WilCo Follies

Illustration by Craig Staggs

Do police have the right to shoot a suicidal suspect who poses no threat to anyone but himself?

That question is at the center of a use-of-force lawsuit, Richard Graves v. Don Zachary, pending before the 5th U.S. Cir­cuit Court of Appeals in New Orleans. Graves accuses Zachary, a Williamson County sheriff's deputy, of civil rights violations for nearly killing Graves during a July 27, 2004, family disturbance call. Zachary shot Graves in the groin and heart while Graves knelt on the balcony facing the apartment of his ex-wife and estranged girlfriend, Tania Besek. Accord­ing to Graves' account of the incident in his pleadings, he held a gun to his right temple and said he wanted to die, providing "not even a twitch" of provocation to the officer. Zachary defends the shooting, saying he thought Graves might turn the gun on him or others. "I felt that Graves may at any moment shoot me. I felt danger for myself, and I fired two rounds at Graves to stop the threat," wrote Zachary in his affidavit.

Graves says he sustained debilitating injuries – he lost a section of his lungs and intestines, had a hole in his heart, and suffered from mental disorders, including post-traumatic stress disorder, for which he is receiving psychiatric care. After emerging from a coma, Graves faced four felony charges and, under a plea bargain, pled guilty to assaulting Besek – he received probation for second-degree felony assault, with seven years deferred adjudication.

In 2006, he filed suit against the county and Zachary, representing himself and submitting handwritten documents, alleging that Zachary (representing the county) had violated his rights by acting as "judge, jury, and executioner," Graves told the Chronicle. Federal District Judge Sam Sparks granted the county's motion for summary judgment because Graves had not "offered any evidence that he was shot pursuant to a policy, practice, or custom of Williamson County, nor that Williamson County acted with indifference to his constitutional rights." But Sparks denied a similar motion on Zachary's behalf. In his April 20, 2007, ruling, Sparks wrote, "It is undisputed that Plaintiff did not verbally threaten the police in any way and did not make any moves or point his gun at anyone else after police arrived on the scene." That meant, Sparks continued, that "the record raises fact issues concerning whether or not it was objectively reasonable to believe Graves posed a threat of serious harm." "Fact issues" generally must be resolved by a jury.

"To grant immunity to Zachary," Sparks wrote, would presumably "set a precedent that when an officer comes upon a suicidal person pointing a gun at himself and no more, that it is reasonable to shoot that person twice." Sparks also rejected the county's argument that Graves' assault conviction legally invalidates his claim of excessive force. "Graves pled guilty to the aggravated assault of Tania Besek," Sparks noted, "and not to assaulting the police officer who shot him."

Zachary appealed Sparks' decision to the 5th Circuit, and a four-judge panel ruled against the officer on April 30, agreeing that "genuine issues of material fact" remained. Zachary contended that as long as Graves held a gun, he was a threat. The panel responded, "Merely having a gun in one's hand does not mean per se that one is dangerous." The ruling also pointed out, "There are factual disputes as to whether Graves was incapacitated by the first shot such that the second shot was unnecessary" and whether Zachary told Graves to drop the weapon or show his hands. As to Graves' saying he just wanted to die, "Zachary did not report hearing anything, but [Deputy Robert] Newell reported that he heard Graves say 'something' to Zachary," the panel noted. (In their affidavits, the officers report no threats from Graves.)

On May 12, Assistant County Attor­ney Stephen Ackley petitioned for a rehearing before the whole court on Zachary's behalf (though no longer a party to the suit, the county continues to provide legal counsel to Zachary as its employee). In the petition, Ackley berates the appellate panel for asserting that a gun in hand does not necessarily constitute a threat. In deliberate hyperbole, Ackley makes his point: "The panel's use of the word 'merely' conclusively demonstrates that the panel did not assess the totality of the circumstances. ... This statement of law will result in the unfortunate deaths of police officers as they now will be precluded from firing additional shots unless they first check the suspect's pulse or breathing and make sure that the suspect still has the capacity to shoot the officer before the officer can fire an additional shots to eliminate the threat of harm."

On June 2, Graves' counsel, Jeff Edwards (retained per Sparks' court order), filed a response to Zachary's petition. In addition to disputing Ackley's version of the incident as "patently false," Edwards describes the county's perspective as the "dangerous" one: "Appellant essentially asks the Court to immunize police officers from excessive force claims whenever the suspect they shoot has a gun. No court has ever made such a holding, as it would endanger the lives of all suspects who come into contact with the police."

Edwards also points out in the pleadings that according to the 911 transcript, there were several seconds between shots (six, in fact), leaving Zachary opportunity to speak to Graves before he fired on him a second time. Edwards repeats the refrain, "One thousand one, one thousand two ..." to demonstrate that there was plenty of time for Zachary to negotiate. Quoting an affidavit by former Austin Police Department SWAT Cmdr. Juan Gonzalez, Sparks had written, "Gonzalez opines that Deputy Zachary committed tactical errors by not ... attempting to communicate with Graves, and [not] waiting for a Mental Health Officer or negotiators to arrive." Indeed, mental-health officers who were certified hostage negotiators from then-Precinct 1 Constable Gary Grif­fin's office were en route but were canceled from the call after Graves was shot. Griffin told the Chronicle his approach would have been to talk to Graves "all day" if necessary to prevent a violent incident.

In the wake of the shooting and now his lawsuit, Graves is also taking a public beating these days from WilCo officials. Recently, Ackley crashed family court proceedings (concerning Graves and Besek's daughter) and circulated photos of Graves, identifying him as a "dangerous person," while presenting himself as simply a "concerned citizen," Graves told the Chronicle. The county also slapped Graves with a contempt charge for missing a deadline to file for postponement of his child support payments until he receives disability payments. If found in contempt, Graves' probation could be revoked, sending him to prison for five to 99 years. "The county could really mess with Graves on this," Edwards said.