(CN) - A grieving mother can pursue assault claims over the police killing of her son, a federal judge ruled, noting that the officers' story differs from what witnesses remembered.
Metro police in Washington, D.C., had been searching the area around a liquor store on Dec. 26, 2009, after its owner reported that a man with dreadlocks walking a dog had thrown a bottle at his store window.
Believing that Tremayne Flythe met the suspect's description, Officer Angel Vazquez approached him to ask some questions. Vazquez said Flythe then began toying with his jacket, pulled out a knife and struck him with it.
The officer allegedly pushed or kicked Flythe away and then fired two shots from his own service revolver and then ran away because the gun jammed.
Officer Travis Eagan, who had been patrolling the same neighborhood, allegedly heard over the police radio as Vazquez commanded Flythe to drop the knife and fired his gun.
Eagan said he then found Vazquez and chased after Flythe. Vazquez allegedly told Flythe he had been stabbed.
While Eagan chased Flythe, the suspect allegedly turned on the officer with his hand on a knife. Eagan said he warned Flythe that he would shoot unless he dropped the knife, and then fired a fatal shot to the man's chest when he continued to advance.
Though a knife was recovered near Flythe's body in the snow, Flythe's fingerprints were not linked to the knife upon forensic analysis," according to the ruling.
Flythe's mother sued D.C., its police chief and the two officers, but U.S. District Judge Rudolph Contreras dismissed the claims Friday against Eagan and the chief.
In preserving assault claims against Vazquez and D.C., Contreras noted that the differing accounts of the altercation offered by witnesses.
Multiple people who saw Vazquez confront Flythe reported that Flythe had his hands up, palms forward, and did not have any weapon when Vazquez shot at him.
A jury could find Flythe posed no threat to Vazquez when the officer fired at him, the court found, saying that the officer's mere attempt to physically harm Flythe could make Vazquez liable for assault.
Even if Flythe did have his hands up, however, the court found that Vazquez deserves summary judgment on the excessive force claim because he never seized Flythe.
"The fact that Mr. Flythe was ultimately able to escape unscathed from the altercation with Officer Vazquez belies any contention that he was 'seized' by Officer Vazquez," the 39-page opinion states.
Officer Eagan is also immune from excessive force claims because he had an objectively reasonable belief that Flythe had a knife and was dangerous, "whether or not he actually ever saw the knife himself (or whether or not the knife found near Mr. Flythe's body actually belonged to him)," Contreras wrote (parentheses in original).
Although Officer Eagan "may not have been a model police officer," there is no constitutional violation based on the plaintiff's version of the incident, Contreras found.
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