IN THE CLEVELAND MUNICIPAL COU 
CLEVELAND, OHIO 

IN RE:


AFFIDAVITS RELATING To JUDGE RONALD B.  
TIMOTHY LOEHMANN 
FRANK GARMBACK JUDGMENT ENTRY

On June 9, 2015, Dr. Jawanza Colvin, Mr. Bakari Kiwana, Mr. Edward Little,
Jr., Ms. Julia Shearson, Ms. Rachelle Smith, Dr. R.A. Vernon, Dr. Rhonda
Williams and Mr. Joseph Worthy, jointly and severally, filed with the
Cleveland Municipal Court affidavits accusing Cleveland Police Patrol Officers
Timothy Loehmann and Frank Garmback with crimes arising from the
shooting death of 12 year-old Tamir Rice on November 22, 2014, within the
City of Cleveland.

Each of the affiants alleged, in separate parts of their respective affidavits,
that each of the accused, by their actions, committed the following violations
of the law during the events that resulted in Tamir?s death;

Aggravated Murder, in violation of RC. 2903.01

Marder, in violation of R.C. 2903.02

Involuntary Manslaughter, in violation of RC. 
Reckless Homicide, in violation of R.C. 2903.041
Negligent Homicide, in violation of RC. 2903.05
Dereliction of Duty, in violation of RC. 2921.44



Generally, the initiation of criminal proceedings in the State of Ohio is the
preserve of the prosecuting authority within a given jurisdiction. However,
state law does provide an avenue for a private citizen having knowledge of
facts to initiate the criminal process.

RC. 2935.09 provides private citizens the ability to bring forward
accusations by affidavit to cause an arrest or prosecution. As relevant to the
situation now before this bench, that section reads in pertinent part:

As used in this section, ?reviewing official? means a judge of a
court of record, the prosecuting attorney or attorney charged by law
with the prosecution of offenses in a court or before a magistrate, or a
magistrate.



(D) A private citizen having knowledge of the facts who seeks to cause
an arrest or prosecution under this section may file an affidavit
charging the offense committed with a reviewing official for the
purpose of review to determine if a complaint should be filed by the
prosecuting attorney or attorney charged by law with the
prosecutiOn of offenses in the court or before the 

?Knowledge of the facts,? within the meaning of the R.C. 2935.09, clearly
indicates a legislative intent to restrict and define the type of knowledge
which a private citizen must possess before being authorized to sign an
affidavit. South Euclid v. C/apacs (1966), 213 828. The phrase
?knowledge of the facts" has a rather definite meaning in criminal law. In
the general parlance of the court room, it means firsthand knowledge
acquired by a witness through the utilization of one of his five senses (sight,
hearing, smell, taste and touch), that is to say that the witness has
perceived the event, incident, or thing about which he is testifying by seeing,
hearing, smelling, tasting or touching it. True enough, the word
?knowledge? sometimes encompasses information which has been acquired
from others. However, when the phrase ?of the facts" is added. to describe
the type of ?knowledge? required, it would seem that the entire phrase
?knowledge of the facts? was intended to mean factual or firsthand
knowledge acquired through the use of one of the five senses. South Euclid
v. C/apacs (1966), 213 82.

In each of the affidavits filed with the court in this matter, the affiants
related that they had the opportunity to view the surveillance video taken at
the time of the complained of event. They each reported that they relied
upon their review of the surveillance video to provide them with, ?knowledge
of the subsequent events from one or more of [their] five natural senses.?
Finally, every affiant indicated that they had attached a copy of the video
relied upon, in two forms, to their affidavit.

The video in question in this case is notorious and hard to watch. After
viewing it several times, this court is still thunderstruck by how quickly this
event turned deadly. The relevant portion covers 18 seconds immediately
preceding the point where Tamir Rice suffers the wound, doubles-op and
falls to the ground. On the video, the Zone Car containing Patrol Officers
Loehmann and Garmback is still in the process of stopping when Rice is shot.

