The findings of fact and conclusions of law on the justification for the Russell police killing in Cleveland after a police chase, published on Lexis on Friday. Interesting parallels to last SCOTUS term’s Plumhoff case. State v. Brelo, 2015 Ohio Misc. LEXIS 54 (Cuyahoga Co. May 23, 2015):
Introduction
In many American places people are angry with, mistrusting and fearful of the police. Citizens think the men and women sworn to protect and serve have violated that oath or never meant it in the first place. Some of these places are long familiar: New York City and Baltimore. Some were unfamiliar until incidents there laid bare the divide between the people and the police: Ferguson, Missouri and North Charleston, South Carolina. Probably not coincidentally these places are mostly African-American communities.
Cleveland, too, is one such place, as the reaction and attention to this case and other recent events has shown. Every week I pass a mound of stuffed animals left in memory of a 12-year-old many believe was murdered by a Cleveland police officer.
This animosity toward the police is fed not just by stories that attract TV watchers and internet clickers, but by police officers’ affronts — intended or not — to honest people treated as criminals, by unnecessarily brutal treatment of arrested suspects, by daily slights and disrespect — real and imagined — and by the isolation of the police from the people they serve. These realities in some neighborhoods have nourished attitudes toward the police ranging from wariness to outright hatred, and these feelings existed long before they gained prominence through the proliferation of smartphones, surveillance cameras and other recording devices that let pictures and news of violent police-citizen encounters quickly saturate the internet. Some say the volatile relationship between police and the community is rooted in our great country’s original sin.
Whether it is or not, that sin won’t be expiated and the suspicion and hostility between the police and the people won’t be extirpated by a verdict in a single criminal lawsuit.
If defendant Michael Brelo is not guilty of the voluntary manslaughter of Timothy Russell and Melissa Williams — if the evidence did not show beyond a reasonable doubt that he knowingly caused their deaths in violation of the Constitution — then I will not sacrifice him to a public frustrated by historical mistreatment at the hands of other officers.
At the same time, if the evidence did prove the charges beyond a reasonable doubt then he will be found guilty and punished as any other criminal. His badge and gun offer no special protection here. He and I took similar oaths to support and uphold the Constitution. If the evidence shows that he violated his he can be sure I will honor mine.
But whatever the verdict, it is a conclusion about the evidence in this case only [not the co-defendants]. If he is guilty it doesn’t mean the entire Cleveland police department is dysfunctional, incompetent and uncaring. If he is not guilty the verdict does not mean the department covered itself in glory on November 29. And guilty or not guilty, the verdict should be no cause for a civilized society to celebrate or riot. Whatever the outcome, two people are still dead and the defendant’s life is forever changed.
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Causation
Besides proving that Brelo shot knowing that death would probably result, the state must also show that his conduct was the actual cause of the deaths of Russell and Williams. …
. . .
I therefore cannot find beyond a reasonable doubt that Brelo took the four gunshots causing the four fatal wounds, any one of which by itself would have caused Russell’s death. I do find beyond a reasonable doubt that he caused at least one of them. I find it possible, but not beyond a reasonable doubt, that he caused two of them. I cannot, however, find beyond a reasonable doubt which of the four fatal wounds he caused. It is likely that he is responsible for 15.C, given that shot’s downward and right to left trajectory and Brelo’s likely spot on the hood more or less between Williams and Russell, which put Brelo slightly to Russell’s right. It is less likely, but possible, that 15.B came from Brelo while on the hood. But whichever one he caused, it is very unlikely that he caused the other, since 15.C and 15.B came from different directions, and impossible that he caused 2, since it is on the opposite side of Russell’s head.
Despite not being convinced of which shot it was, I have found beyond a reasonable doubt that Brelo fired a shot that by itself would have caused Russell’s death. But proof of voluntary manslaughter requires a finding, beyond a reasonable doubt, either that his shot alone actually caused the death or that it was the “straw that broke the camel’s back,” to use Justice Scalia’s locution, combined with other non-lethal wounds. Dr. Wiens opined that each of the four wounds was fatal if suffered alone and she described all of them as antemortem, i.e. pre-death. Her definition of death appears to be when the heart stops beating. That definition comports with the common law definition of death as the “cessation of life; the ceasing to exist, defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.” State v. Johnson, 60 Ohio App. 2d 45, 48, 395 N.E.2d 368 (1977). In other words, any one of the four caused the death, and not necessarily the first to hit Russell, since the time from injury to cessation of life varied depending on the wound.
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Brelo’s affirmative defense
. . .
My conclusion that Brelo was justified in deciding to use deadly force should come as no surprise to the parties since the same opinion was testified to by the plaintiff’s use of force expert W. Ken Katsaris. The real dispute between the defense and the prosecution is whether Brelo’s probable cause to use deadly force continued through to the conclusion of the shooting or disappeared about eight seconds before he stopped shooting when he took an elevated position on the zone car and then the Malibu.
. . .
My conclusion that Brelo was justified in deciding to use deadly force should come as no surprise to the parties since the same opinion was testified to by the plaintiff’s use of force expert W. Ken Katsaris. The real dispute between the defense and the prosecution is whether Brelo’s probable cause to use deadly force continued through to the conclusion of the shooting or disappeared about eight seconds before he stopped shooting when he took an elevated position on the zone car and then the Malibu.
