IN RE: AFFIDAVITS FOR PROBABLE CAUSE
No. 103255
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 4, 2016
2016-Ohio-856
Civil Appeal from the Cleveland Municipal Court, Case Nos. 2015-GA51, 2015-GA52, and 2015-GA57
BEFORE: Kilbane, P.J., E.T. Gallagher, J., and Laster Mays, J.
Reverend Dr. R.A. Vernon, pro se
5900 Kinsman Avenue
Cleveland, Ohio 44104
Reverend Dr. Jawanza Colwin, pro se
8712 Quincy Avenue
Cleveland, Ohio 44106
Bakari Kitwana, Jr., pro se
3595 Blackberry Lane
Westlake, Ohio 44145
Edward Little, Jr., pro se
11806 Iowa Avenue
Cleveland, Ohio 44108
Julia Shearson, pro se
2999 Payne Avenue, #220
Cleveland, Ohio 44114
Rachelle Smith, pro se
4364 W. 52nd Street
Cleveland, Ohio 44144
Dr. Rhonda Y. Williams, pro se
1341 East Boulevard #3
Cleveland, Ohio 44106
Joseph Worthy, pro se
250 East 156 Street
Cleveland, Ohio 44110
Hilary S. Taylor
Shawn W. Maestle
Weston Hurd, L.L.P.
1301 East 9th Street
Cleveland, Ohio 44114
MARY EILEEN KILBANE, P.J.:
{¶1} Affiants-appellants, Rev. Dr. Jawanza Colwin, Bakari Kitwana, Edward Little, Jr., Julia Shearson, Rachelle Smith, Rev. Dr. R.A. Vernon, Dr. Rhonda Y. Williams, and Joseph Worthy, a group of clergy members, community activists, and other concerned citizens (“appellants“), appeal from the order of appellee Cleveland Municipal Court (“Cleveland Municipal Court“), finding that their affidavits set forth probable cause for criminal complaints against Cleveland police officers Timothy Loehmann (“Officer Loehmann“) and Frank Garmback (“Officer Garmback“) in connection with the shooting death of Tamir Rice (“Tamir“), but concluding that the court lacks authority to issue the arrest warrants and referring the matter for further prosecutorial review.1 For the reasons set forth below, we conclude that the appeal is now moot, so we grant the Cleveland Municipal Court‘s motion to dismiss.
{¶2} On November 22, 2014, 12-year-old Tamir was outside the Cudell Recreation Center, carrying an Airsoft pellet gun, and occasionally aiming at people and objects. The orange tip that distinguishes Airsoft pellet guns from actual firearms had been removed from the Airsoft gun. Officer Loehmann and Officer Garmback were dispatched to the scene in response to a 911 caller reporting a man with a gun. As the patrol car, driven by Officer Garmback, came to a stop, Officer Loehmann immediately exited the car. Within seconds, Officer Loehmann fired his weapon twice, striking Tamir.
{¶3} On June 9, 2015, appellants asserted that Officer Loehmann and Officer
{¶4} On June 11, 2015, the court determined that the affidavits were filed in good faith and that there is probable cause to support the accusations of murder, involuntary manslaughter, reckless homicide, negligent homicide, and dereliction of duty as to Officer Loehmann. The court further found that there is probable cause to support the accusations of negligent homicide and dereliction of duty as to Officer Garmback. Applying State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, the court determined, however, that in order for private citizens to “cause prosecution” through an affidavit filed pursuant to
{¶5} On June 18, 2015, appellants filed an application for a writ of mandamus with this court to compel the Cleveland Municipal Court to issue felony arrest warrants. The parties filed briefs in that original action. On July 10, 2015, after reviewing the record and briefs, this court dismissed the application for the writ of mandamus. In a nine-page opinion, this court held that “mandamus does not lie to correct errors and
{¶6} On July 10, 2015, appellants filed the instant appeal, and assigned the following errors for our review:
Assignment of Error One
The trial court erred when, in lieu of discharging its ministerial duty to forthwith issue a warrant for the arrest of the person charged [with felony crimes] in the affidavit, pursuant to
Ohio Revised Code 2935.10 , the trial court categorized its judgment as advisory in nature and forwarded the judgment that felony charges should be filed against a defendant to city and county prosecutors.
Assignment of Error Two
The trial court erred in its determination that the trial court does not have the option of issuing a warrant in cases initiated by the affidavits of private citizens. This is contrary to
Ohio Revised Code and legal authority.
Assignment of Error Three
The trial court erred in its interpretation of the 2006 amendments to
R.C. 2935.09 , and the effect of said amendments onR.C. 2935.10 . The court‘s interpretation ofR.C. 2935.09 , as amended, eliminates the ability of private citizens to cause prosecution by filing affidavits with the court, in exchange allowing such affidavits to be filed with a reviewing official to determine if probable cause exists and if charges should be filed by a prosecutor.
