On Monday morning, numerous news outlets ran stories about Tamir Rice’s family’s wrongful death lawsuit against Cleveland, and Cleveland’s response to it. Much of their coverage, particularly their headlines, suggests that in its “answer” to the Rice family’s complaint, the city is holding Rice himself responsible for the shooting. But what sounds diabolical to the untrained eye—Cleveland is blaming Rice for his own death!—is actually standard language in a case like this, and we shouldn’t let it obscure the bigger injustices at play here.
In New York Magazine, for example:
The family of Tamir Rice—the 12-year-old who was fatally shot by a Cleveland police officer while playing with a toy gun—recently filed a wrongful death lawsuit against the city and the two cops involved in the shooting, Frank Garmback and Timothy Loehmann.
On Friday, Cleveland responded to the lawsuit. Unsurprisingly, the city doesn’t seem eager to take responsibility for Tamir’s senseless death. In a 20-item defense, Cleveland argues that the Rices “injuries, losses and damages … were directly and proximately caused by the acts of the Plaintiff’s decedent (Rice), not this Defendant.” Cleveland also says that the 12-year-old failed to “exercise due care to avoid injury” and blames “the conduct of individuals or entities other than Defendant” for the shooting.
The details of the case are correct. But the story’s headline reads “Cleveland Blames Tamir Rice for His Own Death.” This headline—and those like it—is based upon Cleveland’s response or “answer” to the complaint, but it’s not really accurate, and I’ll tell you why.
In order for me to explain, you’ll have to bear with me as I give you a little civil procedure lesson. It might seem boring, but stick with it.
A complaint is what a plaintiff files to institute a lawsuit. A complaint informs the defendant what the basis of the lawsuit is. The defendant’s “answer” denies the allegations in the plaintiff’s complaint and provides additional facts that constitute defenses to the lawsuit.
These defenses in responses to complaints, known to lawyers as “affirmative defenses,” are fairly standard. Usually, lawyers will include every affirmative defense they can think of, even if the affirmative defense doesn’t necessarily apply, because if you don’t include a particular defense in an answer to a lawsuit, you can’t argue that defense at trial.
So, basically, by listing a bunch of affirmative defenses, a defense attorney is reserving her right to argue a particular affirmative defense later.
Affirmative defense language is generally boilerplate. In a personal injury or wrongful death case such as the Tamir Rice lawsuit, it is pretty standard for an attorney to raise a “comparative negligence” defense as part of the answer she files on behalf of her client, which would generally include the kind of language that has gotten everyone up in arms: that Tamir Rice’s death was “proximately caused by his failure to exercise due care to avoid injury.”
This defense provides that a negligent party should only be liable for the amount of damage that they caused.
I’ll give you an example.
Let’s say Adam and Bob got into a car accident. Adam ran a red light, Bob was talking on his cell phone, and they crashed into one another, resulting in Bob’s death. Adam is probably the more negligent party—after all he ran the red light and killed Bob. Still, Bob shouldn’t have been talking on his phone, and if he hadn’t, perhaps he might have been able to avoid the collision. So Bob’s family sues Adam alleging wrongful death, and Adam raises a comparative negligence defense in response. If a jury agrees that Bob was somewhat negligent—because he was talking on the phone—Bob’s family will only be able to recover damages minus the percent of damages caused by Bob’s own negligence.
So let’s say Bob’s family is asking for $1 million in damages. A jury might find that Adam is 90 percent liable and Bob is 10 percent liable for the accident. So Adam will have to pay a $900,000 judgment to Bob’s family, which is the full million minus 10 percent—the amount assessed for Bob’s liability.
In the Tamir Rice lawsuit, it is likely that Cleveland will argue that Rice was negligent because he removed the orange tip from his toy gun.
Whether or not that’s fair is a question for the jury. (And let me state, for the record, that I don’t believe Tamir Rice was negligent in any way whatsoever. What happened to him was essentially a state-sanctioned drive-by shooting.) But I can’t help but bristle when I see media outlets claiming—without further analysis—that Cleveland is blaming Rice for his own death, because that’s not really the issue here and it’s certainly not what we should be concentrating on.
We need not focus on the quirks of civil procedure and litigation practice. We need to focus on the criminalization of Black bodies. We need to focus on racist-as-all-get-out statements like that of Steve Loomis, who is the head of the Cleveland police department union. Loomis recently said the following, according to Politico:
“Tamir Rice is in the wrong.”… “He’s menacing. He’s 5-feet-7, 191 pounds. He wasn’t that little kid you’re seeing in pictures. He’s a 12-year-old in an adult body.”
That is what we should all be enraged about.
The criminalization of Black bodies allows agents of the state to view 12-year-old Black boys as adult men. It allows the Officer Darren Wilsons of the world to view an 18-year-old Mike Brown as some sort of superhuman demon even though Wilson and Brown were practically the same size.
That’s the real issue. And that’s what we should be focusing on.
By focusing on the ins and outs of tort law—issues of “proximate cause” and “avoidable injuries”—we are losing the plot and wasting emotional energy.
Indeed, Cleveland’s mayor has already apologized for the insensitive phrasing—even though the phrasing is boilerplate—stating that Cleveland was attempting to protect all of their defenses:
“In an attempt to protect all of our defenses we used words and we phrased things in such a way that was very insensitive,” Mayor Frank G. Jackson said. “Very insensitive to the tragedy in general, the family and the victim in particular.”
So, to the media: If you’re going to write about the fact that the law permits Cleveland to point the finger at a victim and say, “It’s his fault, too,” so that he or his family recovers less money in damages as a result, that’s fine. But can you make sure you also point out how incredibly fucked up and indelibly racist it is that the head of the Cleveland police union thinks a 12-year-old Black boy is “menacing”?
Because that’s what’s really scary here. And that’s the sort of thinking that we need to change so that the police stop gunning down Black boys and girls with impunity.