Audio recording from Texarkana, Texas, Police Officer Brent Lawing's body mic, which captured the moments before, during and after a schizophrenic man holding a spoon was shot in a neighbor's garage in the early hours of Dec. 15, 2014.
A lawyer representing the family of a schizophrenic man who was fatally wounded in a neighbor's garage and a lawyer representing the police officer who shot him faced off Wednesday morning at a hearing before a federal judge in Texarkana.
Dennis Grigsby Jr., 35, was shot once in the chest by Texarkana, Texas, police officer Brent Lawing at about 2 a.m. Dec. 15, 2014, in a garage directly across the street from the house on Page Street where he lived with his mother and stepfather. Lawing was the first officer to respond to a panicked 911 call from one of two adults who lived in the house with seven children. The homeowners reported that a man wearing pajamas was in the garage, which was secured with tarps instead of typical garage doors, and tapping on a window into the home with a tool.
Lawing said he shot because Grigsby was coming toward him in the darkened space with what appeared to be a knife in his hand. The shiny metal object turned out to be the stem of a spoon. Grigsby's parents filed a wrongful death suit in the Texarkana Division of the Eastern District of Texas accusing Lawing of using excessive force after a Bowie County grand jury declined to indict.
Texarkana lawyer Bob Weber, who represents Lawing, has filed a motion essentially asking for a dismissal of the case. Weber argues Lawing is protected from the suit by qualified immunity. Derrell Coleman of the Shaw Law Group in Gun Barrel City, Texas, has responded with arguments that the case should proceed. Wednesday morning Weber and Coleman argued their positions before U.S. Magistrate Judge Caroline Craven.
During the hearing, Weber played a recording from Lawing's body microphone. The sound of a dog barking can be heard as Lawing's footsteps crunch ground in the driveway after he exits his patrol car, parked on the street and heads toward the garage. As Lawing approaches, a moaning sound can be heard coming from inside.
In Coleman's response to Weber's motion, Coleman states Grigsby was moaning the words, "I'm hungry." During Wednesday's hearing, Weber told Craven that some who have listened to the recording believe Grigsby is saying "I'm hungry," or "I'm cold," but that Lawing maintains he did not hear Grigsby moan.
According to case filings, Lawing drew his service weapon and used his flashlight to push aside one of the tarps and step into the garage. In the recording, the moaning stops and Grigsby can be heard saying, "Get that light out of my face."
That statement is followed by Lawing's voice, ""Hey, set it down. Set it down, man. Set it down," before the sound of a shot is heard. Lawing next can be heard calling for an ambulance and instructing Grigsby, who was apparently moving, to "let it go," referring to the object in his hand.
The male homeowner approaches after the shooting and states that Grigsby was tapping on the window in the garage. Lawing responds, "Yeah, he tried to stab me with it," and the recording ends.
Coleman's filings fault Lawing for failing to identify himself as a police officer and questions why Lawing didn't park his cruiser in the driveway and use headlights to illuminate the garage. Coleman argued that information from dispatchers that the man in garage was wearing pajamas and the sound of his moans should have alerted Lawing to the possibility that he was not dealing with a burglar but rather some other type of situation.
Weber argued Wednesday that qualified immunity protects police officers from suit unless their conduct is "plainly incompetent or in knowing violation of the law."
Weber said Lawing didn't call out or use the patrol car's headlights because he didn't want to put himself in danger by revealing his location. Weber argued the court is required to consider whether Lawing's actions fall within the realm of conduct a "reasonable officer" would have engaged in given similar circumstances.
"The objective reasonableness standard recognizes that police officers must make split second decisions in uncertain, tense, dangerous and rapidly developing situations," Weber said. "They are not to be judged with 20/20 hindsight."
Weber went on to cite case law that supports the defense's theory that the court must consider not the time leading up to a use of force or whether the use of force could have been avoided if the officer had acted differently earlier in a developing confrontation, but whether the officer had reason to believe "at that moment" that they were in physical danger.
"The question is, did he have reason to believe there was an immediate threat of physical harm at that moment," Weber argued.
Weber said that appellate courts have ruled in other cases that if an officer's decisions are deemed to have helped create a dangerous situation, the officer is not liable if they respond with deadly force to a physical threat. Weber couched that statement with a defense of Lawing's actions.
"I want to make it absolutely clear. In no manner do we contend that Officer Lawing was negligent in any manner," Weber said.
Coleman noted that a jury might find questionable Lawing's statement that he did not hear Grigsby moaning in the garage before he shone a light on him.
"He said he heard tapping, so he had some idea of where he was located," Coleman said. "That moaning is not the sound of a man who is committing burglary or who is an imminent threat."
Coleman went on to say that a jury might believe Lawing did hear Grigsby's moans as Lawing acknowledged hearing tapping and to hearing Grigsby when he objected to a light in his face.
"The tapping is not audible," Coleman said referring to the body mic recording. "The moaning is audible."
Craven asked Coleman what difference it would make legally if Lawing had heard Grigsby moaning when evaluating his decision to fire a shot at a man who was coming toward him with a raised arm with an object that appeared to be a knife.
"He should have responded to the moaning," Coleman argued. "If he'd identified himself, we wouldn't be here."
Weber countered by stating that Coleman's argument that Lawing "should have" done something differently doesn't meet the legal standard necessary to get around the qualified immunity that should protect Lawing from liability.
Craven told the lawyers she expects to issue a report and recommendations within the next several weeks. The report Craven will create will include a legal analysis of the case and whether she believes the defense's motion for summary judgement should be granted or denied. Either side can object to Craven's findings and recommendation. U.S. District Judge Robert Schroeder III can adopt Craven's report and recommendations or he can choose to write an opinion of his own if his analysis of the case differs from Craven's.