2016 Ohio 856
Ohio Ct. App.2016Background
- On Nov. 22, 2014, 12-year-old Tamir Rice was shot by Cleveland police officers Timothy Loehmann and Frank Garmback while holding an Airsoft gun with its orange tip removed.
- In June 2015 eight private citizens (clergy/community activists) filed affidavits alleging multiple felonies (aggravated murder, murder, involuntary manslaughter, reckless/negligent homicide, dereliction of duty) against Loehmann and Garmback.
- The Cleveland Municipal Court found the affidavits filed in good faith and that probable cause existed for several offenses, but concluded it lacked authority to issue arrest warrants and instead referred the matter for prosecutorial review under State ex rel. Boylen v. Harmon and R.C. 2935.09(D).
- Appellants sought a writ of mandamus and, after denial, appealed the municipal court’s determination, raising statutory and rule‑conflict arguments that the court must issue warrants under R.C. 2935.10.
- While the appeal was pending, the Cuyahoga County Prosecutor released a report concluding the officers’ use of deadly force was a mistaken but reasonable perception of a threat and recommended against presenting charges to a grand jury; the grand jury declined to indict.
- The court held the appeal moot in light of the prosecutor’s report and the grand jury’s decision and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court had a ministerial duty to issue arrest warrants under R.C. 2935.10 after finding citizen affidavits show probable cause | Appellants: court must forthwith issue warrants when affidavits show probable cause and good faith | Municipal Court/Prosecutor: court lacks authority to issue warrants in citizen‑initiated felony affidavits; matter must be reviewed by prosecutor under R.C. 2935.09(D) | Court: appeal moot; but underlying holding below was that court lacked authority to issue warrants and referred for prosecutorial review (case dismissed as moot) |
| Whether 2006 amendments to R.C. 2935.09 eliminated private citizens’ ability to ‘cause prosecution’ by filing affidavits | Appellants: amendments do not remove citizen-initiated prosecution; R.C. 2935.10 still requires warrants | Municipal Court: Boylen interpretation requires presentation to a reviewing official (prosecutor) before prosecution proceeds | Court: mootness prevented further appellate resolution; municipal court previously applied Boylen and referred matter to prosecutor |
| Whether Criminal Rule 4 conflicts with R.C. 2935.10 so as to nullify the statutory warrant mandate | Appellants: Criminal Rule 4 and R.C. 2935.10 are not in conflict; court must issue warrants | Municipal Court: construed statutes and rules to require prosecutorial review; practical conflict resolved in favor of prosecutor’s role | Court: did not reach merits due to mootness; affirmed dismissal |
| Whether the appeal is moot despite prosecutor’s report and grand jury no‑bill; exceptions (capable of repetition, ambiguity, double jeopardy) | Appellants: report is not a formal no‑bill, ambiguous; future grand juries might indict; exception for matters evading review applies | Municipal Court/Prosecutor: prosecutor’s report and grand jury decision render controversy over issuance of warrants moot; no reasonable expectation appellants will face same action again | Court: appeal is moot; exceptions rejected (no reasonable expectation of repetition; report identified officers and recommended against charges; no ripe grand jury action) |
Key Cases Cited
- State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370 (2006) (interpreting citizen filing procedures under R.C. 2935.09 and role of reviewing official)
- Fortner v. Thomas, 22 Ohio St.2d 13 (1970) (courts should avoid issuing advisory opinions on abstract propositions)
- State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229 (2000) (limits on the "capable of repetition, yet evading review" mootness exception)
- Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397 (6th Cir. 2007) (reasonableness of officer’s perception evaluated by moment‑to‑moment facts in deadly‑force analysis)
- Pewitt v. Lorain Corr. Inst., 64 Ohio St.3d 470 (1992) (extrinsic evidence may prove mootness and courts may take judicial notice)