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Cleveland Police Officer Found Not Guilty of Manslaughter and Felonious Assault in Police Shooting. Aired 10-11a ET
Aired May 23, 2015 - 10:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: This is CNN Breaking News.
[09:49:121] CHRISTI PAUL, CNN: Following breaking news this morning, and so grateful to have your company. I'm Christi Paul.
JOE JOHNS, CNN ANCHOR: And I'm Joe Johns, in for Victor Blackwell.
PAUL: We want to get right to the courtroom in Cleveland, Ohio. At any moment, Judge John O'Donnell will deliver the verdict for this man. It's a voluntary manslaughter trial, and that is police officer Michael Brelo you're looking at.
We're going to bring this to you live as it happens. These obviously live pictures coming to us from the courtroom. The judge earlier has said he would be announcing this verdict.
Brelo's been charged with two counts of voluntary manslaughter in the deaths of an unarmed couple.
JOHNS: Those victims, 43-year-old Timothy Russell and 30-year-old Malissa Williams, killed when police fired 137 shots at their vehicle in November of 2012. It happened following the high-speed chase that wound though the streets of Cleveland. You can see from an image we have here coming up just how many bullets went through the vehicle's windshield. The red lines show their trajectory right there. Prosecutors say after the chase, Brelo climbed on the hood of the Chevy Malibu and fired an additional 15 shots from there.
CHRISTI PAUL, CNN ANCHOR: A dozen other officers we know fired their guns as well. Now prosecutors say Brelo's decision to get on the hood was unreasonable and showed his intent to kill. Brelo's defense, meanwhile, said he had probable cause, that he and the other officers believed that they were going to die.
We want to talk more about this case with attorney Walter Madison who is with us now. He is plugged in to the Cleveland community, is representing the family of Tamir Rice, in fact, remember, the 12-year- old who was shot and killed by a police officer in Cleveland. Also joining us, criminal defense attorney and HLN legal analyst Joey Jackson. Walter, let me start with you. Do you know anything about this judge who presiding over the case? And what has been the, I guess, feeling in the community about this particular case?
WALTER MADISON, ATTORNEY FOR TAMIR RICE'S FAMILY: Well, you know, the judge has been a fair judge all that I've own. And there's nothing to suggest that he has done or will do anything other than follow the law. The real question is what case or matters presented before him for him to make the decision. And there's a lot of questions surrounding why only officer was prosecuted or selected to be indicted, and the particular charge, because there is a serious question about causation. And how -- how does any one person know that Mr. Brelo's bullets were the actual cause of death? Or did he actually shoot a dead person?
PAUL: You know, that's a good point, because I was reading that the defense is arguing this is about 2.6 seconds. That the 2.6 seconds were when he jumped on to the car, and the defense claims by that time, both were already dead. That's according to a forensic pathologist for the defense. Do you believe it comes down to 2.6 seconds, or is it bigger than that?
MADISON: Well, who really knows? That's the point. The real question is that there are other charges that could have been filed that would have involved or implicated the other officers, whether it be on a conspiracy theory or on a felony murder theory in the state of Ohio. One person being held responsible for the cause of death for these two individuals, puts the judge in a very difficult position.
JOHNS: Here's one thing a lot of people might be asking. People who watch "CSI" or whatever know for sure you have ballistics tests and you can usually tell the fingerprint of a round from a firearm, and trace that back to the gun, whoever had that gun. In this case it seems pretty clear that authorities are saying they can't trace which bullets hit this couple. Is that, is that a fact?
MADISON: Absolutely. That's exactly what makes this so difficult for the judge to make a decision. Every officer in Cleveland is issued the same service weapon, same rounds, so in that respect they're identical. You know, just from a legal standard, you ask a judge to make this call an issue a causation, he would not be incorrect in acquitting this officer.
JOHNS: All right, so we have Joey Jackson, now, and maybe we'd like to go out to him. Joey, as you look at the situation and the judge about to come in any minute on this case, what are your over-arching thoughts about this police officer who right now is in jeopardy of being convicted on a manslaughter charge?
