Cleveland: 12-year-old's police shooting death his own fault

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Cleveland: 12-year-old's death his own fault 04:32

Story highlights

  • Cleveland: Tamir Rice died because he failed "to exercise due care to avoid injury"
  • A police officer killed Tamir, 12, last year as the boy played with a pellet gun
  • Officers mistook fake gun for a real one, Cleveland Police Department has said

(CNN)Pleading innocence, immunity and ignorance, the city of Cleveland responded to a wrongful death lawsuit filed by Tamir Rice's family by saying the 12-year-old's death was his own fault.

In November, Cleveland Officer Timothy Loehmann fired the fatal shots at Tamir within two seconds of arriving outside a recreation center where the sixth-grader was playing with a pellet gun.
In the 41-page response to the family's lawsuit filed Friday, the city says that Tamir's injuries "were directly and proximately caused by the failure of Plaintiffs' decedent to exercise due care to avoid injury." The response further says that "Plaintiffs' decedent's injuries, losses, and damages complained of, were directly and proximately caused by the acts of Plaintiffs' decedent, not this Defendant."
    The city also claims it is entitled to all "full and qualified" immunities under state and federal law.
    As to the scores of other allegations in the lawsuit, the city responds by saying that they are untrue, that the independent investigation by Cuyahoga County is still going on, or that the city "is without knowledge or information sufficient to form a belief as to the truth."
    Cuyahoga County's medical examiner has ruled the death a homicide but has issued no determination as to whether the events that caused the boy's death constitute a crime.

    911 call: Gun 'probably' fake

    Cleveland authorities have repeatedly said that Loehmann mistook Tamir's fake gun for a real one.
    911 caller: Gun might be fake
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    A witness called 911 on November 22 to say there was "a guy with a pistol" and that although the weapon was "probably" fake, Tamir was scaring people. It doesn't appear the dispatcher relayed the information to Loehmann and Officer Frank Garmback. Video of the incident shows the two pull up on the snowy grass near a gazebo where Tamir is standing. Within two seconds of exiting the police car, Loehmann shoots the 12-year-old.
    The boy died the next day of injuries to "a major vessel, intestines and pelvis."
    In the video, neither Loehmann nor Garmback appears to provide medical assistance to the boy, and Police Chief Calvin Williams has said that Tamir did not receive first aid until an FBI agent arrived on the scene four minutes later.
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    An attorney for the Rice family says the city's response to the lawsuit is indicative of well-documented problems within the Cleveland Police Department.
    "The Rice family maintains that Tamir was shot and killed unnecessarily by Cleveland police officers," Rice family co-counsel Walter Madison said in a statement.
    "Their tactics that preceded his death and the subsequent victim blaming are examples of the institutionalized behavior that has beset the Cleveland Police Department. The Rice family's lawsuit seeks to eliminate certain institutional behaviors and practices that have no place in our diverse community."
    Rice family co-counsel Benjamin Crump said the family was "just in disbelief" after reading the response. Crump went on to attack the police department's assertion, put forth in December, that Loehmann gave Tamir three verbal commands to put his hands up.
    "It is just incredible that the police officer, based on what we see on the video surveillance recording, gave Tamir three verbal commands to put his hands up and drop the weapon, based on what we see in the video. It was less than 1.7 seconds. The car hadn't even stopped. It's unbelievable."
    CNN could not immediately reach the Cuyahoga County Sheriff's Department for comment. Cleveland Police Department spokesperson Ali Pillow declined comment and referred questions to a city spokesman, who couldn't be immediately reached.

    A cop, department with histories

    In December, the U.S. Justice Department released the results of a two-year investigation that found Cleveland officers use guns, Tasers, pepper spray and their fists excessively, unnecessarily or in retaliation. The police force has used unnecessary and unreasonable force at a "significant rate," employing "dangerous tactics" that put the community at risk, the investigation stated.
    It was also reported in December that Loehmann's previous employer, the Independence Police Department in a Cleveland suburb, had numerous complaints about the officer, including that he was "distracted and weepy" and "emotionally immature" and had demonstrated "a pattern of lack of maturity, indiscretion and not following instructions."
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    He also showed "dangerous loss of composure during live range training" and an "inability to manage personal stress," the department said.
    In December, Crump called for Loehmann and Garmback to be charged and decried what he said was a police tendency to let grand juries determine whether to charge officers involved in shootings. In Tamir's case, he said, "several things were done inappropriately," which is probable cause to charge the officers.
    "There is nothing written anywhere in the law that says police officers are to be treated differently from any other citizen," Crump said. "We cannot have children playing cops and robbers on a playground and police officers coming and claiming their lives."
    Loehmann and Garmback have been placed on paid leave pending the outcome of the investigation.