Following the shooting, four additional minutes pass, during which neither
officer approaches Tamir as he lies wounded on the ground. At close to four
minutes, a young lady, who news reports have since identified as Tamir?s

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sister arrives on the scene and is restrained from going to her brother?s side.
Nearly eight minutes go by before paramedics arrive at the location. During
that same time, approximately six other members of the Cleveland Division
of Police join the first two and appear on the video.

It is difficult to discern, because of the quality of the tape, what, if any, first
aid anyone renders to Rice during these eight minutes. Nearly fourteen
minutes ultimately expire between the time that Tamir is shot and the time
that he is removed from the park.

The video depicts Rice approaching the Zone Carjust as it pulls into the park
but it does not appear to show him making any furtive movement prior to,
or at, the moment he is shot. Again, because of the quality of the video,
the young man?s arms are barely visible, but they do not appear to be raised
or outstretched. In the moments immediately before, and as the Zone Car
approaches, the video does not display the toy gun in Tamir?s hands. There
appears to be little if any time reflected on the video for Rice to react or
respond to any verbal or audible commands given from Loehmann and
Garmback from their Zone Car between the time that they first arrived and
the time that Rice was shot. Literally, the entire encounter is over in an
instant. .

Beyond the videos presented as exhibits, each affidavit sets forth the
statutory language of each offense alleged. It is unquestionably sufficient to
charge felony crimes in the words of the statutes. Crim.R. 7(8) states in
part:

The indictment shall contain a statement that the accused has
committed some public offense therein specified. Such statement may
be made in ordinary and concise language without any technical
averments or any allegations not essential to be proved. It may be in
the words of the applicable section of the statute as long as the words
of that statute charge an offense, or in any words sufficient to give the
accused notice of all the elements of the offense with which he is
charged. State v. White?Barnes, 1992 WL 368844 (Ohio App. 4 Dist). 

Logically speaking, affidavits filed that allege misdemeanor violations should
not be subject to stricter standards of scrutiny than indictments charging
felonies. State v. White?Barnes, 1992 WL 368844 (Ohio App. 4 Dist).
Therefore, it is permissible for those, too, to be framed in statutory
language. 

None of the affidavits in this matter provide any other factual basis to justify
their requests for the issuance of the respective complaints. In order for this

court to be in the position to adequately assess the validity of the .
accusations found therein, those affidavits must be reviewed to determine if
they present, at minimum, the three requirements essential for issuance of a
criminal complaint: 1) they must set forth a written statement of facts that
constitute the essential elements of the offense charged. The essential
elements of a given offense are those facts that must be proven to obtain a
conviction, 2) they must state the numerical designations of the Revised
Code Sections allegedly violated, and 3) they must be made under-oath
before a person authorized to administer oaths. State v. Jones (2011) 2011
WL 4553117, State v. Patterson (1988), 1998 Ohio Lexis 2289.

Upon completion of this review, the court finds that each of the documents
before it meets these minimum requirements.

According to the statute, once the reviewing official is presented the
affidavits called for by R.C. 2935.09, the official is required to make a
determination as to the appropriate actions needed to substantiate or
debunk the allegations contained in each document.

At the beginning of this review, this court is mindful that despite any
conclusions it draws from the evidence found in the affidavits, its role here is
advisory in nature. The actual issuance of misdemeanor complaints by the
City of Cleveland, following the court?s review, may be based upon the
court?s determination that such charges should issue. That decision is
completely within the discretion of the City?s prosecuting authority.

The City Prosecutor may also decide to issue felony complaints in the
Cleveland Municipal Court based upon his acceptance of the court?s
determination that there is probable cause .to believe certain accusations
found in the affidavits posited against these Patrol Officers. However, those
felony charges and perhaps some, or all, of the misdemeanor charges must
ultimately be delivered to the Cuyahoga County Prosecuting Attorney and,
will then be subject to his discretion, and resolved in the Cuyahoga County
Court of Common Pleas.