JOEY JACKSON, HLN LEGAL ANALYST: Sure. Good morning, Joe, good morning, Christi, good morning, Walter. You know, it's about two competing theories in the courtroom. If you're on the side of the police officer who is defending this, it's about, listen, I acted reasonably and in accordance with my training and in accordance with my experience. There was a high-speed chase here. Obviously you've amped up from that. You believe that there's shots being fired at you. And it's about the perception of fear. Is that perception that you have or fear, Joe, imminent enough for me to then strike back at you? And is the threat posed to me and the force that I use proportionate to what that threat is?
And of course, when you're acting under the sphere of all of the excitement and under the sphere of just having a moment to react, it's a bit different. And I think that's why in this case what you saw the defense do is say, look, it's not about Monday morning quarterbacking. It's about what your perceptions were at that time. Of course, if you're on the prosecution's side, you're going to say that your actions were unreasonable. You came out from cover, you stood on that hood, and you discharged your weapon into that car, firing, and using as, they said, Joe, using him as target practice and really killing, you see the victims there, killing them.
Of course there is the issue of causation, but I think certainly the trial dealt with that issue from expert testimony. And you could see the trajectory of bullets that hit them. Based upon the rods and based upon the way that the bullet wounds entered. And so there are really two competing interests here. Were you acting in accordance with a perceived reasonable threat? Or in the alternative, were you acting unreasonably? Did you need to come out from cover? And did you in coming out from cover jumping upon a hood, act in a way that was converse to your training and certainly exceeding the bounds of the law? And that I think is what the judge has to the balance in making the right decision here.
[10:05:22] PAUL: OK, you can see there, just to reiterate what's going on here -- the judge, judge John O'Connell -- O'Donnell, excuse me, has not yet taken his seat yet. But he is on the way, we understand. And he's going to be telling us finally this verdict about Michael Brelo.
And I know a lot of you are out there wondering perhaps why this chase started in the first place. And that's a really interesting concept here. It seems that an officer thought he heard a gunshot while he was had his cruiser outside the Cuyahoga County Justice Center. he pursued the car and something went out over the police radio that indicated an officer-involved shooting. And that's why there were so many police officers involved.
This was a 22-minute high-speed chase. There were 62 police cars. As we said, 137 bullets were shot into this car, 49 of them were from Brelo. This is what we know about the victims, because we can't forget about the victims here. But you're wondering, why were they running? Why didn't they stop? Apparently Timothy Russell, who is 43-years-old, had alcohol in his system. Melissa Williams had consumed marijuana. Both had tested positive for cocaine.
But Russell Williams was shot 23 times. Melissa Williams was shot 24 times. And even, you know the assistant prosecutor says, Timothy Russell made some bad decisions that night, but it should not have been a death sentence for him.
So Joey, when we look at the defense in this case, Brelo's defense, here's whey told the Ohio Bureau of Investigations, "I've never been so afraid in my life. I thought my partner and I would be shot and that we were going to be killed, at which point I drew my weapon, and I shot through the windshield at the suspects." Again, the point of contention here is that he was standing on the hood of the suspect's car, firing into the front windshield. Is that, Joey, a logical defense? JACKSON: You know, and that's what it comes down to, Christi, because
we have to answer the question of reasonableness of your behavior. And certainly you couldn't even imagine the adrenaline that must be flowing, you know, looking at this, as the defense has pointed out, in the context of how it occurred. You, Christi, breaking down the high- speed chase involved, the people who were involved in that car, the fact that there was something in their system. I don't know that the officer had a basis to know that at the time.
But the question comes down to -- when you're shooting at someone believing they're shooting at you, when you're fearing and perceiving there's a risk of your imminent death and you're trying to defend yourself at that time, does it transcend the bounds of that to now jump on top of a hood of a car, where you're exposed.
And then the question becomes from a prosecution perspective, well, if they had a weapon and you really felt that you were in danger of you dying, why would you fully expose yourself, jumping on a hood and firing rounds into that car unless you intended to kill them and knew that they posed no threat to you?
And so that's what needs to be balanced. Was that the proper thing to do in accordance with your training no matter how scared you were? And so the prosecution is resounding the themes of accountability. Yes, police are scared. Yes, they have a tough job. But should they not reassess a situation and evaluate and use as a defense as -- excuse me, the experts have said in this case for the prosecution, lethal force as an absolute last resort. And that includes discharging your firearm.
