Suicide by Cop

A jury has found in favor of the defendants in Richard Graves v. Williamson County and Don Zachary, a lawsuit tried June 1-2 in U.S. District Judge Sam Sparks' court. The jury rejected Richard Graves' allegation that Williamson County Sheriff's Deputy Don Zachary violated Graves' constitutional rights when he shot him in the groin and heart on July 27, 2004, while Graves was holding a gun to his own head and sitting cross-legged on the balcony of an apartment belonging to his ex-wife, Tania Besek. According to court documents, Graves had brandished a gun at Besek, after which she'd called police and reported that Graves might kill himself. A "man-with-gun" family disturbance call went out, culminating in the near-fatal shooting. (See "WilCo Follies," June 27, 2008.)

When Graves initially filed the lawsuit, things seemed to be going his way. William­son Co. sought qualified immunity for Zachary but lost on appeal, and Sparks – along with a panel of justices for the 5th U.S. Circuit Court of Appeals in New Orleans – agreed with Graves that he had posed no threat to police or bystanders. At trial, other officers who were on the scene testified that indeed Graves had not pointed the gun at them, that they would not have charged up the stairs without taking cover as Zachary had done, nor would they have shot Graves without first talking to him. Moreover, the plaintiff's counsel, Jeff Edwards, argued that Graves had indeed complied with commands to show his hands – by lifting his left one, palm open, and keeping his right to his own head with the gun. The defense countered that this did not constitute compliance.

Zachary testified that Graves had "lured" him upstairs, faking surrender; if he'd seen the gun sooner, he'd have taken cover downstairs, he said, but believed he had to charge up to save others. Moreover, he insisted that he ordered Graves to drop his weapon, though no one else could testify to having heard him say that. He said he shot haphazardly out of stress and justified the second shot – two or three seconds later – by saying, "I thought I'd missed."

Although Zachary is a trained sniper, he represented himself on the stand as having felt fearful and helpless. According to ballistics evidence, Zachary was at point-blank range on the first shot; forensic analysis could not determine distance on the second shot, but on the 911 tape, that shot was muffled, and witnesses said that it was hard to hear. The shot entered Graves' shoulder, traveling at a much steeper trajectory than the first shot, according to Edwards. Graves told the Chronicle he doesn't remember seeing either shot coming – his eyes were closed before the first, and he blacked out after the second.

The defense cast Graves as a highly intoxicated and dangerous "active shooter," packing a weapon "like the one used at Colum­bine" and "no different than a gunman on the UT campus." Graves was contemplating not just suicide but homicide, the defense abruptly argued during closing arguments – a claim to which Edwards objected, unsuccessfully. The jury would sort out the facts, was Sparks' response.

According to Graves, these facts still remain: He wanted to kill himself that night and no one else. "I just wanted to die," he remembers telling officers right before the first shot, a wish Zachary almost granted him.