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Police, The Fourth Amendment, Qualified Immunity

Sergeant Michael Custer of the PBSO kills a regcit

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Case:  Adams v. SHERIFF OF PALM BEACH COUNTY, Court of Appeals, 11th Circuit 2016

What happened:

There are two versions of the facts in this case. Before the district court, Defendant offered a specific chronological recitation of the events that led to his shooting Adams. Plaintiff is unable to offer, with any specificity, a differing summary of the events because the only other eyewitness to the shooting was the victim of that shooting, Seth Adams, and he is dead. Nonetheless, Plaintiff disagrees that the events could have occurred as Defendant described them, and she produced forensic evidence as well as the testimony of other witnesses that call into question the truthfulness of Defendant’s explanation. We set out first the Defendant’s version of the facts. Then, we set out the evidence offered by Plaintiff that contradicts Defendant’s testimony, along with the impact of that evidence on the credibility of Defendant’s account.

At the time of the incident giving rise to this case, Defendant Michael Custer (“Defendant”) was a sergeant with the Palm Beach County Sheriff’s Office (PBSO). He was assigned to PBSO’s Tactical Unit (TAC), where his responsibilities included performing undercover surveillance operations. On the night of the shooting, he was on duty participating in such an operation. Due to the nature of the operation, Defendant was driving an unmarked police SUV and dressed in plain clothes. Although he was wearing a TAC tee-shirt under his plain gray button-up shirt and a badge clipped to his belt, Defendant wore his button-up shirt untucked, which may have concealed the badge on his belt during his encounter with Adams.

Seth Adams was an employee of A One Stop Garden Shop, which owned the parking lot where the shooting happened. Adams also lived on the premises in a residence behind the nursery, which was adjacent to the parking lot. That night, Adams was wearing a work shirt with A One Stop Garden Shop’s company logo on the front and back.

Shortly after 11:00 p.m., Defendant backed his vehicle into the parking lot of A One Stop Garden Shop, which was closed. A sign that read “NO PARKING 6 PM TO 6 AM VEHICLES WILL BE TOWED” was posted in the parking lot, though Defendant claims to not have seen the sign. Defendant chose this parking spot to take advantage of the darkness there, and remained in his vehicle with the engine running and the lights off.

Around 11:40 p.m., Seth Adams drove his pickup truck into the parking lot and parked parallel to Defendant’s vehicle, facing the other direction. The two drivers faced each other from 10 to 15 feet away, each now with his window down. Defendant stated that Adams immediately began “screaming” and demanding, “Who the f*** are you? What the f*** are you doing here?” Defendant identified himself as a law enforcement officer and showed Adams his ID, but Adams exited his vehicle empty-handed and rapidly approached Defendant’s vehicle. Defendant then exited his vehicle and tried again to show his ID to Adams and explain his presence there. Defendant did not use any device to illuminate his ID, and both he and Adams were behind the headlights of Adams’ truck.

Defendant claims that Adams “sat there listening to [him]” for a “couple of seconds,” but then suddenly grabbed Defendant by the throat. Defendant says he broke free from Adams’ grip on his neck, although the two continued to grapple briefly. Defendant was finally able to extricate himself after hitting Adams with a chest strike, which created some space between himself and Adams. Defendant then drew his firearm, pointed it at Adams, and ordered him to the ground, declaring Adams to be under arrest. Adams, still empty-handed, did not heed the instructions, but walked back and forth in front of Defendant, “hovering” about five feet away. Defendant backed towards his vehicle to retrieve a radio from the front seat, which he used to request backup. The standoff continued, and Adams then ran towards the open door of his truck, not heeding Defendant’s orders to stop, to stay away from the truck, and to get on the ground. Defendant then kicked the open door of Adams’ truck shut, pinning Adams between the door and the vehicle’s frame.

The two struggled there briefly. In the statement in which he first recounted the “pinning” incident, Defendant said he held Adams pinned in the door frame while Adams was “moving around . . . trying to get out of the door” and screaming profanities “the whole time.” Defendant said he perceived that Adams “was trying to get a weapon,” and was “convinced he had obtained a weapon” when he “saw [Adams’] arms coming around.” Defendant then fired four rounds at Adams.

In a later statement, Defendant elaborated on the above account, claiming he saw Adams “fishing around” the interior of the truck while he was pinned in the doorframe. In this account, Defendant says he held his firearm in his left hand as he wrapped his right arm around Adams’ head and neck in an effort to pull Adams away from the truck. Adams suddenly yelled, “F*** you, as loud as he could, and came spinning out of the truck.” At this point, Defendant says he fired his first shot, and then fired three more as he backed away from Adams.

In short, the account offered by Defendant indicates that prior to the shooting, a profane and angry Adams had struggled violently with Defendant and tried to choke Defendant around the neck. Running away from Defendant, Adams tried to get into his truck. Defendant blocked his exit from the truck, pinning Adams inside the truck with the truck’s door pressed against him. But Adams, who appeared to be making an effort to obtain a weapon inside the truck, suddenly spun out of the truck and toward Defendant, who was standing at the truck’s door, and loudly shouted F*** you. At that point, fearing for his life, Defendant shot Adams. Adams died two hours later.

Plaintiff disputes the truthfulness of Defendant’s account and offered evidence that the district court concluded to have contradicted and substantially undermined Defendant’s account of the events. First, Defendant stated that Adams had grabbed Defendant’s neck and throat “as hard as a man can grab you.” Yet, there was no redness or bruising on Defendant’s neck. Nor did the DNA swab conclusively reveal any DNA from Adams.

Key to Defendant’s ultimate explanation for shooting Adams was his assertion that Adams had made his way back to his truck at the point at which he spun back on Defendant, standing right next to the door of the truck. As noted, Defendant thought Adams might have gotten hold of a gun inside the truck. Yet, as pointed out in the district court’s order, Plaintiff produced forensic evidence supporting a conclusion that Adams was actually shot, not inside or near the open door of the truck, but instead as he was standing at the rear of the truck. From this the district court concluded: “[Defendant’s’] claim that he fired his first shot after Adams—standing pinned between the driver’s side door and vehicle frame . . .— suddenly broke free from [Defendant’s] chokehold and spun around shouting obscenities, is thus at complete odds with forensic, blood, and ballistic evidence. . . .”

Further undermining the credibility of Defendant’s statement regarding the above incident as the event precipitating Defendant’s decision to shoot is the fact that Defendant failed to mention this event immediately after the shooting, instead explaining that he shot Adams because the latter tried to choke Defendant. It was only in a later account given in the presence of his attorney that Defendant mentioned this second incident inside Adams’ truck. Further, critical to the accuracy of Defendant’s recounting of the above conduct by Adams is the fact that Adams was allegedly pinned inside his truck with its door open. Yet, investigation immediately after the shooting showed the door of the truck to be closed.

As to one more detail in Defendant’s first description of the initial encounter, Defendant stated that Adams had been hostile and aggressive from the outset and that after Defendant identified himself as a law enforcement officer, Adams kept screaming and “acting like a lunatic.” But another law enforcement officer from Defendant’s team had been driving by and observed the initial encounter between Defendant and Adams. This officer, Agent Drummond, indicated that he saw Defendant get out of his vehicle, while Adams was standing between the two vehicles, and it appeared that Defendant was talking to Adams, with nothing appearing to be wrong. Less than 90 seconds later, Agent Drummond heard on his radio another agent broadcast a warning that shots had been heard in the area, and moments later he heard Defendant’s call for back-up. However, according to Custer, he had initially called for back-up before any shots were fired, and had later issued a second call for back-up in which he noted that he had shot a man who had attacked him.

Written by Burgers Allday

November 26, 2016 at 6:04 am

Posted in Uncategorized

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