JOHNS: Now 30,000-foot view, I would like to come back to Walter Madison just for a moment. We are at a very peculiar place with Cleveland, Ohio, right now, where this city is essentially looking at three different individuals who have died as a result of police activity, and they're all controversial cases. You have Timothy Russell. You have Melissa Williams this case right before us. And we have the case of the family that you represent, Tamir Rice, that 12- year-old boy in Cleveland. Give me some sense, is there some type of a culture problem in Cleveland, Ohio? Or have they just had an unfortunate series of events in the police department?
MADISON: It is not an unfortunate. It is systematic. And these are the words of the federal government. There has been a declared systematic and pattern of excessive force. That's violence, Joe. And that is -- and that's just three, two instances. There are many more. There's a pattern of violence perpetrated upon citizens from the city of Cleveland police department, and that's from our government.
Now, we are in a situation where the judge is getting ready to render a verdict and we've been very proactive in preventing violence. No right person in their right mind can say violence is the answer. But you don't have to support violence to understand the response that everyone is preparing against. The people of Cleveland didn't start the violence.
[10:10:08] JOHNS: Yes, and speaking of violence, we're obviously hoping for calm in Cleveland.
MADISON: No question about it.
JOHNS: And -- right. And we do know that there are some plans to try to get in contact with National Guard people and have them on alert or whatever in the event there is a problem in Cleveland. But the fact remains that we have this situation here -- look, the judge is coming in right now. And it looks like we're getting ready to find out what the verdict is. It will probably be another couple minutes here before, before he actually sits down and takes the mic.
PAUL: This is Judge John O'Donnell. And real quickly -- you know let's listen here. Make sure we doesn't want to miss anything.
UNIDENTIFIED MALE: You sat through the whole thing.
JUDGE JOHN O'DONNELL: We are on the record in the state of Ohio versus Michael Brelo. All counsel and the defendant are present.
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. 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 that many people believe was murdered by the police.
This animosity toward the police is fed not just by stories that TV- watchers and internet clickers are attracted to. But by police officers' confronts, honest people treated as criminals, by unnecessary brutal treatment of suspected arrestees, by daily slights and disrespect, real and imagined, by police on the people they serve.
These realities in some neighborhoods have nourished attitudes towards the police ranging from wariness to outright hatred. And these feelings have 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 case.
If defendant Michael Brelo is not guilty of the 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 others, 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.
[10:15:10] But whatever the verdict is, a conclusion about the evidence in this case only. 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 had covered itself in glory on November 29th. 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.
I have Mr. McGinty and Mr. De Angelo, a 35-page verdict that I will spare you the reading of the entire thing. There are probably 10 pages or so that I do want to read on the record in open court. The rest of course you will have in moments.
So the state has to prove that the defendant shot these two people knowing that death would probably result. But the state also has to show that the conduct was the actual cause of the deaths of Russell and Williams. Timothy Russell had 23 gunshot wounds. The medical examiner who performed his autopsy, Dr. Weems (ph), numbered the wounds sequentially in head-to-toe order, not the order they were sustained, so that wound number one is at the top of Russell's led, wound number two, lower on the head and so on, down to 15-h.
Of the 23, both wounds one and two to the head would be fatal taken alone. The nine wounds labeled at 15-a, to 15-h together would be fatal, combined. These are wounds that were penetrating shots to the chest and abdomen and for which, Dr. Weems could not determine necessarily the wound paths. But of these, 15-b from a bullet that pierced the heart and lung, and 15-c, from a bullet that perforated the heart, would each be fatal by itself.
Wound one at the top of the head is from a bullet that entered there, less than an inch left of the midline and lacerated, among other structures, the left basal ganglia, which controls movement. Weems (ph) testified that the trajectory of that wound was down from the top, to the left of the deceased's body and from the back toward the front of Russell's body.
Wound one was immediately incapacitating to Russell so that he could not move and by itself would have killed him within minutes. Wound two was another penetrating wound to Russell's head on the side, entering two inches to the right of midline, just above the right ear, and injuring the brain stem, which controls respiration and heart rate. Dr. Weems (ph) testified that this bullet caused a nearly immediate death. Like wound one, the path of this bullet was down from Russell's right to his left in that basic direction and from back to front. Russell incurred the head wounds, indeed all of his wounds, while
sitting on the driver's side of the Malibu's front bench seat. Other than that, his movements are not known and his exact position at the time he was shot in the head is not known.
