A lawyer for the family of an unarmed man who was fatally shot in the back by DeKalb County police intends to ask the Georgia Supreme Court to reinstate their claims against the county.
The Court of Appeals last month reversed a trial judge’s ruling that DeKalb County wasn’t entitled to summary judgment. On Dec. 12, the appellate court rejected the plaintiffs’ motion for reconsideration.
Kevin Weimer, who represents the family of the killed man, Lorenzo Matthews, said his clients plan to appeal based on claims that the police department didn’t correctly train its officers.
In another aspect of the case, the Court of Appeals had upheld the trial judge’s ruling clearing the way for a trial on claims against the police officer believed to have fired the fatal shots. But because the county is not indemnifying the officer, his lawyer said the plaintiffs have little incentive to pursue that aspect of the case.
Weimer and Stephen LaBriola of Fellows LaBriola wrote in their motion for reconsideration that the county should be held liable because Officer Torrey Thompson fired his weapon based on a PowerPoint training slide that said a “suspect shot in the back should be the norm and not the exception,” and because the county didn’t provide adequate training on when it was appropriate to shoot.
The DeKalb police department “specifically taught its officers to shoot an unarmed, fleeing suspect when it was not reasonable to do so, just as Officer Thompson did,” said the motion by Weimer and LaBriola. “Instead of teaching its officers when it is appropriate to shoot, DKPD instilled them with fear that encouraged them to shoot when it was not justified and ask questions later.”
An attorney for DeKalb County, Brenda Raspberry, said the police department’s training on the use of force was proper and adequate, and the trial judge, DeKalb State Court Chief Judge Wayne Purdom, had committed legal error in denying summary judgment.
“The plaintiffs cannot establish that the County had a policy, practice or custom that caused Lorenzo Matthews’ constitutional rights to be violated,” wrote Raspberry, a senior assistant county attorney, in an email.
The appellate court ruling said that participants in the police department’s in-service training program denied they were taught that it was OK to shoot people in the back, and the training didn’t amount to deliberate indifference to the public’s constitutional rights.
“Although Thompson stated that he shot Matthews because that is what his training told him to do, the record shows that the training was not incorrect,” wrote Judge Gary Andrews of the appeals court, joined by Presiding Judge Sara Doyle and Judge Michael Boggs. “That Thompson was not justified in his belief that Matthews could be armed and could pose a threat to him or others … does not render the training invalid.”
Police shot the 21-year-old Matthews eight times on Sept. 12, 2006, as they were investigating a car collision in a Stone Mountain apartment complex, according to court filings. A complex resident told officers that Matthews may have been in the car that caused the accident, and that he may have been inside an apartment. Matthews also was wanted for questioning in a shooting incident in a nearby apartment complex.
Thompson and another officer, Ronald Knock, covered the back of the apartment in case Matthews attempted to escape, and three officers approached the apartment from the front. Matthews came out of the second-floor apartment’s porch holding an object in his hand that the plaintiffs and witnesses say was a cellphone, but Thompson and Knock thought it looked like a weapon.
The appellate decision said Knock ordered Matthews to stop and drop the object, but instead Matthews ran down the staircase and jumped toward Knock, who fired at him four times. When Matthews ran toward Thompson, Knock told Thompson to shoot Matthews. After briefly hesitating, Thompson fired two rounds, and Matthews ran toward a wooded area, and Thompson fired again.
Police didn’t find a weapon at the scene after conducting an extensive search.
Thompson was accused of murdering Matthews, but the charge was dropped after the Georgia Supreme Court ruled that his statements about the incident to internal affairs investigators couldn’t be used against him.
Thompson’s attorney in the civil suit brought by Matthews’ family, William Atkins, said DeKalb County isn’t indemnifying Thompson on the policy that it doesn’t indemnify officers believed to have violated its policies, so the plaintiffs have little reason to continue the suit against Thompson individually.
Atkins, whose representation is paid by the Law Enforcement Legal Defense Fund, said the shooting was justified and the training adequate.
“If an officer believes a person presents an imminent threat of bodily harm, and if he’s going to cause harm if he escapes, the officer is entitled to use deadly force,” Atkins said. “The officers had every reason to believe that if Matthews got into a safe place, he could fire back. They couldn’t just let him go. That’s a misapprehension of the law.”
Officers have a limited time in which they can react to a threat, and they need to be able to defend themselves, said Atkins.
Atkins said he would show at trial that the fatal wounds were caused by the first of Thompson’s two close-range shots, one of which was a rear-entry shot but the other was from the front. Plaintiffs would argue the kill shots occurred when Matthews was in the woods, he said.
Thompson was following training he had received one month before the shooting, and one of the scenarios presented was similar to the circumstances in Matthews’ shooting, Atkins said.
A lawyer who has argued both for and against police officers before the U.S. Supreme Court, Craig Jones of Page Perry, said the Court of Appeals decision wasn’t unusual.
“It’s very difficult to show defective training or defective policy caused an officer to act improperly,” Jones said after reviewing the decision for the Daily Report.
Just because someone is shot in the back doesn’t necessarily make a shooting unjustified, he said.
“These kinds of cases are often counterintuitive because what appears to be a strong claim on the facts can be a difficult case on the law,” Jones said. “What you’ve got to show is that there is a policy or custom of the department that was the moving force behind the constitutional violation. It has to be something that causes officers to shoot unarmed people, such as lack of attention to this particular fact pattern in training.”
The plaintiffs’ motion for reconsideration tried to demonstrate to the Court of Appeals that there were deficiencies in training and that the DeKalb County Police Department was responsible.
The police department established a pattern of unjustified shootings in the time surrounding Matthews’ death, with three unjustified shootings in the three months beforehand and several more in prior years, according to the motion. Officers were taught to shoot suspects as they were running away but failed to educate them on when gunfire was called for, the motion said.
The plaintiffs in the case are Joshua Bailey, Matthews’ minor child, and Nicola Hatten, Matthews’ mother and executor of his estate.
The Court of Appeals cases are DeKalb County v. Bailey, No. A12A1419, and Thompson v. Bailey, No. A12A1420.