Knoxville Officer Who Shot Unarmed Man in Back Can’t Claim Immunity

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A Knoxville Police Department officer who shot an unarmed parolee in the back as he was running away and, again, after he fell to the ground cannot escape a federal civil rights lawsuit, an appellate court has ruled.

The 6th Circuit U.S. Court of Appeals earlier this month upheld a ruling by Chief U.S. District Judge Tom Varlan in which Varlan refused to grant KPD Officer David Gerlach immunity from a $3 million civil rights lawsuit filed on behalf of the slain parolee’s son.

The ruling clears the path for a trial in the July 2014 shooting death of parolee Ronald E. Carden and reinforces the findings of a USA TODAY NETWORK-Tennessee investigation that used autopsy results to debunk the initial account by officials that Gerlach was locked in a life-and-death struggle when he shot Carden six times.

The autopsy showed all six shots were fired into Carden’s backside and three of those were fired after Carden had been felled by the initial round of bullets. Five of the shots were fired from a distance of more than three feet.
Shooting unarmed, fleeing felon a legal no-no

Like Varlan, the appellate court ruled the law is clear – shooting an unarmed suspect who is running away is the very definition of excessive force. Gerlach, the court concluded, should know that as a police officer and cannot claim immunity.

“Gerlach contends that the case law at the time of the encounter did not clearly establish that his use of deadly force would have been unjustified, even under the circumstances found by the district court,” the appellate court opinion stated. “About that, however, he is mistaken.

“Because it was clearly established at the time of the shooting that the police may not fire on a fleeing suspect who does not pose a threat of serious physical harm, the denial of qualified immunity was proper,” the opinion continued.

Gerlach fatally shot Carden, 45, in an encounter that began on the Interstate 40 ramp at the West Hills interchange. The initial encounter between the two men was captured on police dash cam footage. The shooting occurred out of camera range when Carden began running up a hill after throwing punches at Gerlach. The officer’s microphone captured audio.

On the day of the shooting, KPD spokesman Darrell DeBusk described a violent struggle in which he said Carden fought to wrest Gerlach’s gun from his holster with such force the holster broke.

“Officer Gerlach was able to retain enough control of the gun to fire more than one shot,” DeBusk said at the time.

An autopsy showed Carden was shot after the struggle ended and as Carden was running away, with more shots fired after he fell.

Citing the autopsy and evidence submitted by attorney Richard M. Brooks on behalf of Carden’s son, Varlan offer the following description of the shooting:

“(Carden) started to flee, and made it about one step, when (Gerlach) began shooting at (Carden),” Varlan wrote. “(Gerlach) fired approximately two to three shots at (Carden) while (Gerlach) was still lying on the ground. He then stood up and fired three more shots down at (Carden). Approximately thirty-five seconds elapsed from the moment (Carden) struck (Gerlach) to the moment (Gerlach) fired his final round.”

The appellate court opined that even if Gerlach “had probable cause to fear for his safety during his struggle with Carden,” a jury could find “he lacked the same cause after the struggle had ended and Carden, still unarmed, had turned and begun to flee.”
Deadly encounter

Carden had just been released on parole on a 1996 conviction for abducting a woman at gunpoint from a motel on Asheville Highway, taking her vehicle and leaving her tied to a tree. The autopsy report stated he had a syringe in his sock and part of a Suboxone pill — an opiate used to treat opiate addiction — in his jeans pocket when his body arrived at the morgue.

Gerlach had stopped on the Interstate 40 ramp at the West Hills interchange when he saw a car with a flat tire. Carden, the driver, was changing the tire. Gerlach began to drive away when, according to the dash cam video, he suddenly returned to his position behind the car. DeBusk has said Gerlach discovered the license plate on the car was not registered for that vehicle.

Carden threw two punches, neither of which struck the officer, and ran up a nearby hill. The two wound up on the ground with Carden on top of Gerlach. The officer tried to disable him via a stun gun but wound up shocking himself instead, and Carden quickly stood up and began to run away, court records and autopsy results showed.

An autopsy by Knox County Chief Deputy Medical Examiner Dr. Christopher Lochmuller concluded Carden suffered six gunshot wounds from behind, with all but one of the bullets fired from more than 3 feet away.
Knoxville Police Department Chief David Rausch respondsBuy Photo

The autopsy also revealed an oddity not yet addressed in any of the legal pleadings filed in the lawsuit. In the dash cam footage, Carden was dressed in jeans and a buttoned-up shirt when he ran from Gerlach. His body arrived at the morgue shirtless and in handcuffs. Lochmuller noted KPD did not turn over the shirt to him until Aug. 20, 2014, three weeks after the shooting.

The case now returns to Varlan for the setting of a trial date. Carden’s son is suing both Gerlach and KPD. Deputy Law Director Ron Mills is representing KPD. City taxpayers are footing the bill for a private attorney for Gerlach.

Source: http://www.knoxnews.com

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Filming Cops
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Filming Cops was started in 2010 as a conglomerative blogging service documenting police abuse. The aim isn’t to demonize the natural concept of security provision as such, but to highlight specific cases of State-monopolized police brutality that are otherwise ignored by traditional media outlets.

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  • Forrest Carlton Lackey

    There’s this thing called personal responsibility. It’s something a lot of cops and their supporters, who often claim to be conservative and christian, say they have and wish they would see more of.
    Having a badge means more accountability, not less.
    No, he shouldn’t have run from you.
    But murder was not the right answer.
    You should have resorted to a non lethal take down.
    As spider man was told, great power means great responsibility. As the Bible says, to him whom much is given, much more will be asked. So the fact our tax dollars go to arm and train you to handle this situation means we can be pissed when you over react and shoot somebody. He maybe in the wrong, but he wasn’t an actual threat. It’s not about you and your ego’s take on your authority.
    It’s about as morally bank rupt as me, a big man, walking into a store. A little girl punches me in the balls, and I send her to the hospital.
    Or shoot her.
    Naturally that’s what Jesus would do, instead of smack her hand, give her a spanking, or better yet, get her mother and have her grounded. (in this case grounded means prison).