How the Family of Hannah Fizer Can Take Legal Action for Answers

How the Family of Hannah Fizer Can Take Legal Action for Answers

The recent actions of Pettis County Sheriff Kevin Bond following my request for documents under the Freedom of Information Act (FOIA) have significantly hurt our ability to find out who shot Hannah Fizer. We do not believe that Bond will ever voluntarily release the name of the deputy. We say this because of how much time has gone by. It has been nearly three weeks since one of his deputies gunned down an innocent unarmed 25 year old woman in her car. Now, to Bond’s credit he did turn the investigation over to the Missouri State Highway Patrol (MSHP) and the MSHP has yet to officially issue their findings one way or the other, but the amount of time that has gone by does not look good and neither do the comments made by the MSHP. At this time I recommend that the Fizer family start planning to pursue civil remedies to find out who shot Hannah and hold him accountable.

POLICE DISCLOSURE TIMELINE EXAMPLES

Often if investigations into police misconduct find a smoking gun they are quick to say so, especially during times of protest. For example, the cops that killed George Floyd were all charged within 10 days (https://copblaster.com/blast/25759/all-minneapolis-officers-now-arrested-for-george-floyds-murder), the cops that killed Rayshard Brooks were all charged within 5 days (https://copblaster.com/blast/25786/atlanta-police-officer-garrett-rolfe-fired-for-rayshard-brooks-killing), and the cop that struck a fleeing suspect with SUV in Florissant was charged within 11 days (https://copblaster.com/blast/25767/florissant-police-detective-joshua-smith-suspected-in-vehicle-assault).

There are of course recent examples of agencies taking much longer. For example, The Philadelphia Police took over three weeks to officially name the officer that assaulted kneeling protesters (https://copblaster.com/blast/25817/philadelphia-police-officer-richard-p-nicoletti-fired-for-676-attack). I suspect that the MSHP will release their official findings in the near future, but that those findings will not support charging the deputy that shot Hannah. I say this because of what they have released so far. So far they have said that she did not have a gun in her car and that there is surveillance video from a nearby restaurant. They say that the video has no sound, shows Hannah moving around her car while the deputy has his gun drawn, and then he shot her five times. That would be more than enough to charge a civilian with murder, but usually the bar for charging cops is set so high that if there is any plausible argument in his defense no charges will be filed. Sheriff Bond would likely continue calling it a “non compliant situation” and say that nothing proves his deputy was lying when he called out over the radio that Hannah threatened to shoot him (see video with radio chatter below). The MSHP, which employs several people from Pettis County including former local law enforcement personnel, are approaching this like they do all officer involved shootings, with an agenda to find excuses not to charge their fellow officer. If the only audio from that night is the deputy saying on the radio that she was threatening him and the only video shows anything but total compliance they will side with the deputy. They will say that they believe that the deputy thought she might be reaching for a gun while she was moving around in her car and that he opened fire out of fear that if she found a gun. I am playing devil’s advocate here, so obviously I don’t think she did anything to justify shooting here. I don’t think she threatening to shoot him and if she did say anything about “shooting” it was probably about shooting video. I give no credibility to the deputy saying he was being threatened on the radio because it is common practice for police to yell out things that might justify using force before and while using force (ex: yelling “stop resisting” while beating a compliant subject on the ground). I also do not agree that police are justified shooting subject that could be reaching for an unknown object just in case that object is a weapon, but that has not stopped the legal system from defending officers in such cases (ex: black teenager shot reaching for waistband even though officer admitted he did not see anything https://copblaster.com/blast/3403/portland-police-kkk-liaison-andrew-hearst-shot-and-killed-a-black-teen).

