Lawsuit on behalf of Tamir Rice Must Overcome Police Exception Posted on January 20, 2015 by Sally Nyemba The court must decide whether the amount of force the officers used was necessary to control the incident. Elizabeth Goodwin as administrator of the Tamir Rice estate commenced a civil rights and wrongful death action on December 5, 2014 in federal court against Cleveland police officers Timothy Loehmann, Frank Garmback and the City of Cleveland, Ohio. However, the case must overcome statutory exception for police officers, allowing them to use the force necessary “to control an incident, effect an arrest, or protect themselves or others from harm or death.” The Rice estate challenged the validity of the fatal shooting that claimed the life of 12-year old Tamir Rice. He was an African American minor who resided in Cleveland, OH. On November 22, the boy was seen playing with an “airsoft replica gun that is designed to shoot non-lethal plastic projectiles” and a caller make a report to 911. During the 911 call, the individual reported “a person probably a juvenile was pointing a gun probably fake.” Crucial omission The dispatcher notified local officers in that area, but failed to say that the gun was “probably fake.” Veteran officer Frank Loehmann and rookie officer Timothy Garmback responded. Loehmann had been discharged as an officer in 2012 for failure to follow instructions. Upon arriving at the park, Officer Garmback drove his car at a rapid speed across the park grounds, and stopped immediately in front of Rice. A few seconds later, Loehmann appeared next to Rice and shot him twice. Afterwards the officers waited four minutes before seeking medical attention to aid him, as he lay on the “ground alive and bleeding.” The first cause of action against Loehmann and Garmback was for excessive force. As a result, the estate argues, Rice was deprived of his Fourth and Fourteenth Amendments rights. A key exception for police The estate stated a cause of action for assault and battery. It argued that the officers intentionally and maliciously applied and threatened to apply unlawful and unnecessary force against Tamir Rice. According to the Ohio Revised Code, “(A) No person shall knowingly cause or attempt to cause physical harm to another…” However, in cases involving police officers, there is an exception to this law. A police officer is allowed to use “only the amount of force necessary to control an incident, effect an arrest, or protect themselves or others from harm or death.” Therefore, the court must decide whether the amount of force the officers used was necessary to control the incident. Due to the dispatcher’s failure to advise the officers that the gun was probably a fake, Loehmann and Garmback entered the park under the impression that they were about to face a highly dangerous situation that would ordinarily require the use of lethal force. The officers argue that they were both acting in the capacity of their duty as a police officer, and that therefore they should not be found guilty in this pending action. Finally, the estate brought a wrongful death claim, seeking damages that are recoverable under R.C. §2125.02. The estate is asking that the court grant compensatory damages, punitive damages against Loehmann and Garmback, costs incurred in the action as well as attorney fees. The case is currently still pending United States District Court Northern District of Ohio Eastern Division. The case is ELIZABETH GOODWIN, as Administrator of the Estate of Tamir Rice, Deceased, Plaintiff, v. TIMOTHY LOEHMANN FRANK GARMBACK and CITY OF CLEVELAND, OHIO, Defendants, Case: 1:14-cv-02670-SO.