Resort to this statutory process does not provide an ?end around? either the
City or the County Prosecutor. The statute provides this court the ability to
review affidavits filed by private citizens for sufficiency and good faith. It
utilizes the standard of probable cause, the iowest standard of proof required
in any criminal proceeding for the conduct of that review. That statutory
schema does not, however, provide the court the ability to require that its
determination be substituted for the discretion of either the City or the
County Prosecuting authorities.

In State ex rel. Bey/en v. Harmon, 107 Ohio St.3d 370, 2006*Ohio?7, 839
934, 3L6 (per coriam), the Supreme Court of Ohio determined that
the procedure calling for a probable cause hearing tinder Crim.R. was
applicable where affidavits are filed with a valid criminal complaint
under Crim.R. 3. It concluded that Crim.R. does not apply where no
complaints and (as here) only affidavits are filed under'R.C. 2935.09.
Boylen, supra, at ii 9 10.

In point of fact, close examination of the applicable statues and criminal
rules reveals that the trial court does not have the option of unilaterally
issuing a warrant on its own initiative in these private citizen initiated cases.

Prior Version of R.C. 2935.09

R.C. 2935.09 provides for the initiation of a criminal action by a ?peace
officer? or ?private citizen." The statute was revised in 2006.

The prior version stated:

?In all cases not provided by sections 2935.02 to 2935.08, inclusive, of the
Revised Code, in order to cause the arrest or prosecution of a person
charged with committing an offense in this state, a peace officer, or

a private citizen having knowledge of the facts, shall file with the judge or
clerk of a court of record, or with a magistrate, an affidavit charging the
offense committed, or shall file such affidavit with the prosecuting attorney
or attorney charged by law with the prosecution of offenses in court or
before such magistrate, for the purpose of having a complaint filed by such
prosecuting or other authorized attorney.?

In State v. Jones, 2011 WL 4553117 (Ct. App. 11th Dist. Portage County
2011) the court, interpreting (the prior version) of R.C. 2935.09, explained
the statute as follows:

police officer or a private citizen may employ either of two
methods ?in order to cause the arrest or prosecution of a person charged
with committing an First, the complainant may allege that an
offense has been committed by filing an affidavit with a judge, clerk of court
of record, or magistrate. Second, the complainant may file such an affidavit
with a prosecuting attorney. In the former scenario, the affidavit is
the charging instrument and, in effect, becomes the complaint. Under the
latter scenario, the prosecuting attorney files a formal complaint and
attaches the affidavit thereto.? Patterson at citing 2 Katz Giannelli,
Criminal Law (1996) 2?3, Section 35.3.

Under the prior version of the statute, there were two ways that a
prosecution could be initiated by a private citizen; the first method was by
the filing of an affidavit with a judge or clerk of a court of record, and the
second was by filing an affidavit with the prosecuting attorney who, in turn,
would file a complaint. State v. McNeese (Oct. 23, 1995), 12th Dist. No.
1995 Ohio App. LEXIS 4665, *14, 1995 WL 617589

citing State v. Maynard (1964), 1 Ohio St.2d 57, 58~59, 203 332.

Current Version of R. C. 2935.09

The General Assembly amended R.C. 2935.09, effective June 30, 2006.
No. 214, 151 Ohio Laws, Part 5973. The current version of the
statute states, in pertinent part:

As used in this section, ?reviewing official? means a judge of a court of
record, the prosecuting attorney or attorney charged by law with the
prosecution of offenses in a court or before a magistrate, or a magistrate.

(B) In all cases not provided by sections 2935.02 to 2935.08 of themRevised
Code, in order to cause the arrest or prosecution of a person charged with
committing an offense in this state, a peace officer or
a private citizen having knowledge of the facts shall comply with this section.

