By Elaine Magliaro
Mother Jones and Daily Kos have reported that Timothy Loehmann and Frank Garmback, the two officers involved in the shooting of Tamir Rice, “still have not been interviewed by investigators from the sheriff’s department.” Loehmann is the officer who fired the shots that killed Rice and Garmback is the officer who drove the police car.
According to an official familiar with the case, investigators have made more than one attempt to interview Loehmann and Garmback since the Cleveland Police Department handed over the case in January…
A county official familiar with the case told Mother Jones that the criminal investigation is focused solely on Loehmann. Garmback, who pulled the police car to within a few feet of Rice right before Loehmann stepped out and shot Rice almost instantly, is currently not under criminal investigation by the sheriff’s department, the official said.
Jaeah Lee (Mother Jones) said that Michael P. Maloney and Henry Hilow, the two attorneys who are representing the officers, “declined to comment to Mother Jones about the officers’ participation in the investigation, saying it would be inappropriate to do so while the investigation was ongoing.”
Shaun King of Daily Kos reported that “nearly six months after police shot and killed Tamir Rice, the Cuyahoga County Sheriff’s Office announced that the agency was nearing the end of its investigation and that there were a few more people to interview.”
Among those yet to be interviewed are Cleveland Police officers Timothy Loehmann, who fired the fatal shot that killed Tamir, and his partner, Frank Garmback, who drove the car right up to Tamir this Nov. 22. How in the world, one wonders, could these officers have months and months and months to formulate their stories before speaking to investigators?
It’s because of Garrity Rights. Heard of them? Most people haven’t.
From the Garrity Rights website:
Garrity Rights protect public employees from being compelled to incriminate themselves during investigatory interviews conducted by their employers. This protection stems from the Fifth Amendment to the United States Constitution, which declares that the government cannot compel a person to be a witness against him/herself.
For a public employee, the employer is the government itself. When questioned by their employer, they are being questioned by the government. Therefore, the Fifth Amendment applies to that interrogation if it is related to potentially criminal conduct.
Garrity Rights stem not just from the Fifth Amendment, but also the Fourteenth Amendment. While the Fifth Amendment could be said to apply only to the federal government, the “equal protection” clause of the Fourteenth Amendment makes the Fifth Amendment applicable to state, county, and municipal governments as well (determined by the United States Supreme Court in 1964’s Malloy v. Hogan)
Garrity Rights originate from a 1967 United States Supreme Court decision, Garrity v. New Jersey.
King said that Officers Loehmann and Garmback, “by law, don’t have to say a word to investigators, and anything they may have said to the Cleveland Police Department before the case was transferred to the Cuyahoga County Sheriff’s Office in January is inadmissible in court.”
Both the Cuyahoga County Sheriff’s Office and the Cleveland Prosecutor’s Office–who had been contacted via email–“confirmed that they had not yet interviewed or attempted to interview either Loehmann or Garmback.” King said that “Garrity protections were cited by both offices.”
Jaeah Lee (Mother Jones):
In the statement to reporters on Tuesday, Cuyuhoga County Sheriff Clifford Pinkney said that his investigators had examined “thousands of pages of documents” and that “a majority of our work is complete.” According to an official familiar with the investigation, those documents include Rice’s autopsy report, a 911 call transcript, cellphone records, transcripts of interviews with witnesses, and the training records of both police officers.
The documents also include Loehmann’s mental-health records, as well as disciplinary records from both the Cleveland Police Department and the Independence Police Department, where he’d served until December 2012. A deputy chief’s letter from Loehmann’s personnel file there said that during firearms qualification training Loehmann was “distracted” and “weepy,” according to a report on Cleveland.com. It also said that Loehmann “could not follow simple directions, could not communicate clear thoughts nor recollections, and his handgun performance was dismal.”
Lee reported that the sheriff’s investigation is expected to conclude in the coming weeks. He added, “In the meantime, Rice’s grieving family members felt they could no longer wait for closure.” He said that they had “been paying to preserve the boy’s body…waiting until the legal investigation was complete, in case an additional medical examination was needed.” Lee said that the family finally decided to cremate Tamir’s body late last week.
While his family has waited for months on end for the investigation to close, they were told that a second medical examination of his body may be needed at some future date.
Not wanting to suffer the emotional trauma of burying her son and then having to exhume his body from the ground for another examination, Samaria Rice patiently waited on the Cleveland Police Department and the Cuyahoga County Sheriff’s Office to close their investigations. Expecting it to close months ago, she had no idea that so much time would pass before she could properly bury her son.
The family and the investigators never released to the public the information that Tamir had not yet been buried. When the national news broke on May 4 that Tamir’s family was still in limbo, the pressure for Samaria Rice was just too much to handle. A bill in her name for nearly $18,000 accumulated as well, because the family had been charged $75 a day for the housing of Tamir’s body, according to Walter Madison, the family’s attorney, when reached by phone.
In a statement, Madison said the following:
Samaria is a mother first.
Whether or in life or death, her instinct is to care for her child.
Due to an unfortunate turn of events she was faced with the unspeakable decision to finally put her son to final rest or endure this legal morass and its hardness.
After the tremendous amount of support from around the world, Samaria made the grief stricken decision to be a mother. Tamir Rice was cremated.
Garrity Basics (Garrity Rights)
Six months after shooting, Tamir Rice’s family has him cremated (Washington Post)