Court Balks at Tossing Excessive Force Case

(CN) - Forensic evidence called into question an officer's contention that the man he fatally shot nine times was "digging" for something in his pants, and persuaded a federal judge to send the case to trial.

As described in an opinion written by U.S. District Judge Rebecca Beach Smith, Officer Stephen Rankin, received a radio call while on patrol the night of April 23, 2011 reporting a burglary in progress in Portsmouth, Virginia.

Specifically, the dispatcher said a white male was banging on a glass door trying to get into a location. She also provided a description of the suspect's clothing.

When Rankin arrived on the scene, he saw an individual fitting the description - later identified as Kirill Denyakin -- banging on the glass door as described. In was later revealed that the door led to an apartment where Denyakin was staying.

What's not in dispute it that within a matter of seconds, Rankin shot Denyakin nine times and killed him. However, the parties sharply disagreed about what happened in the moments that transpired between Rankin's arrival at the scene and Denyakin's death, Smith wrote.

According to Rankin's account, he told Denyakin, "Stop. Police. Let me see your hands. Get down on the ground," but Denyakin did not comply. Instead, he allegedly thrust his hand in his pants and appeared to be "digging" for something. According to Rankin, Denyakin made a menacing facial expression and "then charged directly at me with his right hand still inside his pants."

Rankin said he warned Denyakin to "Stop right there!" but Denyakin did not stop, forcing Rankin to shoot.

Jerrell Johnson, on behalf of Denyakin's estate, disputes Rankin's story, especially the allegation that Denyakin stuck his hand down his pants. According to the autopsy report, Denyakin suffered a gunshot wound to his right wrist, yet there was no bullet hole in Denyakin's pants.

Johnson also asserted that Denyakin "was so intoxicated that he could barely walk, let alone charge at Rankin at a full run with his right hand allegedly stuck in his pants past his wrist." The autopsy revealed that Denyakin's blood alcohol content when he died was 0.28 percent.

"At best, Denyakin attempted to stumble in Rankin's direction at the time Rankin started shooting," Johnson said.

Earlier that night, according to the Maurice and Natalya Wilson owners of the apartment in which Denyakin was staying, they kicked him out after he drank four to six vodka drinks, urinated on the floor and fell while attempting to walk.

Upon review, Smith refused to grant Rankin's motion for summary judgment on Johnson's claim of excessive force.

"The plaintiff points to specific forensic and testimonial evidentiary support in the record, creating a genuine, material factual dispute as to, most importantly, whether Mr. Denyakin charged Officer Rankin and whether Mr. Denyakin's hand was in his pants or otherwise concealed from view," she wrote.

Citing an observation made by Supreme Court Justice Ruth Bader Ginsburg in an earlier case, Smith added, "when the plaintiff's 'excessive force claim turns on which of two conflicting stories best captures what happened on the street,' summary judgment is not permitted."

Furthermore, Smith found Rankin is not entitled to qualified immunity: "The defendant is alleged to have shot an apparently unarmed man who had his hands up, or at least visible, and was, at most, stumbling in the officer's direction. A reasonable officer in these circumstances could not have believed that such conduct was lawful."

"A trial must be had," the judge concluded.

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