BART Cleared of Liability on Transient Shooting

     OAKLAND, Calif. (CN) – A transit officer who killed a transient armed with a knife, sparking protest in the Bay Area, did not use excessive force, a federal magistrate ruled.
     Bay Area Rapid Transit Officer James Crowell shot transient Charles Hill three times after Hill threw a knife at the officer, according to court documents. The killing set off protests that repeatedly shut down the transit system in the fall of 2011.
     Chris Hill, Charles’ brother, claims Crowell and fellow BART Officer Myron Lee shouted “conflicting and confusing commands” at his brother while responding to a call from a BART employee on July 3, 2011, about a man with an open alcohol container on a station platform. The Estate of Charles Hill is also named as a plaintiff in the case.
     Charles Hill allegedly walked slowly toward the officers after throwing down his bottle of alcohol, pulled out a small knife and threw it at the officers. Though the knife missed “by a large margin,” Crowell “inexplicably” shot Hill three times in the chest, killing him, according to the suit.
     The plaintiffs accused Crowell and Lee of excessive force and wrongful death, and BART of municipal liability.
     In granting the defendants summary judgment last week, U.S. Magistrate Judge Donna Ryu rejected claims that material disputed facts exist as to whether Hill posed a serious threat to Crowell’s safety.
     “Plaintiffs have not submitted any evidence to create disputes of fact regarding the threat facing Crowell,” Ryu wrote. “It is thus undisputed that Hill wielded a knife and moved to throw it as he advanced on Crowell.”
     The judge similarly rebuffed arguments that Lee did not corroborate Crowell’s statements about the incident, finding that “it is undisputed that Hill moved toward Crowell and was in the process of throwing a knife when Crowell shot him. It is not surprising that Lee could not corroborate this undisputed fact, as Lee had fallen to the ground and testified that he lost sight of Hill as a result.”
     Ryu ruled that the plaintiffs attempted to “create a dispute out of thin air” by claiming that Lee could not corroborate that Crowell called out “knife” before shooting.
     “No one, including Crowell, testified that Crowell called out ‘knife’; it is unremarkable that Lee did not hear Crowell say ‘knife’ when, in fact, Crowell did not say it,” according to the ruling.
     It is also undisputed that Crowell warned Hill to drop the knife, Ryu found.
     The judge similarly rejected claims that the level of threat posed by Hill – a small, wobbly, disoriented man wielding a pen knife – created a genuine issue of material fact that should be heard by a jury.
     Crowell’s purportedly cool and calm demeanor in dealing with the threat is also “not a material fact,” as the plaintiffs claimed, according to the 12-page opinion.
     “Whether Crowell subjectively feared for his safety is not material to the ‘objective reasonableness’ standard for determining whether an officer used excessive force,” Ryu wrote.
     Rejecting the argument that Crowell was never actually in harm’s way, Ryu said that “the critical question regarding the threat to officer safety is whether the knife was thrown in the direction of the officer, not where it landed.”
     “Uncontradicted evidence indicates that at the moment Crowell first fired his weapon, Hill was advancing on Crowell and was aiming the knife in Crowell’s direction,” the judge added. “The only record evidence regarding the path of the knife once thrown indicates that Hill threw it in Crowell’s direction.”
     The plaintiffs additionally cannot argue that Crowell did not adequately warn Hill that he would shoot him if he did not comply with directions to drop the knife.
     “Crowell had his gun pointed at Hill when he instructed him to drop the knife; the consequences of a failure to comply with the command should have been clear,” according to the ruling.
     “Further, there is no requirement that officers must give a warning prior to the use of force for the force to be reasonable,” Ryu added.
     BART is clear on the municipal liability as well, with the court noting that there can be no municipal liability where there is no constitutional violation.
     Kevin Allen, an attorney for the defendants, said Judge Ryu made the right call.
     “It has always been BART’s position that Officer Crowell acted appropriately to the deadly threat he faced,” said Allen, an attorney with Low Ball & Lynch in San Francisco, in an interview.
     In the weeks after the killing, multiple protests shut down parts of the transit system. The shooting came about 18 months after another BART Officer, Johannes Mehserle, shot and killed an unarmed black BART rider on New Years Eve 2009. That set off a series of violent protests and lawsuits against the transit agency.
     Mehserle was sentenced to two years in prison for involuntary manslaughter, which set off yet another riot in Oakland.
     Officer Crowell reportedly completed a transfer to the FBI in July, which had been planned before the shooting.
     The plaintiffs were represented by Adante Pointer of the Law Offices of John L. Burris in Oakland. Pointer did not respond to a request for comment.

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