(C) A peace officer who seeks to cause an arrest or prosecution under this
section may file with a reviewing official or the clerk of a court of record an
affidavit charging the offense committed.

(D) A private'citizen having knowledge of the facts who seeks to cause an
arrest or prosecution under this section may file an affidavit charging the
offense committed with a reviewing official for the purpose of review to
determine if a complaint should be filed by the prosecuting attorney or
attorney charged by law with? the prosecution of offenses in the court or
before the magistrate. 

A comparison of the two versions shows that, under the amended statute,
the ability of a private citizen to ?cause prosecution? by filing an affidavit is
now limited. Under the prior version, either a peace officer or a private
citizen may file an affidavit with the judge or a clerk of court to commence
prosecution. State v. Hooper (1971), 25 Ohio St.2d 59, 61, 267 285.
Under the current version of the statute, a ?peace officer? may still ?cause
prosecution? by filing an affidavit with a ?reviewing official? (Le, a judge or
a prosecutor) or the clerk of a court. R.C. However, a private
citizen, to ?cause prosecution,? now must file an affidavit with a ?reviewing
official" for the purpose of review to determine if a complaint should be
filed by the prosecutor. R.C. 

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Regarding the ability of a private citizen to initiate the criminal process, R.C.
2935.09 sets forth the ?what.? R.C. 2935.10 sets forth the ?how.? The
Ohio Supreme Court has consistently held that R.C. 2935.09 does not
mandate prosecution of all offenses charged by affidavit. State ex rel.
Boy/en v. Harmon, 107 Ohio St.3d 370, 2006?Ohio?7, 839 934, 31

6 (per curiam). R.C. 2935.09? ?must be read in par/ materia with R.C.
2935.10, which prescribes the subsequent procedure to be followed.? Id.

Under R.C. 2935.10 (A) in those cases where the charge that the private
citizen seeks to have initiated is a felony, the statute provides that upon a
finding of probable cause, the reviewing official shall issue a warrant for the
arrest of the person charged in the affidavit, unless the hearing official finds
that the affidavit ?was not filed in good faith." The language used, ?shall,? is
mandatory, and would seem to suggest no discretion in the trial court, once
a determination of both probable cause and good faith is made.

However, the statute?s mandatory requirement that the trial court issue a
warrant solely based upon the existence of the facts contained in an affidavit
puts the statute at odds with the provisions of Crim.R. 4 (A). Crim.R. 4
governs criminal warrant, summons and arrest procedures. It reads,
as relevant to this discussion:

(A) Issuance

(1) Upon complaint. If it appears from the complaint, or from
an affidavit or affidavits filed with the complaint, that there is
probable cause to believe that an offense has been
committed, and that the defendant has committed it, a
warrant for the arrest of the defendant, or a summons in lieu 
of a warrant, shall be issued by a judge, magistrate, clerk of
court, or officer of the court designated by the judge, to any
law enforcement officer authorized by law to execute or serve
it.

Such conflicts between statutes and the Supreme Court of Ohio?s Roles of
Court are subject to a provision of the Ohio State Constitution. Article IV,
Section 5 (B) of the Ohio Constitution provides, in pari materia, that, ?All
laws in coriflict with such rules shall be no longer in effect after such rules
have taken effect.? Therefore, the warrant provision of R.C. 2935.10 (A) is
superseded by Crim.R. The rule requires that there be a complaint,
(or a complaint accompanied by an affidavit or affidavits) filed with the court

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before a warrant may issue, and is now the only legitimate vehicle by which
a felony warrant can result.

Therefore, pursuant to obligation imposed upon this court by R.C. 2935.09
with regard to review of the affidavits presented, the court determines the
following:

1. Identical accusations concerning six criminal violations are made by
all of the affiants against each of the accused in the various affidavits
filed with the court. For purposes of disposition, the identical criminal
charges made against each accused by each affiant are consolidated
according to the respective criminal charges. All affidavits alleging
allegations of a specific criminal violation are consolidated into one
allegation and disposed of accordingly based upon the court?s review
of the conduct of each accused.

