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Troopers’ attorney wants case dismissed

By Jennifer Harr 3 min read

The attorney for two state police troopers sued in connection with the shooting death of 12-year-old Michael Ellerbe wants the case against them dismissed because there is no evidence that either trooper acted unreasonably. A federal court judge already has dismissed the suit against troopers Samuel Nassan and Juan Curry in the official capacities. The counts that remain are against the men as private individuals.

Attorney Andrew K. Fletcher argued in court documents filed Monday that neither trooper violated Ellerbe’s constitutional rights during the chase that ultimately led to the boy’s death.

Nassan and Curry chased Ellerbe on Dec. 24, 2002, after he ran from a stolen vehicle he was driving in Uniontown’s East End. As Curry hopped a fence to continue chasing Ellerbe, his gun accidentally discharged, according to inquest testimony in the case. Believing his partner had been shot when he heard the gun fire, Nassan fired his service weapon, according to testimony.

The shot killed Ellerbe.

At an inquest into the youngster’s death, both troopers testified they believed Ellerbe could have had a weapon on him because he ran in a sideways fashion during the pursuit and kept reaching his hands into his pocket.

“Trooper Nassan’s use of deadly force to stop Michael Ellerbe was reasonable given Ellerbe’s behavior, the context of the chase and trooper Nassan’s reasonable belief that Ellerbe had shot trooper Curry,” Fletcher wrote.

Both coroner’s jurors convened in Fayette County and federal investigators cleared Nassan and Curry of any wrongdoing. Ellerbe’s father, Michael Hickenbottom, filed a lawsuit in federal court alleging that the troopers and other unidentified people violated the child’s civil rights. Among the allegations are that police conspired to cover up what had truly happened.

Fletcher contested that allegation.

“From the moment they were first interviewed less than five minutes after the shooting, throughout four separate investigations and the discovery in this case, the troopers’ testimony has been consistent in all material respects,” he wrote.

Fletcher indicated in his filing that it is not enough for Hickenbottom cannot merely challenge the troopers’ credibility, he has to show evidence that contradicts what they say and supports a different scenario.

Looking at the situation as a whole, Fletcher argued that it was reasonable for Nassan to believe Curry had been shot.

“Ellerbe’s recklessness driving the (Ford) Bronco, followed by his lack of compliance when faced with trooper Nassan’s drawn weapon, confirmed for trooper Nassan that Ellerbe was not intimidated by the trooper and that he was capable of anything,” Fletcher wrote.

Nassan’s belief that Curry had been shot “was consistent with his escalating concern throughout the pursuit that Ellerbe was capable of deadly violence,” Fletcher wrote.

He also argued that there was no cause for civil action against Curry because he did not violate Ellerbe’s rights.

Fletcher’s filing noted that Curry never shot Ellerbe and when his gun discharged the weapon was pointing away from the child.

Even if the bullet from Curry’s gun grazed Ellerbe’s arm, as an expert hired by Hickenbottom’s attorneys contends, the accidental discharge is not a constitutional violation, Fletcher wrote.

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