CLEVELAND, Ohio – A Cuyahoga County grand jury declined Friday to indict an off duty Cleveland police officer who fatally shot and killed Desmond Franklin, 22.
The Ohio Attorney General presented the case involving officer Jose Garcia, who fatally shot Franklin on April 9 while both men were driving on Pearl Road in the Brooklyn Center neighborhood. The grand jury dismissed charges of murder, voluntary manslaughter, aggravated assault, and aggravated assault.
Ohio Attorney General Dave Yost said during a news conference Friday night that Garcia was claiming self-defense and that Ohio law at the time of the shooting required Garcia prove he was defending himself. Garcia had no duty to retire under the law at the time because he was in his car, Yost said.
Yost said Ohio’s Stand your Ground law, enacted Jan. 5, allows prosecutors to prove that a person was not acting in self-defense. He said this will make investigating similar incidents even more difficult.
“It is often difficult to prove a negative and that warning has been shown to be valid in this case,” said Yost.
The shooting sparked protests in Cleveland, including some invoking Franklin’s name during the May 30 protests in downtown Cleveland over Minneapolis police killing George Floyd, and another major protest a week later.
Franklin family attorney Stanley Jackson said he was disappointed with the grand jury’s decision, but they would pursue the case, possibly in a civil court.
“Unfortunately, this is common in America and northeast Ohio, where an officer can kill one of our citizens and get away with it,” Jackson said. “This is a perfect example of why we need to change the judicial system.”
Franklin was an aspiring plumber and father of four. At the time of the shooting, he was released on two separate occasions – one for armed robbery and one for possession of stolen property.
Garcia was discontinued in 2008. Cleveland officials have not released his personnel file at the request of cleveland.com/The Plain dealer the day after the shooting. Deputy Attorney General Dan Kasaris said Garcia had been disciplined three times but did not say why. None of the disciplines were for the use of incidents of violence, Kasaris said.
Cleveland police said in a statement emailed they will begin an internal review of the case to see if Garcia should face discipline.
Yost said the investigation did not seek to identify any civil law issues that could arise from the shooting.
“According to the law, his death is not the result of a criminal act,” said Yost. “However, civil liability is an issue for another day.”
There have been four fatal police shootings in action in Cleveland since the US Department of Justice signed a federal court agreement with the city to reform the police force after years of documented unconstitutional practices, including excessive use of force.
The 2015 Justice Department report also criticized Cleveland police for firing guns at moving cars and drawing guns while responding to nonviolent crimes.
The Ohio Attorney General will also serve as the special attorney in the fatal shooting of 19-year-old Arthur Keith by a Cuyahoga Metropolitan Housing Authority police officer on November 17th.
The Cuyahoga County Sheriff examined Franklin’s shots.
According to Yost, investigators used testimony from Garcia and a 17-year-old boy in Franklin’s car, as well as six security videos from nearby companies, ballistics, and interviews with two other witnesses.
Yost said only Garcia said Franklin had a gun pointed at him. The teenager and the other two witnesses did not see if Franklin had a gun pointed at Garcia, Kasaris said.
Investigators relied on other evidence on the spot, including a bloody gun found on the floor under Franklin’s car seat.
Franklin’s death came shortly after a chance encounter between Franklin, a 17-year-old boy, and Garcia in a supermarket. Garcia was off duty at the time, not wearing a police uniform, and on his way to his shift.
Garcia’s case was not viewed as a shootout as Garcia was off duty and had taken no action as a police officer, Yost said. Instead, prosecutors and investigators reviewed the case like any other citizen, Yost said.
Garcia turned into the parking lot and saw the 17-year-old boy pulling two boxes of Peach Faygo out of a van. Garcia told investigators that he rolled down his window and said to the duo, “This is not nice.”
He said Franklin replied by saying, “Shut up, you want your shot to be shot.”
The teenager told investigators that Garcia pulled down his window and said, “You are a P — y.” Franklin replied, “Brugh, you’re a b — h.”
Kasaris said the teenager gave Franklin a gun to hide. The teenager wrote in a testimony contained in a civil complaint to the Cleveland Office of Professional Standards that Franklin asked about the gun because they felt threatened.
Garcia left the parking lot and turned right on Pearl Road. Franklin drove off on Forestdale and turned in a Wendy’s parking lot. He caught up with Garcia’s car at the intersection of Pearl Road and Forestdale.
When the light turned green, Garcia said Franklin flashed his gun and fired five shots. A bullet hit Franklin in the head and likely killed him instantly, Kasaris said.
Franklin bumped the car into a fence in Riverside Cemetery. The 17-year-old boy tried to run for help but a nearby business owner refused to allow him to call 911. He returned to Franklin’s car and Garcia arrested him.
Garcia called 911 and reported that he believed Franklin or the teenager had “tried to shoot him” and “shoot him”. Officials did not say if anyone shot Garcia.
“He tried to shoot me and I shot back,” Garcia told the dispatchers. Later on on the call, he said to the dispatchers, “I shot back and I think I hit him … The guy pointing at me shot my car.”
Jackson and legal associate Shean Williams previously said an autopsy showed Franklin was shot dead in the temple, which meant he was delighted when he was shot and couldn’t point a gun at Garcia. Yost said the Cuyahoga County Medical Examiner was unable to determine Franklin’s position when he was shot.
“It’s a tragedy that Desmond Franklin is dead,” said Yost. “A young life ended too soon. And I’m sad about it. I pray for consolation for his family and offer their sincere condolences in their grief. “
Read more from cleveland.com:
Black Clevelanders Express Hope Protests Will Bring Real Change: “The World Has Joined”
Witnesses of fatal shots by off-duty Cleveland police officers report to city investigators
Man identified killed by off duty Cleveland police officers
