Federal appeals court to hear CMPD shooting case
03/19/2014 7:14 PM
03/19/2014 8:48 PM
A federal appeals court will hear arguments Thursday that could swing a long-running lawsuit involving a Charlotte-Mecklenburg police officer who shot a 15-year-old coming to the aid of his injured mother.
City of Charlotte attorneys have sought “qualified immunity” for Officer Matthew Wilson and his decision in October 2010 to open fire on Jeffrey Green. The Charlotte teenager was hit twice during a late-night confrontation with the officer after his mother was stabbed by her boyfriend. Green survived his injuries
No criminal charges were filed and Wilson remains on the force. But Green’s mother, Valinda Streater, sued Wilson and the city in 2011, charging negligence, emotional distress and violation of constitutional rights, among other allegations.
The first trial before U.S. District Judge Max Cogburn ended in a hung jury, with a 5-3 vote in favor of Wilson, according to court records.
Shortly before the second trial was to begin last summer, Wilson’s defense team requested qualified immunity. It shields police and other government workers from constitutional claims if their actions do not violate “clearly established law.”
Cogburn, using blunt language during oral arguments, refused. He said the decision on whether the officer’s use of lethal force was justified should be decided by a jury, not a judge.
Moreover, Cogburn said he feared that giving Wilson immunity risked setting up a legally protected “kill zone” for CMPD officers.
“It’s whether or not police officers have the absolute right, under these circumstances, to shoot,” Cogburn said in August. “And I can tell you, gentlemen, that’s not something that anybody wants in this town or this country, to say that if a fellow has a knife and he’s 30-something feet away, gun him down, because you have qualified immunity given to you by the courts.”
The Fourth Circuit Court of Appeals in Richmond will hear the city’s immunity appeal during a morning session at the College of William & Mary. If the judges back Cogburn, the case likely will re-tried in Charlotte this year. A grant of immunity would deal a significant blow to Streater’s case.
The hearing comes two months after a grand jury indicted a Charlotte-Mecklenburg police officer for his use of deadly force. The voluntary manslaughter case against Randall Kerrick marks the first time in more than 30 years than a CMPD officer faces criminal charges in connection with an on-duty shooting.
Due in part to that case, the Charlotte City Council agreed to toughen its citizen review board, which hears public complaints about how the police do their jobs.
Reasonable or not?
At issue in Wilson’s civil case is whether the officer acted reasonably when he fired his weapon Oct. 16, 2010.
That night, Streater had told her boyfriend he had to move out. The man returned to the home later, kicked down the door and stabbed her in the side with a knife. (He was arrested the next day and charged with assault with a deadly weapon.)
Wilson, a five-year police veteran at the time and a former Marine, was the first officer to respond. Streater testified in the first trial that she told Wilson her boyfriend had stabbed her and then driven off in his car. Wilson testified he started walking to Streater’s house to check on her parents, based in part on the belief that the suspect was still in the immediate area.
Jeffrey Green heard about his mother’s stabbing from a friend and had hurried to the house. There, he picked up a kitchen knife. He then walked down the street looking for his mother, cursing and shouting as he went.
The officer and the son soon met. Wilson pulled his weapon and ordered the teen to stop and drop his knife; he testified that he had not heard police reports that the stabbing suspect had already left the area. He also said he did not hear Streater’s screams not to shoot her son, though another officer on hand testified that he did.
Wilson also said he did not see Green drop his knife. Police estimate that the teen was almost 32 feet away when Wilson fired twice. After a pause, he fired two more shots. Wilson later said he believed that Green posed an immediate threat to him and the people nearby.
In their written immunity arguments to the appeals court, city attorneys Daniel Peterson, Harcourt Fulton and Mark Newbold said their client acted reasonably given “the rapidly evolving and chaotic fact pattern unfolding before him.”
“Officer Wilson was confronted with making a decision in mere moments over whether to shoot a non-compliant individual, holding a knife, verbalizing aggression while approaching a stabbing victim,” they say. “No case law ... clearly establishes the constitutional right of (Green) to not have deadly force used upon him in those circumstances.”
Streater’s attorneys, the father-son team of Fred and Will DeVore, argue in part that Green was too far away to pose an imminent threat with a knife. At more than 30 feet, according to an expert who testified in the first trial, “there were no circumstances that would ever justify” Wilson’s use of his revolver.
Likewise, in denying qualified immunity to Wilson, Cogburn said jurors could reasonably decide that Green “was too far away to justify Officer Wilson’s application of deadly force.”
Speaking to the attorneys last summer, the judge was more direct.
“Still don’t know what a jury may find,” he said. “But it’s not a situation where an officer can go out there confidently firing his weapon, and knowing that under those circumstances he’s safe from any kind of lawsuit.”
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