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Cops Who Fired 22 Times at Man Weren’t Excessive

(CN) - Martinsburg, W.Va., police officers who shot a homeless schizophrenic man 22 times after he stabbed one of them did not use excessive force, a federal judge ruled.

According Robert and Bruce Jones, administrators for the estate of the Wayne Jones, their brother was walking down Queen Street in Martinsburg, on March 13, 2013, when Officer Paul Lehman encountered him.

Jones was walking in the street, rather than the sidewalk, and after he'd gone about a block, Officer Lehman stopped him on the grounds that a local ordinance prohibits a pedestrian from walking in the street when a sidewalk is available.

A video recorded from Lehman's police car showed Hoes wearing "a big loose coat," but seeming to cooperate as he interacted with the officer.

Robert Jones later said in a deposition that his brother suffered from schizophrenia and was homeless, but that the average person coming across him would likely not realize he had a mental illness.

In recounting his interaction with Jones, Officer Lehman said he asked the main why he was walking in the street and whether he had any identification. He said he couldn't recall what Lehman said in response to the first question, but that he said he didn't have an I.D.

Lehman said he then asked Jones if he could pat him down for weapons, to which the homeless man said, "What's a weapon?"

"Any knives, guns, clubs, or anything of that sort," Lehman said.

"Yes, I have something on me," Jones replied, according to the officer.

Lehman radioed for backup. Officer Daniel North said by the time he arrived on the scene, Jones and Lehman appeared to be having an argument. As that argument escalated, Lehman used his Taser on Jones, to no apparent effect, the officer said.

North then deployed his own Taser, which he said also "had minimal effect."

Both officers said that a moment later, Jones struck Lehman and began running down the street toward a bookstore. Lehman immediately ran after him. North called for additional backup.

Robert and Bruce Jones say that once at the bookstore, North got into a confrontation with their brother, as did another officer, William Staub, who had just arrived at the scene.

As the struggle continued, they say, Officer North Tased their brother again, while Staub placed him in a choke hold.

By now, Officer Lehman, and two other officers, Eric Neely and Erik Herb, joined the fray. Neely told Jones he would Taser him if he did not stop resisting arrest, and when the homeless man did not stop fighting back. A moment later, the plaintiffs say, Neely did Tase their brother, again to no effect.

At this point, the officers said, Jones stabbed Officer Staub in the side.

"He's got a knife," Officer Staub yelled, according to depositions given by the officers.

"Around this time, Officer Lehman saw an object in Jones' hand ... The officers backed up from Jones a few steps and drew their guns ..." the plaintiffs say.

The officers ordered Jones to drop then knife; when he didn't, they plaintiffs say, the officers opened fire.

"Per the video from Officer Neely's dashboard camera, the shots lasted approximately two seconds and were fired almost simultaneously," the plaintiffs say. "The officers fired twenty-two shots at Jones, which all struck him ... After the shooting ended, Officer Neely radioed that shots had been fired and requested emergency medical personnel ... Jones died at the scene," the plaintiffs said.

After Jones death, the officers were placed on paid administrative leave while a state grand jury investigated the incident. In October 2013, the grand jury declined to indict the officers, who were then allowed to return to work.

The Jones brothers sued the Martinsburg Police Department and the officers, then identified only as Does 1-25, on June 13, 2013, asserting wrongful death and negligence claims against them. In August 2013, the claims against the police department were dismissed.

The brothers ask for and granted permission to amend their complaint, at which time they inserted the officers as defendants, and added another claim - that the City of Martinsburg was liable for its officer's alleged constitutional violations. The defendants moved for summary judgment.

On Oct. 15, 2014, U.S. District Judge Gina Groh sided with the defendants, dismissing the action with prejudice and ordering that the case be stricken from the active docket.

In her ruling, Groh noted several inconsistencies in the arguments posed by the plaintiff estate.

"First, the Estate argues whether Jones had a knife is disputed. The Estate, however, admitted Jones Possessed a knife and additional facts concerning the knife - that Jones stabbed Officer Staub with it, the officers ordered Jones to drop it, and Jones refused to drop it ... these admissions render Jones' possession of the knife undisputed," she wrote.

"Second, the Estate argues there is no evidence Jones failed to heed the officers' instructions, engaged in 'unruly' actions, or otherwise attempted to evade the officers because the videos from their vehicles do not show such actions," Judge Groh continued. "The Estate, however, admitted Jones did not comply with the officers' orders to stop feeling, to stop resisting, and to drop the knife. Given these admissions, the Estate cannot dispute whether Jones listened to the officers, evaded them, or took 'unruly acts.'"

"Finally, the Estate argues the videos do not reveal Jones attempting any violent actions," Groh said. "The fact that Jones took a violent action is undisputed because the Estate admitted Jones stabbed an officer with the knife."

As to the actions of the officers, Groh said under the circumstances, the Court finds that a reasonable officer in each of the officers' shows would have concluded that Jones posed an immediate threat of serious physical hard to all of the officers. The officers' use of deadly force therefore was justified and reasonable."

In arguing that the officers used excessive force, the estate stressed the point that the officers fired 22 shots at Jones.

"The Fourth Circuit has instructed, however, that the number of shots fired is not 'determinative as to whether the force used was reasonable,'" Groh said. "Indeed in Elliot, the Fourth Circuit upheld the firing of the same amount of shots that the officers fired at Jones. In reaching that conclusion, the Fourth Circuit focused on the near simultaneous nature of the shots, the fact that the officers did not empty their guns, and the short duration of the shooting. The circumstances in this case are similar to Elliot. The shooting took mere seconds, and the officers fired nearly simultaneously. There is also no indication that, in those few seconds, any officer saw Jones drop the knife such that he would no longer pose a threat."

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