LEGAL OPTIONS

Just because the police will likely continue to protect their own does not mean that the Fizer family will be out of options. They have legal options available to them that could be used to figure out who killed their daughter. I recommend that they file a federal lawsuit against Pettis County, the Pettis County Sheriff’s Office (PCSO), and the Deputy Unknown on Hannah’s behalf under 42 U.S.C. 1983 (https://www.law.cornell.edu/uscode/text/42/1983) for deprivation of civil rights under color of state law, common law wrongful death, assault, and battery. Once filed, the Pettis County would be legally required to turn over all the evidence they have during the discovery process. That would include the name of the deputy, the surveillance footage, phone records, documents from the internal investigation, radio communications, etc. If the Fizer family reads this I have no doubt that their first thought would be “we don’t have that kind of money,” then I have good news for them. They can pursue a lawsuit without having to pay for their own lawyer out of pocket. Any personal injury lawyer that is worth working with works on a commission basis so they would only have to pay if they win. Most bar associations have resources for people to get free legal advice including consultations, so they should go poke around the Missouri Bar Association website (https://mobar.org/). Unfortunately, without a smoking gun to show prospective lawyers it is really hard to get them to take your case. Fortunately, you don’t need a lawyer to file a federal lawsuit and it is fairly easy to prosecute a case through the discovery process acting as your own lawyer. They just need to pay a filing fee of a few hundred dollars and they may have to pay small fees to PACER sometimes (pacer.gov). When the discovery process is complete they can go back to the lawyers that originally rejected them with the new evidence and see if they change their minds.

PERSONAL EXPERIENCE

I speak from personal experience as a pro-se plaintiff in two pending federal lawsuits against law enforcement. I filed the first lawsuit in 2018 against the United States for the conduct of their employees under the Federal Tort Claims Act (FTCA) for among other things assault, battery, and torture by federal employees, see Sullivan v. United States (D.C. Oregon Case No. 3:18-CV-00110-JGZ). I filed the suit after the Department of Justice responded to FOIA with a denial and my appeals were denied. I realized that I had two options remaining for getting surveillance footage and learning who my abusers were. Those options were a FOIA lawsuit or going ahead with my planned FTCA lawsuit. For the sake of efficiency I chose the FTCA suit knowing that I would have more rights as a party to a lawsuit to demand evidence and because I was going to sue them anyway. As part of the discover process I learned the full first and last names of everyone involved, received copies of all documents, and copies of all surveillance footage. Unfortunately for me, the surveillance footage shows that the beating I suffered took place mostly in a blind spot, and the court has a summary judgment motion from the government pending before it. I insist that the lack of footage does not overcome medical evidence and other things the footage shows, but I am not optimistic. The reason I bring it up though is because I never had to spend any money to get the evidence. I filed as an inmate and was granted in forma pauperis status, but even if that were not the case my expenses by now would only be in the hundreds.

The other lawsuit I have pending is a suit against Multnomah County filed under 42 U.S.C. 1983 for deprivation of civil rights under color of state law, deliberate indifference to serious medical needs, assault, battery, and defamation, see Sullivan v. Multnomah County et. al. (D.C. Oregon Case No. 3:19-00995-JGZ copy of complain available at https://copblaster.com/uploads/files/sullivanvmultcoso.pdf). The lawsuit is based on an incident in which a corrections deputy intentionally broke my arm after I threatened to expose a group of them on this website. I was an inmate at the time, so they retaliated by using excessive force, breaking my arm, nearly smothering me to death, and accusing me of assaulting them. Because I was being held on a federal hold due to a pending supervised release violation proceeding, the deputies were considered federal officers under 18 U.S.C. 111. Section 111 entitles anyone that is assisting a federal employee or agency with the performance of their duties to the same level or protection as the federal employees and agencies themselves. At the time of my indictment it was just the word of an inmate (me) versus the word of over 5 sworn deputies. I was of course certain that the surveillance footage would show that they were lying about several things and therefore not credible.

Unfortunately, it turns out that the surveillance cameras in the upstairs housing units of the Multnomah County Detention Center (MCDC) are for “observational purposes only” which means they do not record. Corrections deputies, like Hannah’s killer, do not wear body cameras. Pettis County Sheriff Kevin Bond cites lack of funds and technical difficulties. Those problems do not exist in Multnomah County, but Multnomah County Sheriff Mike Reese remains silent on the issue. From my experiences as an inmate I know that the most likely reason why Sheriff Reese does not require jail deputies to wear body cameras is because they would do more to harm than good for his department. They would provide proof of all the times they use excessive force or write incident reports full of lies. Those liabilities outweigh the benefit of having footage of assaults on staff because they still have sworn deputies to provide witness testimony in those cases. The courts give law enforcement officers so much credibility that unless there is undeniable evidence of their lies they are believed. As a result, there are a innocent people in Oregon prisons for “assaulting a public safety officer” due to deputies responding to insults or non-compliance with force while claiming to have been assaulted.

