Cleveland cop acquittal a fair verdict?

Protests broke out in Cleveland after the acquittal of Michael Brelo, a police officer who had been charged with voluntary manslaughter and felonious assault in the 2012 shooting deaths of two unarmed people.

We have seen a lot of alleged cases of excessive and deadly force by law enforcement, and in the last year, protests have followed decisions or events absolving law enforcement of responsibility. This has been understandable in some of these cases.

This is not one of them.

If you are among those who heard little about this case until the verdict, your takeaway may have been that a police officer jumped onto the hood of an unarmed suspect’s car and fired 15 times into the windshield.

That smattering of facts might have led you to believe that some police brutality was afoot. The problem with that? There are a lot of other facts that the headlines don’t capture.

Fortunately, because the defendant elected to have a bench trial before a judge — in this case Judge John P. O’Donnell — instead of a jury, we all have a rare judicial treat: the written opinion. Juries really just vote guilty or not guilty. They don’t have to write an explanation. Judges, on the other hand, show their work. In this case, the Judge found two independent grounds for not-guilty verdicts, and explained each in thorough detail.


Causation is a necessary element of virtually all crimes and civil wrongs alleging harm. It sounds simple, almost intuitive, but it’s not. Learned judges have struggled with the concept of causation over the centuries. In this case, the question was: did the state prove that this individual defendant legally caused the death of the driver or passenger?

In a single-shooter case, causation is easier to prove. Here, “while there is no question that the deaths were caused by police bullets generally, the state [needed to] prove in this case that they were caused by Brelo’s bullets specifically.”

Indeed, when over a hundred shots are fired at a car by 13 different people, using very similar bullets, it’s going to be hard to discern who exactly delivered the fatal shots. Even though the judge in this case found beyond a reasonable doubt that Brelo fired at least one shot that by itself would have caused Russell’s death, this did not satisfy the element of causation.

The state had to further prove beyond a reasonable doubt that his shot alone actually caused the death. Brelo’s shot would have certainly killed, if none of the other shots were fired. But those other shots were fired, and “that fact,” said O’Donnell, “precludes finding beyond a reasonable doubt that Russell would have lived but for Brelo’s single lethal shot.”

Was Brelo saved by the presence of other shooters? It’s an interesting discussion: When a member of a drive-by shooting crew is prosecuted, conspiracy theory allows members to be convicted of murder even if a defendant only drove the car and never fired a shot. Here, because there is only a single defendant and no conspirators, the contributed pool of bullets by his fellow officers actually caused the reasonable doubt.

Affirmative defense

The test is similar throughout jurisdictions: “Where an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to effect a seizure by using deadly force.” Judge O’Donnell asserted that police must reasonably perceive some threat before using deadly force . The Supreme Court also recognizes that reasonableness of force is assessed from the perspective of a reasonable officer there in the moment, “rather than with the 20/20 vision of hindsight.” Police officers “are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

So, was there a threat of serious physical harm, viewing the facts as through the eyes of the defendant at the time of this incident?

It’s true that police in this case incorrectly believed that the driver was armed and shooting at them — a car backfiring had touched off the lethal incident — but when it comes to assessing the danger posed by the driver, the “gunshots” are only a minor part of the threats of deadly force apparently inferred by police during the high-speed chase.

There are even suggestions that the police may have heard some of their own 137 shots at the suspect and mistakenly ascribed those shots to the suspect. That’s a scary public policy idea: that if one rogue cop begins shooting at you when you pose no threat, that other good officers might join in based only on hearing shots ring out and perceiving a threat.

Even without the gunshots, though, the court concluded that substantial evidence was presented that the suspect placed these officers in reasonable fear of their lives.

Over the 22 miles of chase, the driver blew over 100 stop signs and red lights, exceeding 120 mph. He evaded and sideswiped police cars, and drove over a sidewalk into a pizza shop parking lot and then out of the lot over another part of the sidewalk. During this time there were constant (now known to be wrong) reports that shots were coming from within the fleeing Chevy Malibu.

The court here concluded that under the totality of these circumstances the officer perceived an imminent threat of death or great bodily harm to himself and other officers — a decision made by 12 other officers — and justifiably decided to use deadly force to seize the Malibu’s occupants.

An expert at the trial opined that the officer’s act of jumping onto the hood to shoot was against proper training. The judge agreed, but in the court’s analysis, that training is designed to protect police officers from getting shot, not o protect stopped suspects and fleeing shooters. Accordingly, the officer’s ill-advised leap onto the hood did not divest him of his justifiable force defense. This is another interesting analysis: jumping on the hood was not considered dangerous to suspects … even though that act proved very dangerous to these suspects.

A rare case

Judge-only trials are rare. Criminal defendants and attorneys shy away from them. The conventiona wisdom is:If you only need one vote for acquittal, aren’t your odds better trying to convince one out of twelve (as on a jury), than one out of one (as with a judge)?

One thing is sure: For the public, judge-only trials are a boon. A jury simply votes one way or another, but a judge has to show his work. Judge O’Donnell’s legal opinion allows us a rare insight into the mind of the modern factfinder tasked with determining if law enforcement is guilty of excessive force.

For a public that has increasingly demanded transparency unavailable in closed-door prosecutorial decision-making, and secret grand jury proceedings, Judge O’Donnell’s opinion is a welcome change.

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