[10:20:03] What is known is that after the shooting stopped, he was found sitting back in the car and slumped to his right resting against and a little behind Williams' left shoulder. Because Russell's head wounds were incapacitating, that is to say he wouldn't be moving after either of them, and because they were so close to each other with such similar trajectories, they either came from the same gun in rapid succession, or nearly simultaneously from two separate shooters positioned near each other. And that shooter or those shooters would have been to his right on a car's passenger side. There is no evidence that Brelo ever shot his gun toward the Malibu from its passenger side.
Wound 15-b is a penetrating wound to Russell's left upper chest. The bullet that caused this wound came in from Russell's left and went right front to back, where it entered the heart and would have killed Russell within anywhere from several seconds to a minute.
Wound 15-c is a penetrating wound to Russell's left -- I'm sorry, right upper chest. About three inches from 15-b, but on the other side of midline, like 15-b, the bullet that caused 15-c hit Russell's heart and taken alone, would be fatal. Also like 15-b, after sustaining this injury, Russell could have remained alive for a couple minutes, maybe, according to the testimony, and could have still operated a car. But unlike 15-b, which came from the left, 15-c came from the right and went left, in other words, the opposite direction to 15-b.
Brelo stands accused of illegally using deadly force against Russell and Williams from the trunk of zone car 238 and the hood of the Malibu. His final 15 cartridges were spent while on the Malibu's hood. It took 7.392 seconds to fire all of those shots. And they all came from the same place. Although Russell could have been positioned relative to Brelo's gun barrel in a way that would have exposed either the top of his head or the right side of his chest, or the left side of his chest, to a bullet with the trajectory of wound one or two to the head, 15-b or 15-c for the chest, it is highly unlikely if not impossible that during less than eight seconds, Russell was positioned, then repositioned, then repositioned again so that all four wounds came from the same gun in the same place.
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.
Dr. Felo did the autopsy of Melissa Williams. He identified 24 gunshot wounds, six of which taken in isolation were fatal. Wound eight was caused by a bullet that entered just under the collar bone about two inches to the right of midline and into the lung. That wound has a trajectory straight in, and from left, her left to right. The projectile that made wound nine entered Williams' chest on a downward trajectory, went left to right, slashed the lung and pierced the ascending aorta.
[10:25:01] Gunshot wound 10 was on the right side of Williams' chest, less than an inch from the midline. The bullet that caused it had a downward trajectory, came from left to the right, and went through the sac around the heart and ripped the superior vena cava, the major vein that drains blood from the heart.
Wound 11 is lower on Williams' chest and on the left side, about two inches from the center of her body, and was caused by a bullet coming down and also from left to right. This bullet went through the heart's right ventricle and lacerated Williams' right diaphragm and kidney.
About two inches below wound 11 is wound 12. The bullet that came in here scuffed the heart and went through the left lobe of the liver and the stomach. Wound 12 has the same basic path as wound number 11, downward into the chest and from left to right.
The last of Williams' unequivocally fatal wounds, number 13, is in her right abdomen one-half-inch from midline. The path of the projectile that came in here was upward and from left to right, and it hit the intestines, pancreas, inferior vena cava, and right renal artery.
Wound 13 is the only fatal wound with an upward trajectory and it is apart from the others. All five of wounds eight-12 are clustered within a distance from her head to her toes of eight inches, and wound 13 is another five inches itself below wound 12.
Dr. Felo described all of wounds 8-11 and 13 as pre-mortem, which is to say before death. He testified that wound 12 is most likely pre-mortem. Williams also had one head wound that could be said in isolation to be fatal. Wound one, not depicted on the mannequin, is just above her left ear. The bullet came straight in and penetrated the brain's left temporal lobe. If this injury was incurred alone, it would have caused instant unconsciousness, and Williams' heart would have stopped beating within minutes.
Yet, the parties' experts differ on whether the lethal shot to the head came after Williams was already dead. Dr. Felo classified as post mortem, because it is non-hemorrhagic, not bleeding. Dr. Roe (ph), the expert for the defense, characterized it as perimortem, meaning the injury happened around the time of death, but whether it came before or after the cessation of life, the legal definition of death, can't be determined.
