MARSHALL 性视界传媒 A federal judge declared a mistrial this past week in a civil lawsuit stemming from the 2018 death of 61-year-old Hallsville resident Arther McAfee Jr., who was shot by a Harrison County sheriff性视界传媒檚 deputy during a welfare check.
According to the lawsuit filed in December 2018, former Sgt. Jeff McAndrews was accused of using excessive force resulting in the death of McAfee 性视界传媒渦nder the color of law in violation of his individual rights under the Fourth Amendment of the United States Constitution and in violation of his civil rights.性视界传媒
The lawsuit went to a jury trial after the dismissal of an appeal filed in the U.S. Court of Appeals for the Fifth Circuit by attorneys for the defendants, McAndrews and Harrison County.
U.S. Magistrate Judge Judge Roy Payne of the Eastern District of Texas in Marshall granted mistrial motions from the plaintiff and defense
性视界传媒淧laintiff first moved for mistrial in response to defendants性视界传媒 use during the opening statement of a photograph taken at the scene by Texas Rangers性视界传媒 investigators,性视界传媒 Payne wrote in his order to grant the mistrial. 性视界传媒淭he photograph of the site where a bullet was found in the wall near the body was part of a compilation of 289 photographs from the investigation.
性视界传媒淭he specific photo 性视界传媒 is not on the court性视界传媒檚 notes from the exhibit hearing as one of the dozen or so photographs pre-admitted from that compilation. It appears that it should not have been shown to the jury during openings.性视界传媒
Payne noted that attorneys for the defendants moved for a mistrial later when the second witness, a former sheriff性视界传媒檚 office dispatcher, was asked by plaintiff性视界传媒檚 attorneys whether she knew McAndrews had two DWI arrests.
性视界传媒淧laintiff性视界传媒檚 counsel attempted to justify the question by arguing that (a defense attorney) had opened the door by testifying that Sgt. McAndrews was a good deputy who had done several good things on duty,性视界传媒 the judge wrote. 性视界传媒淭he DWI arrests were inadmissible as well as irrelevant.性视界传媒
Payne said there were many other times during the few hours of testimony where each side asked improper questions.
性视界传媒淲hen this case is reset for trial, sanctions will be imposed for any such behavior,性视界传媒 Payne warned in his order. 性视界传媒淭he unfortunate lesson for the court is that neither side can be trusted with the usual courtesies. An order resetting the trial will issue in due course.性视界传媒
McAfee性视界传媒檚 family is being represented by Dallas-based civil rights attorney Daryl K. Washington. Washington represented the family of Botham Jean in the 2019 trial of former Dallas police officer Amber Guyger, who was found guilty in the 2018 fatal shooting of Jean.
McAndrews and Harrison County are being represented by Chad Rook and co-counsel Robert Davis of Flowers Davis of Tyler.
In his Jan. 16 order, Payne set the liability issues remaining for trial:
Whether at the time that McAndrews shot McAfee that McAfee posed a threat of serious physical harm, either to McAndrews or others
If not, whether Harrison County性视界传媒檚 policy of allowing a single deputy to respond to a call for a welfare check regarding a mentally ill person was a moving force behind the use of excessive force;
And similarly, whether the county failed to provide adequate training to McAndrews on the use of his Taser in a manner that was a moving force behind the use of excessive force.
In addition to the excessive force claim, the plaintiffs also alleged that Harrison County and its policymaker, specifically the county judge at that time, Hugh Taylor, sheriff at that time, Tom McCool, and the county commissioners, at that time, delegated with authority for setting policies, including training of the sheriff性视界传媒檚 office, had a duty, but failed to properly supervise, screen, discipline, implement and/or enforce policies, practices and procedures for the sheriff性视界传媒檚 office that respected McAfee性视界传媒檚 constitutional rights to protection.
性视界传媒淗arrison County and its policymakers性视界传媒 failure to implement the necessary policies and the implementation of unconstitutional policies caused McAfee性视界传媒檚 unwarranted and excruciating physical pain and suffering and mental anguish,性视界传媒 the lawsuit states. 性视界传媒淔or these civil rights violations and other causes of action discussed herein, plaintiff seeks answers and compensation for damages.性视界传媒
Background
According to the lawsuit, on Jan. 20, 2018, McAfee性视界传媒檚 sister, Ollie Holman, called 911 requesting a welfare check on her brother because their sister, Lorine McAfee, who is also Arther McAfee性视界传媒檚 性视界传媒檚 neighbor, not only concerned about his health but worried that he hadn性视界传媒檛 answered her phone calls or knocks on his door in a few days.