2. As such, the court further finds that all of the affidavits presented
were executed in good faith.

3. With regards to the accusation of Aggravated Murder, in violation
of R.C. 2903.01, against the accused, FRANK GARMBACK, the court
finds that the accusation lacks probable cause.

4. With regard to the accusation of Aggravated Murder, in violation of
R.C. 2903.01, against the accused, TIMOTHY LOEHMANN, the court
finds the accusation lacks probable cause.

5. With regard to the accusation of Murder, inviolatioo of R.C.
2903.02, against the accused, FRANK GARMBACK, the court finds the
accusation lacks probable cause.

6. With regard to the accusation of Murder, in violation of R.C.
2903.02, against the accused, TIMOTHY LOEHMANN, the court finds
that probable cause exists for the accusation.

7. With regard to the accusation of Involuntary Manslaughter, in
violation of R.C. against the accused, FRANK GARMBACK,
the court finds the accusation lacks probable cause.

8. With regard to the accusation of Involuntary Manslaughter, in
violation of R.C. 29030403), against the accused, TIMOTHY
LOEHMANN, the court finds that probable cause exists for the
accusation.

9. With regard to the accusation of Reckless Homicide, in violation of
RC. 2903.041, against the accused, FRANK GARMBACK, the court
finds the accusation lacks probable cause.

10. With regard to the accusation of Reckless Homicide, in violation of
RC. 2903.041, against the accused, TIMOTHY LOEHMANN, the court
finds that probable cause exists for the accusation.

11. With regard to the accusation of Negligent Homicide, in violation
of RC. 2903.05, against the accused, FRANK GARMBACK, the court
finds that probable cause exists for the accusation.

12. With regard to the accusation of Negligent Homicide, in violation
of RC. 2903.05, against the accused, TIMOTHY LOEHMANN, the court
finds that probable cause exists for the accusation. .

13. With regard to the accusation of Dereliction of Duty, in violation of
RC. 2921.44, against the accused, FRANK GARMBACK, the court finds
that probable cause exists for the accusation.

14. With regard to the accusation of Dereliction of Duty, in violation of
RC. 2921.44, against the accused, TIMOTHY LOEHMANN, the court
finds that probable cause exists for the accusation.

Having completed its review of all of the affidavits in this matter, pursuant to
the requirements of RC. 2935.09, this court determines that complaints
should be filed by the Prosecutor of the City of Cleveland and/or the
Cuyahoga County Prosecutor, in re: the accusations levied in the said
affidavits against the accused, Frank Garmback, in re: Negligent Homicide
and Dereliction of Duty. This determination shall be communicated and
forwarded to both prosecutors? offices immediately contemporaneous with its
announcement.

Having completed its review of all of the affidavits in this matter, pursuant to
the requirements of RC. 2935.09, this court also determines that complaints
should be filed by the Prosecutor of the City of Cleveland and/or the
Cuyahoga County Prosecutor, in re: the accusations levied in the said
affidavits against the accused Timothy Loehmann, for Murder, Involuntary
Manslaughter, Reckless Homicide, Negligent Homicide and Dereliction of
Duty. This determination shall be communicated and forwarded to both
prosecutors? offices immediately contemporaneous with its announcement.

To reach these determinations, this court applies the standard of probable
cause, more than a mere sospicion but less than the quantum of
evidence required for conviction. The prosecutors, however, are ethically
required to decide whether, applying the highest standard of proof required
by law, to wit: beyond a reasonable doubt, it is more likely than not that a
reasonable trier of fact will hold the individuals accused in these affidavits
accountable for these, or any other crimes that might be alleged. This court
reaches its conclusions consistent with the facts in evidence and the
standard of proof that applies at this time.

IT IS SO ORDERED.

WW

Judge Ronald B. Adrine

 

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