Dr. Felo did agree that the term "perimortem" is an accepted term of art in pathology and is not just a hedge for a doctor unwilling to opine whether an injury is pre or postmortem. Dr. Felo's testimony that wound one to her head was sustained after death, after the cessation of respiration, pulsation and all of her other vital functions, combined first with his testimony that after the other fatal wounds to the chest, Williams would have lived for 12-20 seconds. And second, with the fact that the time from the first shot to the last was about 20 seconds, essentially absolves Brelo of causing her death, if believed.
[10:30:05] The very latest Williams could have sustained wound one to the head was during the 20th second of shooting, which is to say the last shot. Subtracting from that the 12 seconds at a minimum it took for her to die from the fatal chest wound, or wounds, she would have been hit by those bullets to the chest no later than eight seconds into all of the shooting.
And all of the shots taken by all 13 officers, including Brelo, during those first eight seconds have been deemed by the state as legally justifiable.
Even if one arbitrarily cuts off half the minimum time Williams would have lived after the chest wounds from 12 seconds to eight seconds, and still assuming wound one was made by the very last bullet fired during the 20 seconds of firing, that excludes all of Brelo's shots during the last 7.392 seconds, when he did the shooting that the state's expert considers not justified as causes of wounds eight-13.
I detail this timeline to illustrate the imprecision inherent in a medical examiner's opinions. I am not critical of Dr. Felo's qualifications and abilities. I believe no pathologist could say exactly when Williams' heart beat and breathing ceased. But opinions are just that, one person's conclusions about an unknown fact based upon known facts combined with the experts' knowledge gained from education, training and experience. And expert's opinions can be the difference between finding something beyond a reasonable doubt and not. They should be examined carefully.
Having considered Dr. Felo's opinion, I believe he's either wrong about the time from the chest injuries until death, or he's wrong that wound one to the head was post-mortem. On the one hand, his estimate of the time from the chest injuries to death is based on years of experience and a rough mathematical calculation about the amount of blood pumped per beat of Williams' heart. On the other hand, his opinion that the head wound was non-hemorrhagic and thus must have occurred after Williams lost pulsation is based on his own examination of the injured area of the head and brain.
Yet given the extremely compressed timeframe, I find that the fatal injury to Williams' head came before her heart stopped pumping and before her life had ceased. That leaves Williams with seven separate fatal wounds. Five of them, eight-12, could have been inflicted by one shooter in one position. But if they were, the high- end probability that Williams' body was contorted in such a way that she was exposed to those five downward shots and an upward shot to her lower abdomen and a straight-in shot to the left side of her head leads me to conclude beyond a reasonable doubt that Brelo caused at least one fatal wound to Williams' chest, probably wound 10, and maybe all five, but that one or two other officers inflicted two other fatal wounds, namely 13 to the abdomen and one to the head.
Given these facts about the wounds to Timothy Russell and Melissa Williams, I cannot find beyond a reasonable doubt that Brelo took the four gunshots causing Russell's four fatal wounds, any one of which would have caused Russell's death. I do find beyond a reasonable doubt as with Williams, 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, as mentioned, find beyond a reasonable doubt, which of the four fatal wounds he caused.
[10:35:14] In Russell's case, 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.
So for both Timothy Russell and Melissa Williams, I have found beyond a reasonable doubt that Brelo fired at least one shot which 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, to use the words of Justice Scalia from Burge versus the United States, the straw that broke the camel's back.
Dr. Weems (ph) opined that each of the four wounds was fatal if suffered alone, and she described all of them, these are the ones to Russell, as ante-mortem, which is to say before death. Her definition of death does comport with the legal definition, which, as I mentioned, is cessation of life, the ceasing to exists 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, et cetera.
In other words, since they were pre-mortem, any of these four wounds 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.
In the end, as to Timothy Russell, Dr. Weems (ph) could not offer an opinion as to which ante-mortem wound caused death first, leaving me as the finder of the fact to guess which of the undoubtedly deadly bullets caused the cessation of life. Guessing and being convinced beyond a reasonable doubt are not compatible.
