FAYETTEVILLE -- Rogers police who shot and killed a knife-wielding, mentally disturbed woman at a convenience store caused the deadly situation to escalate and should not be entitled to qualified immunity, according to a response filed in a federal lawsuit.
Fallon Frederick was shot to death Aug. 1, 2011, when three Rogers police officers responded to her 911 call for help in a convenience store at New Hope Road and Eighth Street. The entire encounter lasted less than two minutes and was captured on security video.
Legal lingo
Summary judgment
A decision made on the basis of statements and evidence presented in the legal pleadings and documents filed without a trial. It is used when there is no dispute as to the facts of the case, and one party is entitled to judgment as a matter of law. Summary judgment is properly granted when the evidence in support of the moving party establishes that there is no genuine issue of material fact to be tried. A material fact is one which tends to prove or disprove an element of the claim.
Source: uslegal.com
Frederick was suffering from paranoid schizophrenia and thought she was being followed or pursued, according to the lawsuit. She was cowering in the corner of the store in a defensive position with her purse and a knife when police arrived, according to the lawsuit. The lawsuit contends officer Nick Torkelson shocked Frederick with a stun gun. She tried to get away, and officer Vence Motsinger shot her several times. Frederick then was handcuffed and died at the scene.
A motion to throw out the case filed in late May contends the officers had ample reason to fear for their lives and the safety of bystanders when they shot Frederick. The motion for summary judgment contends Frederick wasn't cowering in a corner and had methamphetamine in her system.
But, in a response filed last week, lawyers for Frederick's family contend police should have taken time to try talking to Frederick before using the stun gun. The stun gun didn't incapacitate Frederick and, instead, caused her to react violently and led to her death.
"In this case a jury could reasonably confer that there is no attempt to deescalate the matter and that the escalation caused the death, everybody agrees that the proper thing to have done was to wait," according to the response. "Clearly, it is a question of fact to whether waiting less than two minutes is really and truly any type of wait. The death easily could have been prevented if there had been a delay."
A total of 110 seconds elapsed between the time the first officer entered the store and the stun gun was used against Frederick, according to the response. Frederick moved toward the officers three seconds later and was shot three times two seconds after that, the response contends.
In addition, the response argues while Frederick didn't immediately drop the knife, it wasn't illegal for her to have it. Further, it contends she committed, at most, the crime of disorderly conduct, which is a misdemeanor and doesn't justify the use of deadly force.
There's a material issue of fact whether the stun gun was necessary, according to the motion. It claims the use was an unreasonable and unjustified use of force directly leading to Frederick being killed. The motion seeks a jury trial.
The motion to dismiss the case contends the officers repeatedly asked Frederick to put down the 4-inch folding knife and attempted to use the less-than-lethal stun gun to subdue her, but one of the probes hit Frederick's purse.
Frederick then charged the officers, running toward them, knife raised, down the 4-foot wide, 15-foot long aisle, according to the motion to dismiss. The relevant question is whether the officers believed their lives or the lives of others were in danger at the moment the shots were fired, the motion said.
The lawsuit names the city, Motsinger, Torkelson and officer Scott Clifton in their individual and official capacities.
The lawsuit claims the three officers used unreasonably excessive and deadly force. And, the suit claims, the city failed to properly equip, train, supervise and control the officers regarding the use of force and techniques to properly restrain and control a person suffering from delusions and mental illness.
An investigation by the Benton County prosecutor determined the shooting by Motsinger was justified.
The lawsuit was filed in July 2013 by Frederick's family. The suit seeks $5 million in actual damages and $30 million in punitive damages.
NW News on 06/29/2016