Guns and grand juries up for reform
- Published: August 25, 2016
JUSTICE FOR JOHN CRAWFORD?
This is the fifth in a series of articles focused on the 2014 police shooting of John Crawford III and its aftermath.
It’s been two years since John Crawford, a 22-year-old black man standing in the Beavercreek Walmart, was shot and killed by police while, according to a store video, talking on the phone and holding at his side what turned out to be an airgun.
The event sparked anger and protest from many in Yellow Springs and beyond, and that anger intensified a month later after a grand jury declined to bring charges against the officer who shot Crawford. That jury was following a familiar pattern — in the seven years ending in 2011, grand juries pressed charges against police in only 41 instances of the 2,600 times that police used lethal force against civilians, according to a Dec. 7, 2014 New York Times article.
“Overall, there’s a systemic failure to hold officers responsible for these shootings,” said Vandalia attorney Michael Wright, who is representing the family of John Crawford, in an interview this week.
It seems timely to ask, has anything changed?
In Ohio, the public outcry following the police shootings of Crawford and, a few months later, Tamir Rice of Cleveland, as well as the growing national dialogue on policing and criminal justice, has led to a variety of recommendations for structural reform in the criminal justice system, with some of the recommendations already implemented. Leaders formed task forces to look closely at such issues as the grand jury system, police hiring and training, police use of force and police/community relations, among others.
Most of those groups have now completed their work and made recommendations for change.
In the final two articles in our series, “Justice for John Crawford?” the News will examine some of those efforts and recommendations, with this article focused on grand jury reform and airgun marketing. Next week’s concluding piece will include looks at new state standards for Ohio’s nearly 1,000 police departments, new hiring and training guidelines and new curricula, along with final thoughts from local activists and the Crawford family.
Will reforms matter?
In January of this year, Ohio Chief Justice Maureen O’Connor formed a task force to look into possible grand jury reforms.
Grand juries, made up of nine randomly selected citizens, hear a prosecutor present the evidence of a case to decide whether to press charges, but do not hear an opposing attorney question the prosecutor’s case. The proceedings are conducted in secrecy.
Following the Crawford death, the Greene County Special Grand Jury, which consisted of five men and four women, took only two days to determine that they would not bring the charges of murder, reckless homicide or negligent homicide against Officer Sean Williams, the officer who shot Crawford. According to a Sept. 24, 2014, story in the Dayton Daily News, the jurors in that time heard from 18 witnesses and viewed store videos, as well as hearing from Mark Piepmeier of Hamilton County, the special prosecutor on the case.
Several months later, a grand jury in Cleveland also declined to bring charges against the officers who shot 13-year-old Tamir Rice, who had been holding a toy gun in a Cleveland park when he was killed by police.
The public outcry in Ohio following the Crawford and Rice deaths, along with the growing national discussion on police and criminal justice, led to Governor Kasich’s forming the Ohio Task Force on Community-Police Relations, with that group recommending an examination of the grand jury system, sparking a second task group focused on that issue. According to the final report of that group, released in July 2016, “recent state and national events have raised questions as to whether the grand jury system can be improved and if there are additional steps that should be taken to increase the public’s confidence, understanding and trust in the system.”
The task force was composed of 18 members, including judges, a prosecutor, a police chief, state senators and representatives, two law professors and several community members.
“It was a group of people from different constituencies with different ideas,” said Ric Simmons, a task force member and professor at the Moritz College of Law of Ohio State University in an interview this week. “We had to compromise, but I think it was a good experience for everyone.”
Simmons had previously written extensively on the need for more transparency in the grand jury process.
The group met for four-hour sessions monthly from February to June, with part of that time in small working groups, according to Simmons.
In July the task force released its final report identifying 10 recommendations for grand jury reform, with two likely to be considered the most substantial, according to Simmons.
The first substantial recommendation would grant the Ohio Attorney General’s Office the exclusive authority to investigate and prosecute cases of police use of lethal force.