Brelo's deadly shot would have caused the cessation of life, if none of the other three were fired on Timothy Russell. But they were. And that fact precludes finding beyond a reasonable doubt that Russell would have lived but for Brelo's single lethal shot.
Similarly with Melissa Williams, I find that one or two other officers inflicted two other fatal wounds, as I mentioned, 13 to the abdomen and one to the head. So with these killing wounds from one or two people other than the defendant, I cannot find beyond a reasonable doubt that but for Brelo's fatal shot or shots to Williams' chest she would have lived.
As with count one, I therefore find on count two that the voluntary manslaughter of Melissa Williams, excuse, that the element of causation has not been proved beyond a reasonable doubt.
Having said that, the question of whether Brelo's affirmative defense has been proved by a preponderance of the evidence is not moot. Having found beyond a reasonable doubt that Brelo did cause a wound that would have killed both of these people, and having concluded that both of them lived for some moments, however brief, after those killing shots, he may still be found guilty of the lesser included offense of felonious assault defined as knowingly causing serious physical harm. It is therefore necessary to address his claim of legal justification. Excuse me.
[10:40:09] First, I find if not strictly as a matter of law, that as a matter of practicality, his claim of legal justification is an affirmative defense that he's required to prove by a preponderance of the evidence. But a preponderance of the evidence is a lesser burden than proof beyond a reasonable doubt. A preponderance is the greater weight of the evidence, and only requires a belief that something is more likely than not. Pardon me.
The Fourth Amendment to the United States constitution provides that the right of the people to be secure in their persons against unreasonable searches and seizures shall not be violated. Whenever an officer restrains the freedom of a person to walk away, he has seized that person. There can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
A determination of the reasonableness of the seizure requires analyzing the totality of the circumstances. The question is whether the officers' actions are objectively reasonable, in light of the facts and circumstances confronting them. 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.
A reasonable perception of threat is the minimum requirement before deadly force may be used. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. The calculus of reasonableness must abide the allowance for the fact that police officers are forced often 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.
Earlier in the opinion I already listed some of the police officers' observations during the chase that Brelo heard and which bear upon a question of whether Brelo had an objectively reasonable perception that the Chevrolet Malibu and its occupants presented an imminent danger of serious bodily harm to him or to the other officers.
The initial report from Officer Van (ph) that someone in the Malibu popped off a round. Officer Seifert (ph) called that the passenger looked angry and was pointing a gun out the back window. Van's (ph) warning that the passenger had a gun. Seifert (ph) saying that the passenger is turning back around again, pointing a firearm, and another officer's call that Williams was possibly loading a weapon.
Brelo was also aware of the length in both distance and time of the chase. Although he was driving one of the cars nearest to the Malibu, he likely knew that many other cars were in pursuit, yet Russell still would not stop. He knew Russell had gone over 100 miles per hour and ignored dozens of traffic controls. All of this would make him wonder why the people in the car were so desperate to escape.
By the time the chase was near its end, Brelo had been led through parts of Cleveland unfamiliar to him and at the school was in East Cleveland, a different city altogether. The entrance drive from Wymore drive to the parking lot was a dusty, dirty area, where a driver could only see the car in front of him.
As he was on that entrance, he heard a radio call of shots fired and another radio call that there was no way out of the parking lot. When he pulled to a stop, Russell was unexpectedly barreling down the driveway toward him, and then slammed into car 238 to Brelo's left. He thought he saw both people in the Malibu with something black in their hands. Gunfire was erupting in front of him, apparently coming from the suspects. And the car was still running.
[10:45:16] Under the totality of these circumstances, he perceived that imminent threat of death or great bodily harm to himself and other officers, and he decided to use deadly force to seize the Malibu's occupants. The same decision was made by 12 of his fellow police officers, all of whom surely made many of the same observations as Brelo.
I find by a preponderance of the evidence that Brelo's decision to use deadly force against Russell and Williams was based on probable cause to believe that they threatened imminent serious bodily harm to him and the other officers, not to mention the public. I therefore find that his initial decision to use force was constitutionally reasonable. It was reasonable despite knowing now that there was no gun in the car and he was mistaken about the origin of the gunshots. It is Brelo's perception of a threat that matters.
