Crime & Courts

Lawsuit challenges 2012 fatal shooting by Charlotte police

As a nationwide debate on police use of deadly force continues to unfold, a new federal lawsuit in Charlotte accuses two officers of escalating a confrontation with a mentally ill man, then unnecessarily opening fire.

Clay McCall, 26, died Sept. 14, 2012, after being shot twice in the garage of his grandmother’s Ballantyne home.

Charlotte-Mecklenburg police say McCall, who had a history of mental illness and violence, was agitated, disoriented and uncooperative. They say the former Myers Park High student charged three Charlotte-Mecklenburg Police Department officers with a pair of garden shears.

One officer, John Galland, fired at McCall with his Taser but missed. Another, Ole Swenson, opened fire with his handgun. The Mecklenburg County district attorney’s office later said Swenson acted within the law.

But Charlotte attorney Matt Newton, the dead man’s brother, said McCall had been calm and cooperative that morning in his dealings with police and was fatally shot despite posing no threat to the officers.

Newton’s complaint mentions the garden shears in passing but omits that McCall shot and killed his father in 2006. Afterward, McCall spent time in jail and mental institutions before later pleading guilty to voluntary manslaughter. (Psychiatric reports included in court documents said McCall’s father had been abusive.)

On Friday, at the city’s request, the case was moved to federal court and assigned to U.S. District Judge Frank Whitney.

Newton, who did not return phone calls or emails Monday, filed his complaint Sept. 30 against Swenson, Galland, Police Chief Rodney Monroe and the city and county governments. He accuses the defendants of wrongful death and negligence and has called for a jury trial.

In his reply to the lawsuit, Assistant City Attorney Daniel Peterson said the allegations are unfounded. He declined comment Monday.

The complaint surfaces amid sweeping demonstrations across the country protesting police-related deaths in Ferguson, Mo.; Cleveland and New York City.

This week, the nation’s attention may turn to Charlotte. On Thursday, the first Charlotte-Mecklenburg police officer accused in connection with an on-duty shooting death in at least 30 years makes his first appearance in court.

Randall “Wes” Kerrick is charged with voluntary manslaughter in the September 2013 death of Jonathan Ferrell. Ferrell, who was unarmed, was shot 10 times.

‘Calm and comfortable’

According to Newton’s lawsuit, McCall had moved into his grandmother’s garage a few days before his death. After being released from jail, he had been homeless and had made numerous attempts over the previous six months to be placed in a halfway house.

According to police reports at the time, the 86-year-old grandmother had locked McCall out of her home, saying she could not control him.

But the suit filed by the dead man’s brother says that on the morning of Sept. 14, 2012, McCall had eaten breakfast with his grandmother and her caregiver “in a calm and comfortable manner.”

Afterward, the grandmother called a caseworker with the county Department of Social Services to ask about her grandson’s benefits and the delays in admitting him into a transitional facility. According to the lawsuit, the grandmother said she needed help with McCall “but at no time expressed any fear or trepidation towards Clay.”

The caseworker called 911 and the Mobile Crisis mental health response team, informing them that McCall recently had been released from jail and had a history of mental illness. According to the suit, she never said that he had harmed or threatened his grandmother or that he was armed.

The 911 dispatcher put out a call, and Swenson, Galland and another officer drove up to the grandmother’s home. They asked the caregiver if McCall was dangerous. According to the suit, she told them “No.”

Throughout his interactions with the officers, McCall was calm, cooperative and answered all their questions, the suit says.

The situation began to change after the officers and a Mobile Crisis counselor decided to have McCall involuntarily committed, the suit says. The officers positioned themselves to block McCall in, then decided to check him for weapons.

According to police reports, McCall became agitated and put his hands in his pockets. Police told him to remove them; McCall refused.

As officers approached, police say McCall grabbed the shears from a nearby tool chest, raised them “and advanced aggressively at the officers.”

Galland, who is still with CMPD, unsuccessfully deployed his Taser. Swenson, a 26-year veteran at the time who recently retired from the force, fired twice. The bullets hit McCall in the chest and the stomach. He died at a nearby hospital.

Newton accuses the officers of using “excessive and unnecessary force.” He says Swenson already had his gun pulled and pointed at McCall when Galland used his Taser. When Swenson opened fire, McCall was not facing him, nor did he have any weapons in his pockets, the suit says.

The U.S. Supreme Court has ruled that police should be judged under an “objective reasonableness” standard. That is, would a reasonable officer facing the same conditions have acted in the same way?

After reviewing the case, the district attorney’s office said Swenson “had no choice but to use deadly force.”

However, McCall’s death occurred after CMPD had begun training its officers to deal with mentally ill suspects.

Assistant Police Chief Eddie Levins said at the time that the officers involved in the shootings of McCall and another Charlotte man with psychological problems a few months later had not received the training.

If they had, Levins said, it could have saved lives.

“The last thing an officer wants to do is take a life, and when it happens it has a lasting effect on them,” Levin said Tuesday. “The department is moving forward with training that will help officers identify and deal with this special population, to do everything we can do to avoid these tragedies.”

Researcher Maria David contributed

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