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Legal Claims In The Death Of Darnell Wicker, Explained

Earlier this week, the Jefferson County Attorney formally responded to a federal lawsuit filed by the family of a man killed by Louisville police in August.

The civil suit alleges police officers' fatal shooting of 57-year-old Darnell Wicker was unjustified and unreasonable, and the officers involved violated police policy.

Police are still investigating the shooting while the officers are on administrative leave. The shooting death of Wicker, who was black, is one of several recent killings of African-Americans by white police officers across the country. Many have also sparked civil lawsuits.

Independent of the Louisville Metro Police Department's ongoing investigation, the Jefferson County Attorney presented a routine response to the suit in court earlier this week that raised a handful of possible defenses, including that the officers acted in self-defense.

The response -- and media coverage of it -- appeared to suggest that police had already decided the officers who shot Wicker were not to blame for his death. And that led to some public confusion about the status of the investigation into Wicker's death, creating an appearance of collusion between city prosecutors and police.

So we asked legal experts to help us sort it out.

Chris Gadansky, a Louisville attorney who focuses on public sector civil rights litigation, said it's easy to make the assumption "that everyone is working together and the cops are being taken care of."

That argument has little basis in fact, he said.

The county attorney's filing is a routine element of the civil legal process. The response preserves possible defenses that otherwise could be waived from future litigation, Gadansky said.

The county attorney is defending the police department's position in the suit. For that reason, making the claim that the officers who shot and killed Wicker shouldn't be held responsible shouldn't diminish public trust in the police department's investigative process, Gadansky said.

Joe Dunman, a civil rights attorney in Louisville, said the response from the county attorney is "basic legal strategy."

"And a good one," he said. "When faced with a civil claim of abuse of force, lawyers for a police department will always argue that the use was justified."

Both said investigators examining police officer conduct work independently from city attorneys representing police department in civil rights litigation.

"They frankly don't care what's going on with a civil lawsuit," Gadansky said.

Josh Abner, spokesman for the county attorney's office, said the city is not necessarily beholden to each defense presented in the formal response. He said the results of the ongoing investigation would determine "which, if any, of these defenses would be applicable."
Abner said nearly all civil complaint responses contain "very similar language that would preserve possible defenses and options for relief."

He also noted that any potential criminal wrongdoing found by the police department's Public Integrity Unit would be prosecuted by the commonwealth attorney, not the county attorney, which creates another layer of separation from the investigation.

Finding Accountability

Civil lawsuits filed in response to fatal police shootings are often rooted in a desire for accountability, said Nicole Gonzalez Van Cleve, assistant professor of criminal justice at Temple University.

"There are many different levels that you can reach accountability," she said, one of which is getting police departments to admit wrongdoing or reach a settlement with victims' families.

But Kevin Johnson, dean of the University of California Davis School of Law, said it's difficult to draw inference from attorney strategy in civil cases.

"At first glance, many of the issues in the case appear to be factual in nature, and disputed issues of fact are generally decided after trial," he said

Johnson also noted it's surprising to see a civil lawsuit filed prior to the completion of the police department's investigation.

"Ordinarily one would expect the internal investigation to be completed before the civil lawsuit is decided," he said.

Gadansky and Dunman echoed that.

Dunman said the suit filed by Wicker's family came "extremely close to the incident." Filing civil suits after investigations wrap up can be a way to avoid potentially tainting the public trust, he said.

"The lawyers for the police probably don't care at this point, though," Dunman said. "They just want the suit dismissed."

Jacob Ryan is an award-winning investigative reporter who joined LPM in 2014. Email Jacob at jryan@lpm.org.

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