Barely Legally

Confessions of a Moot Court Bailiff

Shared Irresponsibility

Cleveland Police Officer Michael Brelo fired forty-nine bullets at a pair of unarmed people in a car at the end of a high-speed car chase. The two eluded more than a hundred police officers during a twenty minute car chase, which is impressive: they were both blackout drunk and under the influence of marijuana and other drugs. I previously wrote about the ridiculous way the Cleveland Police department handled this chase, and how unbelievably poorly-trained and unprofessional the officers involved seem to be.

Officer Brelo is a special kind of awful, though. He fired his gun more than anyone else. He emptied his gun’s magazine three separate times. The last time was after everyone else around him had stopped shooting; he climbed on the hood of his victims’ car and fired 15 shots through the windshield into people the police had already shot at nearly 120 times.

Most police officers who kill unarmed civilians are never charged with a crime. Brelo was charged with Voluntary Manslaughter, which is because Involuntary Manslaughter in Ohio is reserved for what we in New York call Felony Murder: the unintentional or accidental death of someone during the commission of a felony. If you and a buddy swipe some guy’s wallet, and while your victim is chasing you, he has a heart attack or gets hit by a car or dies somehow, you and your buddy are each getting charged with grand larceny and felony murder.

So the fact that Brelo was charged with anything was surprising. What happened next … eh, not so much.

not guilty

Brelo was acquitted of the charges against him on Saturday. He had a bench trial, which means that a judge, not a jury, decided his innocence. Judges write nice opinions in which they explain their reasoning, and you can read Judge John P. O’Donnell’s opinion right here.

So, let’s go over this. On Page 9, Judge O’Donnell begins discussing the elements of Voluntary Manslaughter. He begins by noting that the prosecution didn’t really discuss three out of the four elements of the crime, and “scant evidence was proffered that was obviously intended to prove them.” Spoiler alert! He then recites the case law that interprets the first element of the crime, finding that Brelo was acting in a sudden passion or fit of rage. Judge O’Donnell likewise finds that Brelo knew that shooting fifteen times from the hood of a car would probably cause the deaths of his victims. That’s two out of four elements.

Sidebar: the mathematically-inclined will probably have noted that, as the victims were shot 24 and 23 times, even if each of Brelo’s gunshots struck the victims, they’d have already been shot a combined 32 times before he started firing. They were likely dead by the time he shot them. However, the fact that your victim was dead before you tried to kill them is not a defense to murder. Usually.

sharing is caring

Judge O’Donnell finds that, because there were so many other police officers shooting at the (unarmed, drunk, and stoned) victims, the court can’t be certain beyond a reasonable doubt that Brelo fired the shot that killed either of them. Actually causing the death of someone is obviously one of the elements of Voluntary Manslaughter.

So because Officer Brelo brought his idiot friends to the gunfight (again, with unarmed people), you can’t find him guilty? What happened to factual impossibility not being a defense? It might be unfair that he was the only one charged out of all the other idiots, but he was the special idiot that stood on the hood of a car shooting into it after the gunfight with unarmed people ended. Hell, charge the rest of the cops for turning a police chase into an execution. But why should Brelo walk just because everyone else was also shooting?

Judge O’Donnell discusses this quirk in a footnote. He cites Justice Scalia, in an opinion where he notes that in a baseball game, hitting a leadoff home run in a game that your team wins 1-0 means that you won the game for your team. Scalia goes on to point out that hitting a leadoff home run in a game that your team wins 5-2 doesn’t mean you won the game for your team, because 4 other runs were scored. No one gets credit for the win! (Although, in a 5-2 ice hockey game, the player who scored the third goal for the winning team is credited with the game-winning goal. Baseball’s recordkeeping deficiencies are its own problem.)

But okay. Fine. I’ll bite. Guess what, your honors? The guy who hits the home run in the second game still gets paid. He still gets his bonus for hitting a home run. He still has to run the bases, because that’s what happens when you hit a home run, whether or not the game was already out of reach. It still goes on the scoreboard. The home run still counts. Scroll back up to the part where I said that the fact that your victim is already dead isn’t a defense. Being mistaken about the score of the game doesn’t change the value of your home run.

Judge O’Donnell, after quoting Scalia’s handwaving, rolls his own. You see, he notes that the legal concept of joint and several liability doesn’t extend to criminal activity. That’s it. He just says that and moves on.

wait hold on

This is the part where you furrow your brow, scroll back up again to the part where I explained Felony Murder in a single sentence, and wonder if they don’t have it in Ohio or something. Then you remember that the sentence before that, I mentioned that they call it Involuntary Manslaughter in Ohio. Sure, it’s not technically “several” liability, because you can’t charge one guy twice for the same murder if his accomplice skips town. But Officer Brelo isn’t on trial for all the manslaughters all his colleagues committed. He’s on trial for his actions alone.

Before moving on from this discussion of what is arguably the crux of the trial in a damn footnote, Judge O’Donnell mentions that he’s comfortable that this opinion will have no consequences:

Nor is it realistic to think that my conclusion will incentivize a group of police officers to fire as many bullets from as many officers as possibly at a suspect in the hopes of obscuring the ultimate cause of the suspect’s death. The events of November 29, 2012 are sui generis and not likely to recur.

Look, I’m just going to throw out that in my city alone, guys like Amadou Diallo and Sean Bell can get shot by a group of cops who walk away as free men. Cops can already say “hey, prove that I was the guy who killed him.” Again, contrast this with what happens if a regular person commits a felony and anyone (victim, bystander, accomplice, etc.) dies. Every single person committing that crime gets charged with felony murder. That doesn’t seem fair to me.

So no, Judge O’Donnell’s probably won’t incentivize this behavior among police officers any more than it already is.

working with idiots

Judge O’Donnell continues onto his assessment of the reasonableness of Officer Brelo’s actions. Given the fact that twelve other police officers were shooting and yelling “shots fired!”, O’Donnell finds that Brelo was justified in using deadly force, because he perceived an imminent threat of death or great bodily harm to himself and other officers.

Of course, the fact that those other officers were the ones creating that imminent threat of death or great bodily harm is a bit outside the scope of Judge O’Donnell’s opinion.

Nonetheless, he’s probably right. Brelo shouldn’t be responsible for the idiots that he works with, who recklessly defied orders to participate in the police chase in the first place. Before negligently pumping more than a hundred bullets into the car of some unarmed drunk folks.

The real fight during the trial was over the 15 shots Brelo fired from the hood of his victims’ car. Judge O’Donnell thinks that it’s irrelevant whether Brelo fired these shots from behind the relative safety of his patrol car, or whether he jumped onto the hood of the victims’ car to do so. Finding that every perception of threat which Brelo had was reasonable, O’Donnell finds that Brelo’s action to stop those threats was unreasonable. But Voluntary Manslaughter is about whether the assailant thought the threat reasonably required force, not whether the assailant dealt with the threat in a reasonable manner.

In other words, Officer Michael Brelo is a loose cannon. But he got results. Thanks to the idiots who work with him, he won’t go to jail for committing Voluntary Manslaughter.

Happy Memorial Day, everybody.