Excessive force claims, like most other Fourth Amendment issues, are evaluated for objective reasonableness based upon the information an officer had when the conduct occurred. If a police officer's perceptions were objectively reasonable, his use of force is not unconstitutional, even if no weapon was seen or the suspect was later found to be unarmed, or if what the officer mistook for a weapon was something innocuous.
But my conclusion that Brelo was justified in his initial decision to use deadly force should come as no surprise to the parties since the same opinion was testified to by the plaintiffs' use of force expert, W. Ken Kitsaris (ph).
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 out of his own car and then the Malibu.
Our review of Kitsaris' (ph) testimony is valuable for perspective on the ultimate issue. In Kitsaris' (ph) opinion, William Salupo (ph) reasonably perceived a threat justifying at least a shot at the Malibu and both of its occupants. In his opinion, Paul Box (ph) reasonably perceived a threat justifying a shotgun blast at Russell and Williams. In his opinion, Christopher Eric (ph) reasonably perceived a threat justifying at least two shots at Russell and Williams. In his opinion, Wilfredo (ph) Diaz reasonably perceived a threat justifying at least three shots at Russell and Williams. In his opinion, Brian (ph) Sabolick (ph) reasonably perceived a threat justifying at least four shots at Russell and Williams. In his opinion, Michael Farley (ph) reasonably perceived a threat justifying at least four shot at Russell and Williams. In Kitsaris' (ph) opinion, William Demcheck (ph) reasonably perceived a threat justifying at least four shots at Russell and Williams. In his opinion, Randy Patrick (ph) reasonably perceived a threat justifying at least nine shots at Russell and Williams. In his opinion Michael Rinkas (ph) reasonably perceived a threat justifying at least nine shots at Russell and Williams. In his opinion, Aaron (ph) O'Donnell (ph) reasonably perceived a threat justifying a least 11 shots at Russell and Williams. Scott Sistak (ph), according to Kitsaris (ph) reasonably perceived a threat justifying at least 12 shots at Russell and Williams, and Cynthia Moore (ph), Brelo's partner, reasonably perceived a threat justifying at least 14 shots at Russell and Williams.
And Kitsaris (ph) holds these opinions about the other officers regardless of their tactical mistakes. Box (ph) was out from cover near the Malibu's driver's side. Eric (ph), O'Donnell (ph), and Rinkas (ph) were exposed on the passenger side, or the safety of the positions these other officers took.
[10:50:12] Even officers who were behind cover and thus mostly protected from any shots coming out of the suspects' car were justified, according to Kitsaris (ph), in firing as many shots as they did. Moreover, in Kitsaris' (ph) opinion Belo reasonably perceived a threat justifying about 34 shots at the suspects.
So where did Brelo run afoul of the constitution? As Kitsaris put it, "Because at the point of going on the trunk of his own car, 238, and then on the Malibu's hood, he is taking action that is not trained, not recognized, not safe, and put all the other officers in the vicinity at risk of his becoming a victim and they're having to attempt to now engage to save his life, in other words, because Brelo put his own life in danger.
Kitsaris (ph) later buttressed that his criticism of Brelo stems from actions he took that were contrary to his training, and not from the harm that could befall Russell and Williams from those actions by testifying as follows. Question - "But then why would it be unreasonable for him to get up and eliminate this threat? Answer - "For the exact reasons he gave for why he did what he did, which were, in my opinion, not objectively reasonable decisions." Question -- "What do you mean? Explain that." Answer -- "Because if you are in fear of your life and you're behind cover, I can't imagine the fear that you're going to have when you put yourself standing on top of a car in the middle of, as he called it, a firefight. That is not trained. It's not appropriate. It's not objective. And whatever subjective belief" - this is Kitsaris (ph) still - "he had about his fear at that moment was not objectively reasonable to put himself up in the middle of both crossfire and the potential of being shot either by officers or the suspects, which would then jeopardize the other officers, who would have to go into a mode of saving the officer that's now down. You don't put yourself in a position of officer down in the middle of a situation that he was involved in."
That's why it's objectively unreasonable. It's not trained, it's not appropriate. It's taking yourself out from behind cover, and you're putting yourself in crossfire, and you are putting the other officers in jeopardy of having to now, if you get shot, save your life, which risks their lives.
