Feb 11, 2008 By Jennifer Harr 3 min read

Jury selection in the wrongful death federal suit brought against two state police troopers in the death of a 12-year-old Uniontown boy is scheduled to begin in Pittsburgh on Monday. Michael Hickenbottom of Uniontown, father of Michael Ellerbe, brought the suit against Trooper Samuel Nassan, who fired the shot that killed Ellerbe, and Cpl. Juan Curry, who was with Nassan when the shooting occurred on Dec. 24, 2002.

Nassan and Curry were driving in Uniontown when they saw a vehicle that was reported stolen. Prior testimony associated with the case has indicated that the men tried to stop the vehicle, but Ellerbe fled.

Ellerbe fled from the men after crashing the stolen vehicle. As Curry was vaulting over a fence, his gun drawn, the weapon caught and went off, according to prior testimony. Believing Curry had been shot, Nassan shot and killed Ellerbe.

Hickenbottom’s attorneys, however, have contended that Ellerbe never presented a threat to police, and alleged that additional shots were fired at the boy. The suit claims his constitutional rights were violated, and that police used excessive force to stop Ellerbe.

Attorneys have indicated they will ask for a multimillion-dollar settlement.

Last year, Judge Joy Flowers Conti dismissed some counts, but left others lodged against Curry and Nassan. Among the things jurors will be asked to determine is if Nassan used excessive force.

Testimony in the trial will begin on Feb. 18.

Flowers Conti denied a motion to preclude news reports of video about the shooting. She denied as moot motions to preclude any troubles Ellerbe had in school or Hickenbottom’s prior drug use.

Attorney Robert M. Giroux Jr., who is presenting the case along with Michigan attorney Geoffrey Fieger, said in filings that showing news footage or reports “has absolutely no relevance to any element of liability or damages.

“News reports and video news footage of the shooting incident is in no way relevant to the determination of whether the defendant’s use of deadly force was objectively reasonable and whether a reasonable officer would have known that he … was not privileged to use deadly force under the circumstances,” Giroux wrote.

Giroux contended that any problems Ellerbe had in school were irrelevant because Curry and Nassan did not know about them at the time of the shooting. The court filing never indicated what sort of troubles the boy had.

“None of Michael Ellerbe’s troubles in school are relevant and will only be used to paint a bad picture of a young 12-year-old child who was unnecessarily shot and killed. The evidence of Michael Ellerbe’s prior troubles in school would shed absolutely no light on whether the shooting was legally justified,” Giroux contended.

Likewise, the allegation that Hickenbottom used drugs also is irrelevant, Giroux contended, because it “doesn’t make the shooting of Michael Ellerbe any more or less justified.”

Late last month, drug charges lodged against Hickenbottom were bound over for court. The 34-year-old was charged in February 2006 with possession and possession with the intent to deliver drugs when Fayette County parole officers searched him as he left a Uniontown convenience store.

That led to a search of Hickenbottom’s home, where police allegedly found eight small packages and a larger bag of suspected marijuana under couch cushions, and another suspected bag, along with $700 in Hickenbottom’s dresser.