So if it were an adult carrying a gun in the park, given the open carry law there is no reason to presume criminal intent. If it is a child carrying the gun, there is no reason to treat the case as being threatening in the way that an adult with a gun would be. The officers' defense is that they thought the child was an adult, and that the child appeared to draw the firearm. That may well be true.
However, that's odd: normally the defense is not presented to the grand jury. Normally the grand jury would hear: the child wasn't breaking any laws, even if the child looked like an adult the pistol they were carrying might well have been legal under the law, and yet the child was shot dead so immediately that the shooter's judgment is unlikely to meet the rational-man test. That would get you charges, and you'd work out at trial whether the defense was sufficient to find that the accused were not guilty of those charges.
It's going to be hard to convince people that this isn't a rigged game when the standards are so different. You can say that it's about the law enforcement system protecting its members and not about race, maybe, by pointing at the Waco shootout as evidence that being white doesn't always help you much: there the police shot at least four of the nine dead with rifles, but the only people facing indictment are bikers whom the DA apparently can't tie to any specific act of violence at all. The system just doesn't work when the police are behind the trigger.
Still, this was a child.
UPDATE: Allahpundit reminds me of why this seemed familiar to me:
But that’s half the story. The other half is the fact that the county prosecutor, Timothy McGinty, extended these two cops the same exceptional courtesy that Darren Wilson received in the shooting of Michael Brown — namely, he presented all the facts to the grand jury instead of only those facts most beneficial to the prosecution’s side. That’s good procedure, as it means someone who’s likely to be found not guilty at trial can go free sooner due to lack of probable cause. Wilson, who was cleared by Obama’s DOJ in the Brown shooting, is a perfect example. But only a very few lucky souls, usually police officers facing high-profile charges of excessive force, seem to benefit from that sort of prosecutorial diligence.At the time, I remember saying that this is what we should always do -- and that the shame was that we so rarely do it. How many of those Waco indictments would have been thrown out if the prosecutor presented the full facts (such as, for example, the fact that they apparently have no idea precisely who shot anyone)?
It's hard to endorse the standard if it is not anything like evenly applied.