Finally, when asked if Brelo would have acted reasonably had he continued for the last eight seconds to fire from behind car 238 instead of the hood of the Malibu, he said, "I would probably say so."
To me, all of this demonstrates that Kitsaris' (ph) point is not that Brelo's perception that the people in the car posed a threat of imminent serious bodily harm which he needed to stop was unreasonable, but only that his actions taken to get into a position to stop the threat were unreasonable. Kitsaris (ph) seems more focused on the location of the shooting than the fact of the shooting.
In any event, I'm not bound by Kitsaris' (ph) opinion that Brelo acted unreasonably. And if I reject his opinion, I can do so without necessarily relying on the opinion of Ron Martinelli (ph), the defendant's use of force expert. Expert opinions are simply offered to help the finder of fact make informed conclusions about the implications of and significance of the known facts. And those known facts are, first, the car was still running and to Brelo's observation the occupants were still moving.
Until then, over 22 miles of driveways, sidewalks, parking lots, streets, roads and highways, Russell had shown no intention of giving up. He had just rammed car 238, but his car was not so tightly wedged against 238 or blocked by 217, Brelo's car, to keep him from continuing to use the car as a deadly weapon.
[10:55:11] The possibility that car 238 could have been pushed by the Malibu to pin Brelo to the ground was not imaginary.
Second, up to three other officers were not convinced by then that the threat was over because three other shots were fired during Brelo's final volley of 15 during the last 7.392 seconds.
Third, Sabolik (ph), a reasonable police officer praised by the prosecution as having moral strength and courage, expressed a belief at trial that the car's occupants still posed a threat during the last eight seconds.
Additionally, Brelo was acting in conditions difficult for even experienced police officers to imagine. He was in a strange place at night surrounded by gunfire, sirens and flashing lights. He and Moore had fired straight through their own windshield, thinking they were about to be shot and killed. He described it as worse than being under attack from rockets and mortars while serving as a marine in Iraq. These and more are the totality of the circumstances happening when he decided to use deadly force. Brelo did not fire too quickly or at a person who was clearly unarmed or clearly unable to run him over. He did not fire at somebody walking or running away. Finally, Brelo acted in slightly more than the time it takes for a pro
golfer's tee shot to fall and less time than it takes to read this sentence. Four weeks was spent in trial examining those 7.392 seconds in every detail. An adversary at trial has proved over the centuries to be an effective way to find the truth. But if there is an ideal place to step into Brelo's shoes and view those less than eight seconds and the 12 that came before them the way he did on the night of the shooting, it is not the artificial environment of a courtroom. Still, that is what the law requires.
So I reject the claim that 12 seconds after the shooting began it was patently clear from the perspective of a reasonable police officer in Brelo's position that the threat had been stopped, and therefore find that Brelo's entire use of deadly force was a constitutionally reasonable response to an objectively, reasonably perceived threat of great bodily harm from the occupants of the Malibu, Russell and Williams.
Having so find, in summary, I find that the state did not prove beyond a reasonable doubt that the defendant, Michael Brelo, knowingly caused the deaths of Timothy Russell and Melissa Williams because the essential element of causation was not proved for both counts. I therefore find the defendant not guilty of counts one and two as indicted.
The state did prove a lesser included offense of felonious assault on both counts by demonstrating beyond a reasonable doubt that the defendant knowingly caused serious physical to both victims. But the defendant proved by a preponderance of the evidence that he is legally excused from liability from those crimes, because he caused the serious physical harm to the victims in a constitutionally reasonable objectively reasonable perception that he and the others present were Russell and Williams with imminent serious bodily harm. I therefore also find the defendant not guilty of felonious assault, a lesser included offense on both indicted counts, and the defendant is discharged. Thank you.
UNIDENTIFIED MALE: All rise.
JOHNS: So there you have it. Officer Michael Brelo found not guilty on both counts of manslaughter that he was charged with. The judge said the state had proven felonious assault but that he was excused because he acted reasonably as a police officer would in that situation. So Michael Brelo found not guilty on all counts in Cleveland morning.
[11:00:05] PAUL: And the judge also saying because he just could not get past the reasonable doubt that needed to -- that threshold that needed to be met there.