The family said Holman clearly relayed to the dispatcher that McAfee suffered from a mental disability.
Addressing the jury, Washington, representing the plaintiffs, argued that McAfee was startled and didn性视界传媒檛 recognize his sister when she entered his home, and he leaped out of bed, attacking her.
性视界传媒淗ere性视界传媒檚 how we know he didn性视界传媒檛 know it was his sister. The very first thing he said was: 性视界传媒楲orine, is that you? I性视界传媒檓 sorry Lorine.性视界传媒 You heard him,性视界传媒 Washington told jurors, reflecting on McAndrews性视界传媒 body cam video recording shown in court. 性视界传媒淗e said, 性视界传媒楲orine is that you? Are you alright, Lorine?性视界传媒櫺允咏绱綕
性视界传媒淎t that very second, he was not swinging. He realized that性视界传媒檚 my sister, (and said): 性视界传媒楲orine, are you Ok性视界传媒. At that very moment, Deputy McAndrews had the opportunity to deescalate. But defendant McAndrews will tell you Mr. McAfee took his Taser and was Tasing him. You性视界传媒檒l see that Taser was behind that back door and Mr. McAfee was in the bedroom.性视界传媒
Washington contended that McAfee had a difficult time turning on his back as McAndrews commanded because he was a disabled veteran who wore a back brace, suffered from neuropathy and wore a boot.
Washington stressed Harrison County性视界传媒檚 lack of training dealing with people with mental illness, saying that when McAndrews used deadly force he was not in fear of imminent harm.
Rook, representing the defendants, said the incident has greatly impacted McAndrews who has 性视界传媒渟evere PTSD.性视界传媒
性视界传媒淓vidence will show Sgt. McAndrews went out and did a welfare check and ended up in the fight of his life, but not also the fight of his life but of Lorine, McAfee性视界传媒檚 frail, elderly sister,性视界传媒 Rook told the jury. 性视界传媒淩etreat was not an option.性视界传媒
He said McAndrews tried to protect Lorine.
性视界传媒淧erhaps if (McAfee) was not beating his sister, Sgt. McAndrews could性视界传媒檝e walked away. But he had a sworn duty to protect her,性视界传媒 Rook said. 性视界传媒淗e acted without hesitation to put himself in harm性视界传媒檚 way. He could性视界传媒檝e pulled his gun, could性视界传媒檝e used it right then.性视界传媒
Explaining why only one officer arrived to the scene in response for a welfare check after being told McAfee had mental issues, Rook said the sister who made the call, Ollie, didn性视界传媒檛 sound distressed.
性视界传媒淭here was nothing said about him being violent, nothing,性视界传媒 Rook said. 性视界传媒淢r. Washington tells you Harrison County should性视界传媒檝e sent two officers out there. He性视界传媒檚 correct. What he didn性视界传媒檛 tell you was a manhunt was going on and three or four officers cover a shift (for) over 900 square miles.性视界传媒
Rook said McAndrews was kind and concerned as he entered the home and didn性视界传媒檛 come in with his gun drawn. He said McAfee was the one who jumped off the bed.
性视界传媒淗e gets hit, pushed back. What happens is the sister gets between the two of them. Arther starts punching her in the head,性视界传媒 Rook said. 性视界传媒淢cAndrews gets his Taser. It性视界传媒檚 unsuccessful. You性视界传媒檒l see when he knocks her off, the body cam falls. It性视界传媒檚 upside down so you can性视界传媒檛 see anything, but you can hear. He repeatedly tells him to get on his stomach.性视界传媒
The defense argues that McAfee attempts to use the Taser on McAndrews. He said the confrontation can be heard on the body cam but not seen since the body cam fell during the tussle.
性视界传媒淗e gave him instruction after instruction, and unfortunately that性视界传媒檚 how it ended the way it did,性视界传媒 Rook said. 性视界传媒淎rther gained control of his Taser. Sgt. McAndrews feared for his life and Lorine性视界传媒檚. He pulled his gun. He fired and shot. Mr. McAndrews性视界传媒 got a (family), and he性视界传媒檚 got every right to go home to them.性视界传媒
