Expert questions grounds for fatal shooting
PITTSBURGH – A use-of-force expert testified Wednesday in federal court in Pittsburgh that he did not believe that under the circumstances presented that police had objective, reasonable grounds to shoot a fleeing Uniontown boy on Dec. 24, 2002. While he acknowledged that police have to make split-second decisions in tense and rapidly evolving situations, Katsaris also said that those decisions have to be objectively reasonable given the totality of the situation. He said that police should consider the suspect’s prior actions, if he or she is resisting police commands, fleeing, showing his or her hands and acting in generally threatening ways.
Katsasis, called as a witness by attorney Geoffrey Fieger, testified that a running suspect looking over shoulder could be getting taking a “target glance.”
Under questioning from attorney Andrew Fletcher, Katsaris testified that if Michael Ellerbe, 12, looked back at the police as he fled, they could have perceived it as a “target glance,” meaning he was looking back to figure out where they were to potentially fire a weapon.
Katsaris also testified indicated that a backward glance could also be indicative checking to see what was behind him, akin to using the rearview mirror of a car.
“We don’t want to stack bodies up because someone turns around to look at you,” he testified.
A defense expert, expected to testify at a later point in the trial, has indicated that it takes someone one second to turn and shoot, but a person unholstering a gun to return fire would take two seconds to do so. That, Katsaris acknowledged could mean that the person firing the shot could be hit in the back.
This is the second week of testimony on the civil suit, brought by Ellerbe’s father, Michael Hickenbottom of Uniontown. Fieger has contended that police used unreasonable force when state police Trooper Samuel Nassan shot Ellerbe as he fled.
Ellerbe got out of stolen Ford Bronco that had crashed in the city’s East End. He ran from Cpl. Juan Curry and Nassan, though what occurred next is what’s at issue in the trial.
Fletcher has said Curry’s gun snagged on a fence and accidentally discharged. That led Nassan to believe Ellerbe shot Curry, and he shot Ellerbe in the back.
Katsaris testified he believed that reaction was unreasonable, and said Nassan should have asked Curry if he were shot before he shot Ellerbe. In a deposition tape played at the trial, Nassan indicated that he had seconds to react.
Fieger has made issue of how many times Ellerbe was hit, and has presented testimony that the boy was shot twice – once in the back, and once in the left bicep. A medical witness for the troopers has discounted that, testifying that the bullet that exited Ellerbe’s chest on the left side also hit his left arm as he was running.
Jurors have also heard testimony about the number of shots fired. Some witnesses have indicated they heard three shots, while others have said there were only two. Unused bullets taken from the troopers’ weapons showed that only one round was fired from each of their 40-caliber service revolvers.
The six-woman, four-man jury also heard from a retired state police sergeant who indicated he believed there to be problems with the investigation. When he brought them to his supervisors’ attention, James Baranowski testified that he was dismissed, and told to mind his own business.
But Baranowski did not report any of his concerns during a state police internal affairs investigation, nor did he do so during a separate FBI-run probe into the shooting. Federal prosecutors, county prosecutors and the internal affairs investigation all concluded that the troopers’ actions were justified.
Jurors also heard from state police Cpl. James Berger, who is stationed in Butler. Berger, formerly stationed in Uniontown, said he sometimes supervised Curry and Nassan as patrol troopers. Three days after the shooting, Berger testified he took the troopers back to the scene of the shooting to “re-acquaint” them with the scene before they gave statements to investigators.
Fieger also questioned him about an alleged video of the actual shooting. Berger testified one of the men told him that someone may have videotaped it, but did not know if such a tape existed.
Yesterday, Robert Giroux Jr., an attorney also representing Hickenbottom, filed a motion for sanctions against the troopers, claiming they failed to produce documents, including tape recorded statements from March 2003, updated personnel files and other recordings associated with the state police internal affairs investigation.
The motion indicated that on Wednesday, they were given tape recordings from those March statements even though they were ordered to turn them over beforehand.
“Defendants have suggested to the court that as individual troopers, they do not have access or control of the aforementioned statements and other documents or tangible things, but such representations cannot be true,” Giroux wrote.
He called the lack of documents being turned over a “shell game” and requested that U.S. District Judge Joy Flowers Conti enter an order for monetary sanctions against police, and force them to turn over the entire internal affairs investigation file and any and all materials or documents in any way related to the employment of Curry and Nassan.
The trial is set to resume this morning with additional testimony presented on behalf of the plaintiff.