, so I’m extremely interested to see which side of the line this falls on.