Assignment of Error Four
The trial court erred in its conclusion that Criminal Rule 4 and
R.C. 2935.10 are in conflict, thereby nullifyingR.C. 2935.10 and the statutory mandate within, which states a trial court shall forthwith issue a warrant for arrest after finding citizen affidavits, which allege felony crimes, contain probablecause, were filed in good faith, and are meritorious.
{¶7} During the pendency of this appeal, the Cuyahoga County prosecutor issued its “Report on the November 22, 2014 Shooting Death of Tamir Rice” (“Prosecutor‘s Report“). This Report, dated December 28, 2015, was posted on the Prosecutor‘s webpage and released to the public. In light of this development, we asked the parties to brief the additional issue of mootness. We accessed this report through the Prosecutor‘s homepage, where it has remained available. We further note that pursuant to
Mootness
{¶8} The Cleveland Municipal Court maintains that the matter is moot, in light of the Prosecutor‘s Report and the grand jury‘s decision declining to issue criminal charges against the officers, and has filed a motion to dismiss the instant appeal. Appellants urge us to apply an exception to the mootness doctrine and order the trial court to issue arrest warrants in this matter.
{¶10} In this matter, because of the Prosecutor‘s Report recommending “against bringing any criminal charges to the Grand Jury [because no] reasonable judge or jury would find criminal conduct” in Officer Loehmann‘s use of deadly force and in Officer Garmback‘s actions, and the decision of the grand jury to not issue any charges, we conclude that this appeal is now moot. These determinations directly conclude that there is no probable cause for criminal charges, thereby rendering moot each of the claims raised herein on appeal.
{¶11} Notwithstanding the release of the Prosecutor‘s Report, appellants argue that the matter is not moot because: (1) the matter is capable of repetition, yet evading court review; (2) the Prosecutor‘s Report is not, technically, a “no bill” and is too ambiguous to render the instant appeal moot; and (3) jeopardy did not attach and, they claim, a new grand jury has convened and is now considering charges.
{¶12} An exception to the mootness doctrine is presented when issues are “capable of repetition, yet evading review.” State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St.3d 165, 527 N.E.2d 807 (1998), paragraph one of the syllabus. The Ohio Supreme Court has limited “this exception [to] exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 2000-Ohio-142, 729 N.E.2d 1182.
{¶13} Appellants argue that the matter is capable of repetition in the future, and may not be subject to review on appeal. Appellants are extremely concerned that a similar fatality may happen in the future and that the citizen-initiated process for commencing a prosecution may be eroded if the prosecuting attorney fails to seek an indictment. It is axiomatic, however, that while all police-involved shootings present devastating losses, both to the families involved and the community at large, any such tragedy must, as a matter of law, be resolved upon its own individual facts. Whether the officer reasonably perceived a threat must be analyzed with regard to the moments in which the weapon is drawn and the moments directly preceding it. Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 406-407 (6th Cir.2007), citing Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.1996). There is no reasonable expectation that these
Ambiguity Argument
{¶14} Appellants next assert that because the prosecutor has issued a report, and not a “no bill,” and did not identify the defendants or the offenses considered, the Prosecutor‘s Report cannot render the claims of this appeal moot.
{¶15} We note, however, that the Prosecutor‘s Report clearly identifies both Officer Loehmann, as the on-duty officer who fired the fatal shot that caused the death of Tamir, and Officer Garmback as the on-duty officer who drove the police cruiser to that fatal confrontation. The remainder of the Prosecutor‘s Report analyzes their actions during that deadly encounter, and ultimately, recommended “against bringing any criminal charges to the Grand Jury [because no] reasonable judge or jury would find criminal conduct” in the officers’ courses of conduct.
{¶16} In light of the foregoing, we reject the ambiguity argument presented herein.
Double Jeopardy
{¶17} Appellants also assert that “[a] new grand jury has convened, so it is wholly possible that the new grand jury, presented with appellants’ opinion, may opt to indict, and therefore, the assertion of mootness appears to be based solely * * * [upon failure] to seek an indictment in good faith.”
{¶18} The question posed within this appeal, however, was whether the Cleveland Municipal Court erred in determining that it lacks authority to issue the arrest warrants
{¶19} Moreover, the contention that a new grand jury has actually convened is outside of our record. In any event, if in fact a new grand jury has convened, then the matter will proceed pursuant to
{¶20} Based on the foregoing, we dismiss this appeal as moot.
{¶21} Appeal dismissed. Motion No. 493020 is granted.
It is ordered that appellee recover of appellants costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cleveland
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR