The past two weeks I have been on jury duty. It was the first summons to jury duty that I have received in my life, I was lucky that way. I was hoping I would not be selected, but was not going to make a great effort to get out of doing my civic duty. I had a 2-hour commute through gnarly traffic from Santa Rosa to the federal court building in downtown San Francisco, 65 miles away. The worst part about this summons was, I found out on the day I reported for Day 1 of jury duty, that it was about a police shooting. It was a civil case in which the jury would decide whether or not the officers who shot a young man were liable for a wrongful death. I can barely begin to speak about this trial without tears.
The case was brought by the family of Anthony Banta, 22 years old, killed between 3-4am on December 27, 2012.
There was reason to suspect that excessive use of deadly force was applicable in this case. It was an extremely difficult determination. Four officers responded to the 911 call for help. Here is what happened at approximately 3:20am that night/morning.
It was the day after Christmas. Anthony and his roommate, Parker, and Parker’s girlfriend, Sarah, had watched “Ted” together (the movie about a talking teddy bear). After the movie, Sarah and Parker went upstairs to bed around midnight. Sarah fell asleep immediately, Parker played Madden NFL while sitting in bed. Hours later she awoke when she felt an elbow or something hit her head, and she saw Anthony on top of Parker, on the bed, straddling him, choking him. Parker yelled his name several times, saying “Anthony, wake up!” as they struggled and he tried to push him off. Sarah tried to help push him off, but was tangled in bedding that was pinned down by Anthony’s position. Eventually Parker managed to push Anthony off and he fell and hit his back real hard and did not react to that at all, he continued to come at Parker.
The struggle continued. Anthony got Parker in a choke hold and he was fighting for their lives – afraid that if he went unconscious, Sarah would be seriously hurt or killed. He managed to get Anthony out of the bedroom. Sarah jumped out of bed and shut and locked the bedroom door and call 911. She immediately told the dispatcher that Anthony was “sleepwalking again”. We listened to the entire dispatch call, it was horrific, the terror in her voice and how frantic she was, pleading, “please help us, oh god, please hurry”. The dispatcher had difficulty understanding her because she was gasping for air and not making sense. When we listened to it, it was in a calm setting, but for the dispatcher, it must have been hard to understand what was going on – it sounded like they needed a medic and she transferred the call to the Fire Dept. Meanwhile, Parker and Anthony are downstairs and Parker is still yelling at him, trying to snap him out of it.
Parker testified that Anthony went to the kitchen and opened the drawer where his blue chef knife was kept, and he wrestled with him to stop him from getting the knife. Upstairs, Sarah was looking for a piece of mail to get the exact street address of this apartment because she only knew how to get there, she did not have the address number memorized, and she was hysterical, afraid at what might be happening outside the door.
Parker managed to open the front door and shoved Anthony outside and locked him out. He hurried back upstairs and was then able to tell the Walnut Creek Police dispatch a little more, but he too was frantic and out of breath.
Dispatch radioed WCPD patrol officers that they had received a call from a female barricaded in a bedroom or closet and a male with a knife at this unit. Moments later they informed the officers who were responding to the call, locating the apartment, that there were two people – the female and her boyfriend – locked in the bedroom and a third party with a knife. The dispatch did mention that the third party was known to them and his name was Anthony, however, the officers did not hear that radio transmission, they were already rushing to the scene, or getting out of their cars, or trying to find the unit, so it seems they really did not know that the man with the knife was not an intruder.
Another transmission told them that there was a struggle going on. [Edit: Anthony had broken through the kitchen window and was back at the bedroom door, trying to get in, while Parker and Sarah were using their bodies to hold it shut, the lock was almost completely broken, and the door had a lot of damage on both sides.] Then seconds later, dispatch again reported to the officers responding that “there’s a struggle…the line went dead.” Now the officers have no line of communication with the people who have been attacked by someone with a knife.
When they arrived at the unit – two officers arrived before the other two – the first two tried to get someone to open the front door – yelled “Police, open the door” and Sgt. Sugrue kicked at the door, but it didn’t open. Officer Connors noticed a tall window on the left that was busted inward, indicating that someone had broken into the apartment. She entered through the window and called to Sugrue about that and he followed her in.
These two officers quickly checked the immediate rooms to see if anyone was there, hiding or hurt, and then proceeded to the bottom of the stairs. At first, they only saw the back side of a man, but eventually Anthony faced them, at the top of the stairs, they were at the bottom, and now all 4 officers were crowded at the bottom, looking up at him, and 3 of them saw the knife in his hand. It was a big, blue knife. They questioned briefly if it was a real knife because of the color, but Connors confirmed because her flashlight caught the glint of the sharp edge. They yelled at him to drop the weapon, drop the knife, show us your hands, drop it and he did not react to their presence in any rational manner. He looked sweaty, pacing a little, and his eyes were wide and it seemed as if he was looking right through them.
He may have been sleepwalking during a nightmare or having a psychotic episode, or on drugs, whatever the case, he was not complying, and there were two people upstairs behind him who could be bleeding to death. Sgt. Sugrue yelled “Taser” and Officer Ezard holstered his firearm and got his Taser out and aimed it up the stairs.
The officers saw him move down the stairs with the knife pointed out at them and they fired the first volley of shots and the Taser, and moved to get out of the landing area because he still had the knife and there was so little room at the bottom, he would have landed right on them. One officer felt a bullet or slap on her leg and it was later discovered that one of the shots fired had gone through the pocket in her cargo pants that had gloves in it. Officer Ezard was pushed backward and hit the front door with his back and heel, hard enough to leave busted areas on the inside of the door.
Connors, Sugrue and Griffith had managed to get to the side of the stairs and back toward the living/dining area. Connors radioed “Shots fired”. All 4 could see Anthony at the bottom of the stairs, but each had a different angle or vantage point. Ezard was closest and had a more direct line of sight and could see the knife still in his hand. Sugrue could see the knife, still in his hand. Connors and Griffith could only see the back of his head and his back and that he was still moving. None of them saw any blood or evidence of injury. Anthony rose up with the knife after he was commanded to stay down, and Sugrue and Ezard fired a few shots. Connors radioed “Shots fired. Code 3 medical,” meaning the emergency medical team should be ready to enter, but not enter yet – it was still uncertain whether it was safe for them. A few seconds later, Sugrue radioed “Code 4 medical, start notifications,” meaning it was safe for EMT to enter.
Connors went upstairs to check on the victims. Sarah and Parker were still locked in the bedroom. Sarah was crouched in the back of the closet. Parker was on his knees near the door and his first question was, “Is Anthony okay?” This is when the officers learned he was their friend, not an intruder, and that he was “not himself”, “that wasn’t Anthony,” he had never done anything like that.
The question before us was whether or not the shots fired at the bottom, the 2nd “volley”, was excessive use of deadly force. It was a horrendous burden to have to put these pieces together, put ourselves in the shoes of both parties – the Banta family who wants justice for Anthony – did he have to die that night? Was it necessary for these officers to have their guns pointed at him at the bottom of the stairs. Was it necessary for them to fire a second time? Was there another way, a less lethal way, of dealing with this threat? We all wanted to tell these officers that it was not necessary for Anthony to die that night. We deliberated passionately and with tears over it. But the point that caused me – I can’t speak for others – to concede that the 2nd volley was objectively reasonable under the circumstances was that in their minds they had been called to help two people who were likely injured and very probably could be bleeding to death upstairs, and this person with the big knife was not responding in any kind of rational manner to four police with guns aimed at him, commanding him to put down the knife, or to stay down after he had come down at them with the knife. Every second mattered. If they had regrouped, spent 10 more seconds re-evaluating and deciding whether to try another Taser or pepper spray or a baton, it might be too late for the victims upstairs – the people who had called for help.
There are many things I could say about what could have been done better, more professionally, but that all had to do with the dispatcher’s handling of the call and relaying of information, the way the officers confronted Anthony when it was initially obvious that he was either on drugs or having a mental breakdown – hallucinating or something – he was not in his right mind, that was obvious – they could have and should have diffused the situation with their voices, but that’s hard to stick to, that judgment, because in the moment, with adrenalin, with the impression that someone who is clearly out of touch with reality, has attacked two people with a knife, and is now facing you with a knife and starts to come down the stairs … hopefully you see that it is only useful in hindsight to ponder what they could have done differently. All I can say now is that the City of Walnut Creek came very close to an expensive bill for punitive damages. Had this jury been given the assignment to decide on other aspects of the case, our verdict was likely going to be in favor of the Plaintiff, in my humble opinion. But the task we were given was only this:
1. Do you believe that the blue knife was still in Anthony’s hand at the bottom of the stairs? Yes or No
2. Do you believe that at the bottom of the stairs Anthony was still moving and posed an immediate danger to the officers or others?
(As I said above, I conceded on the point of “immediate danger to others” because if the officers had moved away and tried to re-negotiate with him, the people upstairs who had been attacked might have bled to death, for all they knew – they were sworn to serve and protect, and Anthony was still moving, still non-compliant, and still had the knife in his hand, according to forensic evidence. So, although I disagreed that he posed an immediate danger to the officers, because they had the opportunity to move away and get another Taser out or use pepper spray or perhaps even attempt to knock the knife out of his hand with a baton…all of those decisions put the victims upstairs at risk, in their minds, two people had been attacked and were probably in need of immediate medical attention which they could not receive until Anthony was in custody.)
3. Do you believe that Sgt. Sugrue violated Anthony Banta’s 4th Amendment rights under the U.S. Constitution?
4. If yes to the above, do you believe it was done with malicious intent or reckless disregard for life? (Paraphrasing there, I do not have the exact questions before me now.)
5. Do you believe that Officer Ezard violated Anthony Banta’s 4th Amendment rights… and question 6, if yes… same as above.
7. Do you believe that the shots fired at the bottom of the stairs by Sgt. Sugrue were excessive use of deadly force? (This was a State law question, the above questions 3-6 were Federal issues.)
8. Do you believe that the shots fired at the bottom of the stair by Officer Ezard were excessive use of deadly force?
The jury was composed of a librarian, a baker, a restaurant owner/manager, an IRS manager, an editor for the Wall Street Journal, a FedEx driver, a facilities engineer, and myself, an executive assistant for Red Hat. None of us wanted to say it was necessary for Anthony to die that night. None of us wanted to let police officers off the hook for shooting and killing this young man. Unfortunately, the evidence corroborated their version of events. There were blue pieces of the shattered knife handle at the bottom of the stairs – the hand was not shot at the top of the stairs or even midway as he came down. It is likely that Anthony managed to rise up enough to trigger that 2nd volley. It is likely that the bullet that entered his left eye and was the fatal wound was the bullet that had hit the hand and knife handle, broken it, exited the hand, and that his hand was probably in front of his face at the instance, so that that bullet went into his eye and killed him. It was more probably true that the two bullet wounds in his back (upper left shoulder) that had entered at a downward angle, from top to bottom, and lodged in his ribs and punctured his lungs – that those bullets entered his body as he fell forward, split seconds of the fatal wound. The amount of blood in his lungs, and the amount of blood outside of his body, on the hand, on the stairs, on the floor, indicated that his heart had stopped beating within seconds of the hand wound and back/lung wounds. Furthermore, the shot to his right leg that shattered the femur, was not obvious and the officers could not have known he was unable to get up, because he landed on his right side, concealing that injury, and the amount of blood on the floor under his leg was not much, so all of this happened very fast and the officers did not know that he was unable to get up and make another assault.
The entire situation was a terrible tragedy. These peace officers did the best they could with what they knew to serve and protect the people who had called for help. I hope they will use this experience to train dispatchers and first responders about crisis intervention procedures. I hope that peace officers will be given more options, better options than pepper spray and Tasers – other types of force options that aren’t as deadly as a hollow-point 40-caliber handgun.
My heart cries out for Anthony and all who have lost his presence in their lives.