Currently, the county prosecuting attorney is charged with investigating and prosecuting instances of police lethal use of force in most cases (although a special prosecutor from Hamilton County presided over the Crawford jury). However, that practice means that “county prosecuting attorneys are called upon to investigate the very same police officers they work with on a daily basis involving the reasonableness of the most difficult decision those officers make: whether to use lethal force,” according to the report.
The recommendation to give the Ohio Attorney General’s office the authority to prosecute instead of local prosecutors is a good one, according to Vandalia attorney Wright, who is representing the family of John Crawford in a law suit.
“Taking it outside of the hands of the local prosecutor is a start,” Wright said in an interview week. However, he still has concerns that even if prosecutors and police don’t know each other personally, they still tend to see their interests as aligned.
Local attorney Laura Curliss, who has studied the task force recommendations, also sees the change as a good one.
“It’s a very positive change,” she said. “It make sense to remove the local prosecutor.”
The second most significant recommendation was “the most contentious” of the 10, according to Simmons, who sat in the small group that crafted this recommendation. Specifically, it would allow a “limited release” of the record of grand jury proceedings (although not deliberations) as compared to the current practice of total secrecy in grand jury proceedings.
The task force recommended that in cases in which no charges were brought against police, any person could file a written petition seeking the release of all or part of the grand jury records. However, as opposed to current public records requests in which no reasons for the request need to be stated, the new procedure requires that the petitioner clearly state the reasons for the request and why “public interest in granting in disclosure and transparency” outweighs the presumption of secrecy. A court hearing on the request would then be scheduled, and the court would determine if the public disclosure is justified.
Some in the working group wanted no changes to current practice of complete secrecy and some wanted complete transparency, so that the final result reflects considerable compromise, according to Simmons.
“We were happy to get this,” he said.
Progressive critics of the recommendation worry that the vague language of “public interest” needed to compell the court to release information could undermine this reform. This week Simmons acknowledged that he shares the concern, but believes that in highly publicized instances, such as those involving John Crawford and Tamir Rice, a judge would have a hard time ruling that some transparency is not in the public interest.
“It will mostly apply to bigger cases,” he said.
Wright of Vandalia also sees the change as a good one, stating that “any transparency is good.”
And to Curliss, who would like to see more transparency, “it’s a step in the right direction, but doesn’t go far enough.”
Other task force recommendations include enhancing jurors’ and citizens’ understanding by creating an informational video and brochure; providing jurors with a written copy of the judge’s instructions for the jury; amending the judge’s instructions to emphasize the group’s independence; increasing uniformity in the production of grand jury records; and having the Ohio Supreme Court work with other justice groups to create new outreach and eductional opportunities.
While the task force has finished its charge, the Ohio Supreme Court and Ohio legislature need to agree to change sections of the Ohio Revised Code and Criminal Statutes before the changes can be enacted. Wright stated that he’s skeptical because he hasn’t seen any changes yet, and Simmons also expressed concerns there are still significant obstacles to the recommendations becoming law.
But he believes if the changes are moved forward by Ohio legislators and the court system, they could make a difference in a grand jury system that has lost the trust of much of the public.
“I think these changes could actually help restore some of that faith,” he said.
Crawford bill stalled
The Crawford tragedy also brought to light the potentially lethal confusion created by the marketing of pellet and BB guns.
The gun that John Crawford was holding by his side when police shot him was a Crosman MR-177 Tactical Rifle, a pellet gun that was sitting on a shelf in the Beavercreek Walmart Sports Equipment section. Actual firearms, which the store also sells, are locked away in a glass case. A firearm uses an explosion of gunpower to propel a bullet, making it far more lethal than a pellet or BB gun, which use compressed air to shoot a metal pellet. Pellet and BB guns, which are used for target practice, hunting and pest control, are rarely lethal to humans.
