Three years after it was filed, aspects of the civil lawsuit brought by Ariane McCree’s estate will finally be heard in court next month.
In November 2019, McCree was shot by the two officers in the Chester Walmart parking lot. McCree went to the store on November morning. 23 to lock the door. He left without paying for the item, returned later, and was to receive both a trespassing notice and be arrested for shoplifting. He was handcuffed and taken to a loss prevention office, where videos previously obtained by the News & Reporter showed him shoving Nicholas Harris (an off-duty Chester City policeman working for security) and running away of the shop.
He was chased through the parking lot and had a second encounter with Harris in which the officer said McCree headbutted him (it was hard to discern in the video exactly what happened during this meeting). A witness said McCree managed to get to his car and retrieve a handgun, which he pointed at Harris. At this point, Harris fired shots at McCree, but his gun jammed twice and he ran out of ammunition. Officer Justin Baker was on his way to pick up McCree for the shoplifting charge and first heard over his radio that McCree had escaped, then heard calls for “shots being fired”. He got out of his car and encountered McCree, still handcuffed, brandishing his gun on his hip. After being ordered to drop the gun, Baker fired several shots, three of which hit McCree (in the arm, chest, and hip). When McCree fell, Baker walked up to him, took the gun (which McCree had bought from Rock Hill in 2016) from his hand, and attempted to handcuff him, only to find he was already handcuffed. He applied pressure to the chest injury until EMS arrived on the scene. McCree was pronounced dead shortly thereafter.
The officers were eventually cleared of any wrongdoing by the office of State Attorney General Alan Wilson, whose office ruled the men acted in “self-defence and defense of others at the scene”.
The report’s full account said McCree had been “depressed” and “depressed” in the weeks leading up to the shooting. He was apparently disappointed at not having had the opportunity to play football professionally (he was an all-conference player at Jackson State) and his generally upbeat demeanor reportedly changed after he was shot and robbed while living in the Tennessee. He had recently lost his job and was reportedly upset that he could not buy his child’s Christmas presents. A friend of his had recently been killed and he reportedly started arguing and was “talking crazy”. He had trouble sleeping and may have been awake for a week at the time of the incident.
Vickie McCree (Ariane’s mother, listed as a personal representative for her son’s estate) has filed a federal civil rights lawsuit against the City of Chester, Walmart, the two officers and the Chester Police Department (which was removed from prosecution last year). The lawsuit alleged excessive use of force and unlawful seizure in violation of the Fourth Amendment and bystander liability. Other claims under state law were filed for false arrest and false imprisonment, negligence, gross negligence, and wrongful death. Additional claims of negligent hiring, supervision and retention have been made against the City of Chester.
Federal magistrate Paige Gossett drafted a recommendation in August alongside the officers and Walmart in their request for summary judgments in their favor. The City of Chester subsequently argued for summary judgments on most of the same grounds.
Harris argued that he was entitled to summarize judgment on the false arrest complaint because he had probable cause to arrest McCree for petty larceny shoplifting.
“The court agrees,” Gossett wrote. “To establish a…claim of unlawful arrest in violation of the Fourth Amendment, the plaintiff must show that the seizure of his person was unreasonable, that is, he must show that he was arrested without cause likely.”
Gossett said the McCree estate did not. At the time of the arrest, information officers said McCree took the padlock from a cash register, told a cashier “put it on my bill” and left the store without paying. When he returned to the store, he admitted to taking the lock without paying for it and offered to pay at that time.
“Plaintiff argues that probable cause was negated by the fact that McCree offered to pay for the set of door locks when he returned to the store…However, prior to McCree’s return, officers already reasonably believed that McCree had stolen the door lock set and Walmart had already decided to press charges,” Gossett wrote.
In fact, officers could have accepted McCree’s offer to pay for the lock upon his return as an admission of guilt, according to Gossett.
Harris and Baker both argue that McCree’s shot did not constitute excessive force and the court agreed with that assessment, saying courts must look at the totality of the circumstances to determine whether the force used was objectively reasonable. Other facts also gave officers additional reason to believe that McCree posed a threat according to Gossett. While handcuffed, he had previously assaulted Harris inside the store and fled. He then retrieved a gun from his car and approached Harris. He pointed the gun at Harris and at that point the officer “reasonably believed that McCree intended to shoot him because rather than flee the scene after he assaulted Harris in the parking lot, McCree s re-engaged with a gun and pointed it at Harris.” The officers’ justification for using lethal force never wore off because McCree kept pointing his gun at them.
Baker knew shots had been fired and that Harris was out of ammunition. At the time he was shot at McCree, McCree had not only refused to drop the gun when ordered by Baker, but pointed it at him.
“The law of this circuit simply does not require police officers to risk being shot when confronted by a violent, armed arrestee pointing a gun at them,” Gossett wrote.
The McCree Estate argues that a reasonable jury could determine that McCree was never armed or pointed his gun at the officers. Gossett notes, however, that plaintiff’s arguments “suffer from two fundamental flaws”, these being any affirmative evidence in the record to support their theory and that “any inconsistency in the record upon which it relies is not not genuine or is irrelevant to the question of whether the officers used excessive force, or both.
Gossett further stated that the plaintiff “simply assumes in her briefing that the witnesses are lying” and essentially asks the court to disregard all of the uncontested evidence in the record. An argument is made that Harris’ testimony is not credible because it is “selfish”. They also seize Harris’ testimony (from this case and his workers’ compensation claim) that McCree’s head injuries from headbutting caused him “severe memory deficits.” The plaintiff cites instances where Harris said he could not remember key facts or gave inconsistent testimony.
Plaintiff points to no evidence that Harris’ memory problems caused him to misremember material facts in this case. Plaintiff’s insinuation that Harris is sometimes forgetful is not evidence that Harris misremembered the specific facts of this case,” Gossett wrote.
The court also accepted Walmart’s assertion that the plaintiff could not demonstrate an underlying violation of the Constitution since “corporations can be held liable … if an official corporate policy or custom results in the deprivation federal rights by a person acting under the guise of state law…however, policy or custom alone cannot support a claim against a corporation in the absence of an underlying constitutional violation Plaintiff has failed to demonstrate that McCree’s Fourth Amendment rights were violated by Walmart.
District Court Judge Joseph Anderson will decide whether to grant summary judgment or order a jury trial. He will hear arguments on the matter in federal court on January 17. ten.
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