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Excessive force claims
June 3, 2009
Federal jury: No excessive force in shooting
UPDATE: A federal jury in Austin today found that Williamson County sheriff’s deputy Donald Zachary did not use excessive force when he shot Richard Graves in 2004. The jury deliberated for about an hour and a half before reaching the verdict.
EARLIER: A federal jury began deliberating this afternoon in the civil lawsuit of Richard Graves, who was shot by a Williamson County sheriff’s deputy in 2004 while Graves held a gun to his own head in what Graves described as a threat of suicide.
“Rick Graves was suicidal, “ said Jeff Edwards, one of Graves’ lawyers, during closing arguments. “Rick Graves had a gun to his head. Rick Graves never pointed a gun at anyone…This was a young man who needed help. “
Deputy Donald Zachary’s lawyers said Graves was homicidal as well as suicidal that night and that Zachary made a quick decision to save his own life after Graves refused commands to drop the gun.
“Deputy Zachary had to make a decision and he had to make it instantaneously,” one of Zachary’s lawyers, Charles Frigerio of San Antonio, argued. “That decision was (to yell) ‘drop the gun. Drop the gun.’ That gun was not being dropped and he had to take action. “
The seven-member Central Texas jury in U.S. District Judge Sam Sparks’ court must decide whether Zachary used excessive force and if so, whether it was objectively unreasonable given the circumstances at the time. The jury began deliberating at about 2:30 p.m.
The confrontation happened just after 3 a.m. July 27, 2004, at the Hunters Chase Apartments in Austin, near U.S. 183 and McNeil Drive. The apartments are in southwestern Williamson County.
According to court documents and testimony, Graves and ex-girlfriend Tania Besek had previously broken up and Graves went to her apartment with a box of ammunition and a TEC-9, a handgun that is sometimes referred to as a submachine gun.
Graves threatened to kill Besek and her new boyfriend before Besek managed to close the door on Graves and call 911, Frigerio said. When officers arrived, Graves was sitting on a second floor landing outside Besek’s apartment.
Edwards pointed to testimony from police training experts that showed that Zachary should not have gone up the stairs at the apartment complex to the second floor landing. He had no cover from potential gunfire and should have spoken to Graves from a safe location, Edwards said.
Frigerio conceded that Zachary should not have gone up the stairs but argued that Zachary was lured to the second floor apartment when he saw Graves put his left hand in the air, although he could not see Graves’ right hand.
“Don Zachary knew that from that position … his options were running out,” Frigerio said.
Graves, 38, was seriously injured in the shooting and wrote in a court filing that he has had numerous surgeries, had part of a lung removed, and suffers post-traumatic stress disorder.
Edwards argued to the jury that he is not able to work, in part because he suffers nightmares and nights of sleeplessness. Edwards did not ask the jury for specific monetary damages, but suggested that “something in the neighborhood of half a million dollars” would be fair compensation for Graves. That’s in addition to $131,000 for his medical bills and unspecified amounts for future medical bills and loss of earnings.
Frigerio said that Graves deserves nothing.
“It’s about Richard Graves, poor Richard Graves, “ he said. “I want money because my rights were violated.
“Well ladies and gentlemen, he was not violated because he is the one who chose to put these officers… in that position.”
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