Officer Juan Curry, center and Trooper Samuel Nassan (r)
$28 million award against troopers in boy's killing - U.S. jury finds state police intentionally shot, killed 12-year-old boy
A jury yesterday awarded the father of Michael Ellerbe more than $28 million after finding that two Pennsylvania state police troopers intentionally shot and killed the 12-year-old boy in Uniontown on Christmas Eve of 2002.
The bulk of the award, $24 million, came in punitive damages intended to punish Trooper Samuel Nassan and Cpl. Juan Curry for "maliciously" violating Michael's constitutional rights. The state of Pennsylvania is responsible for paying.
After nearly three days of deliberations, the jury said both Trooper Nassan and Cpl. Curry shot at the boy, contradicting the accounts given by both men during the trial.
Trooper Nassan testified that he fired at Michael because he heard a gunshot and thought the boy had shot at his partner. Cpl. Curry said his gun fired accidentally as he was climbing a fence to chase Michael, who had been running from a stolen car. Michael was unarmed.
"This is not about money. This is about justice," said Geoffrey Fieger, a lawyer for Michael Hickenbottom, the boy's father. "The jury has determined unanimously that these officers shot a little boy in the back and arm and lied about it."
Mr. Fieger, a prominent Michigan attorney, spoke to reporters via conference call from Detroit, while a weary Mr. Hickenbottom sat in front of television cameras and reporters in a Downtown law office.
"I'm not out to make history. I'm out to find answers about my son's death," he said. "I just want to know -- why did [they] shoot him in the back?"
Mr. Fieger was scathingly critical of the state police, calling it a "Gestapo agency" where the highest ranks were actively involved with trying to cover up the true circumstances of the shooting. He suggested that both federal and state officials should review the evidence presented during the trial.
An attorney for the troopers said he would appeal.
"This obviously is an enormously disappointing verdict that, in our view, is not at all supported by the evidence," Andrew K. Fletcher told reporters from the steps of the federal courthouse as Trooper Nassan and Cpl. Curry silently stood beside him.
"Trooper Nassan has been consistent throughout," Mr. Fletcher said. "He believed he was certain his partner had been shot."
Before the trial, the FBI, state police and the Fayette County district attorney all examined the case and found no reason to bring criminal charges against the troopers. U.S. Attorney Mary Beth Buchanan yesterday indicated she was willing to take a second look. "I will review the transcript of the civil trial to determine whether reopening the federal criminal investigation is warranted," she said through a spokesperson.
Jack Lewis, a spokesman for the state police, said, "We're disappointed with the verdict. We won't have any further comment, pending our review of the decision and the record of the trial."
Bruce A. Edwards, president of the Pennsylvania State Troopers Association, called the verdict an "incredible injustice."
The shooting took place on Dec. 24, 2002, when the two troopers -- Cpl. Curry was later promoted -- responded to reports of a stolen Ford Bronco. They spotted the car as it was about to turn from an alley onto Cleveland Avenue.
According to the troopers' version, Trooper Nassan pulled out his gun and approached the car, yelling commands. The driver, Michael, then drove rapidly in reverse, hitting the side of a house and eventually stopping. He ran from the car with a hand in his pocket, suggesting he had a weapon. When Cpl. Curry's gun accidentally fired, Trooper Nassan shot Michael in the back. The whole incident took 90 seconds.
Throughout the two-week trial, Mr. Fieger focused on inconsistencies in the troopers' story. Some witnesses saw several children run from the car, not just one. No witnesses saw Michael running with his hands in his pocket.
No one ever recovered the stray bullet from Cpl. Curry's gun. There were no powder burns on the fence where he said his gun went off. Shell casings were found in places that didn't correspond with the troopers' positions at the time of the shooting, according to one expert witness. And two forensic pathologists said two bullets, not one, hit Michael.
Mr. Fieger yesterday reserved special praise for James Baranowski, a former state police sergeant who was the ranking officer at the scene in the first several hours after the shooting. The lawyer called Mr. Baranowski a "hero" for testifying about his doubts about the case.
Mr. Baranowski is a plaintiff in his own suit in U.S. District Court, filed in 2005 against Lt. Charles L. Depp and Capt. Roger N. Waters. He claims the commanders disciplined him for expressing his concerns and pushed him to retire in July 2003, ending his 17 years of service with the state police.
Fayette County District Attorney Nancy D. Vernon yesterday said she discounted the former sergeant's story.
"[He] never approached any prosecutorial authority to express his concerns. My door was always open," she said in a statement. "I am quite aware of the difficulties this individual experienced during his employment with the Pennsylvania state police and give no credibility to his statements now, after the passage of so many years."
In January 2003, a coroner's jury in Fayette County deliberated 55 minutes before deciding that Trooper Nassan was justified in shooting Michael.
Mr. Fieger yesterday said that original decision had been a "ruse." It also came at a time of protests from civil rights groups appalled by the shooting of a black child.
Some raised their voices again yesterday.
Tim Stevens, chairman of the Black Political Empowerment Project, called on state police to conduct a full review of use of force procedures.
"It is in the interest of all law enforcement agencies to do so, not only to protect the citizenry, but also to protect public coffers from being profoundly affected by needless and costly lawsuits," he said.
The jury award included $4 million in "noneconomic" losses and $4,058 to cover funeral expenses. Mr. Fieger said attorney fees would come on top of the full $28 million.
It was one of the biggest such awards in Western Pennsylvania history, said Timothy Conboy, a Pittsburgh trial attorney with more than 25 years of experience in personal injury law.
He predicted that, after a lengthy appeals process, the two sides could eventually settle for a large amount of money, but less than the full award.