According to Walmart store videos, the pellet gun picked up by Crawford had been unwrapped from its packaging and left on the shelf earlier in the day by an unknown shopper, after which several other shoppers had picked up the gun and handled it. But only Crawford picked it up and carried it with him through the store as he talked on the phone, sometimes holding it by his side and occasionally swinging it over his shoulder, according to shopper Ronald Ritchie in the Bureau of Criminal Investigation, or BCI, report. Ritchie, a former Marine, believed the weapon was an assault rifle and reported in his 911 call that a black man carrying an assault rifle was pointing it at people in Walmart. The pellet gun was intended to look real — in an Amazon review by a consumer, the consumer stated that the MR-177 was “one of the few that actually looks like a military assault rifle.”
Officer Sean Williams, who shot Crawford, also believed the gun to be an assault rifle, and that his life, and the life of other shoppers, was in danger, according to his statement to the BCI. And several other Beavercreek officers who arrived on the scene after Crawford was shot also believed the gun to be real, noting that it didn’t have the orange markings that would signify it was a “toy gun.”
The police officers who expected orange markings on the pellet gun to distinguish it from “real” guns were mistaken, however. While toy guns and airsoft guns, which shoot plastic pellets, are required to have distinctive orange markings to make clear that they are toys, pellet and BB guns, collectively called airguns, do not in most states require special markings.
The increasingly realistic look of airguns, and the resulting confusion by police who mistake them for firearms, has led to more tragic deaths besides that of Crawford. According to the Washington Post data base of police shootings of civilians, so far this year, 22 people holding airguns were killed by police who thought that the weapons were firearms. And in Ohio, four people holding or pointing airguns have been killed by police this year.
Some states and countries are taking note of these tragedies and trying to address them. California in 2014 became the first state to require that airguns be marked by bright colors to distinguish them from firearms, months after police shot and killed a 13-year-old boy holding a pellet gun. In recent years Canada and Scotland passed legislation requiring airgun owners to go through similar checks and regulations as owners of firearms.
In the United States, 25 states have no regulations regarding airguns, and Ohio is among those states. However, following the deaths of Crawford and Rice, in 2015 Ohio Representative Alicia Reece (D) introduced HB 16 (“John Crawford’s bill”) that would require airguns sold in Ohio to be marked by bright colors or not sold at all.
“The deaths of John Crawford and Tamir Rice should never have occurred,” she said when presenting the bill in May 2015.
However, the bill has been stalled in the State Government Committee since then, according to Reece’s aide Iyadeh Davies last week.
“We’re still trying to push the bill. We are definitely still fighting for it,” he said.
Reece was not available for comment.
In a phone interview Wednesday, Representative Rick Perales said it’s not surprising that the bill is still in committee, as only a small percentage of bills introduced make it to the floor for a vote.
Regarding his position on the bill, Perales, who sits on the committee, said that while he believes in Reece’s good intentions, he doesn’t support the bill because he worries that marking airguns would further undermine public safety. Bright colors could be removed from airguns, or added to firearms, causing possibly lethal confusion.
“I don’t see how public policy can affect this situation,” he said. “I don’t think there’s a quick fix.”
However, Perales said his mind could possibly be changed if he hears further testimony on the bill.
Crosman Industries, the manufacturer of the gun Crawford was holding and the largest airgun manufacturer in the country, did not return a request for comment on why airguns don’t have markings that distinguish them from firearms.
The tragedies sparked by confusing airguns with firearms will probably increase. Business is booming in the airgun industry, according to Sue Smith of Airgunner Magazine in an interview last week. Gun enthusiasts are increasingly turning to airguns rather than firearms, or adding airguns to their gun collections, because the cost for firearm ammunition has increased substantially in recent years, while ammunition for BB and pellet guns remains inexpensive, she said.
Immediately after the Crawford death, the Beavercreek Walmart took its airguns off the shelves, according to a Oct. 7, 2014 Dayton Daily News article. Last week the airguns were still not on the shelves and a Walmart salesman said that airguns are no longer being sold in the store, but directed other questions to corporate Walmart. The corporate headquarters did not respond to a request for information on the store’s current practices regarding marketing airguns, as well as its country-wide practice.
However, 24 varieties of airguns were visible on the shelves at the Progress Blvd. Walmart store in Xenia last week. The package of one of the guns had been torn open and part of the weapon was visible.