I was one of the lucky ones because as a federal detainee I had access to better legal representation than most county inmates would. Some of the best criminal defense lawyers in Oregon do court appointed work because Criminal Justice Act (CJA) Penal attorneys are much better paid by the feds than local public defenders are by the county. Last checked, CJA Panel lawyers were paid over $130 an hour plus expenses while county public defenders made just $45 an hour. $130 is not nearly as much as they charge regular clients, but it is enough to give them a good steady guaranteed income when running low on retained clients. This also entitled me to better experts to review my case. One of those experts, Dr. Wilson “Tobey” Hayes is a former Harvard professor and an expert on bio-mechanics. Dr. Hayes concluded within a reasonable degree of scientific certainty that my explanation was the only explanation given that could possibly explain how my arm was broken (see Expert Witness Report pages 13-14 https://copblaster.com/uploads/files/expert-witness-report_compressed.pdf). Due largely to this report and the fact that the government had yet to find an expert to refute it by the eve of trial, the AUSA offered me a sentence of time served if I pled guilty to on count of a lesser previously uncharged non-violent offense for impeding a federal officer by assuming a threatening stance while throwing spicy chips in their faces and by doing so causing reasonable fear of bodily harm.

I took the Expert Witness Report to several lawyers that refused to take my case saying that Multnomah County would almost certainly find an expert to refute Dr. Hayes, I had no medical bills so no real tangible damage, and because of my online activities it would be hard for them to gain sympathy from a jury, so they concluded that if I won that the jury would not award much in damages and therefore it would not be profitable for them to take the case. I think part of the problem was the giant stack of documents I gave them and the fact that they don’t have time to read them while screening the case. I was discouraged, but I also knew that I could pursue the matter myself and go back to them should circumstances warrant reconsideration. Today I am looking at a discovery deadline of July 31st after which I will know if Multnomah County was able to find an expert of their own to refute Dr. Hayes. If they can’t find one (one lawyer I just talked to does not think they will) then I will go back to the lawyers that rejected me and ask if they will reconsider my case with the fact that the defendants have no expert.

RECOMMENDATION

File a pro-se federal lawsuit under 42 U.S.C. 1983 against Pettis County, the PCSO, and Deputy Unknown unless you can find a lawyer to take the case on contingency. If you do find a lawyer and that lawyer wants to pursue the matter in state court I would recommend talking to another lawyer. Lots of personal injury lawyers only practice in state court and chose that venue due to them lacking experience in federal court, not being familiar with federal laws, and usually not being a member of that court (not licensed to practice in federal court). Federal court has some advantages over state court, especially in a small county where cronyism runs rampant. First, you get a federal judge that is not from Sedalia; Second, all but three judges appointed to the United States District Court for the Western District of Missouri were appointed by Republican presidents, so you are far more likely to get a progressive judge eager to find justice for Hannah. According to Wikipedia, Pettis County is part of the Central Division (https://en.wikipedia.org/wiki/United_States_District_Court_for_the_Western_District_of_Missouri). According the District Court website, the Central Division is in Jefferson City and according to Wikipedia the only judge specifically assign to that post is the Honorable Nanette Kay Laughrey ((https://en.wikipedia.org/wiki/Nanette_Kay_Laughrey) who was appointed by Bill Clinton. That does not mean necessarily that your case would be tried by Laughrey because judges from larger divisions are known to hear cases in smaller divisions, but it does mean that should you have a problem with that judge that Judge Laughrey is the senior judge presiding over that judge; Third, all Article II judges are appointed for life so they don’t have to worry about being voted out of office should they made a decision that would be unpopular among what appears to be a conservative law and order majority in that area.

If a lawyer decides to take your case after you file the initial complaint they will file their own amended complaint after that. Plaintiffs have the right to file an amended complain as a matter of course under Federal Rule of Civil Procedure 15 (https://www.law.cornell.edu/rules/frcp/rule_15). If you file your own amended complaint and a lawyer takes your case after that then that lawyer would almost certainly be granted leave by the court to file their own complain on your behalf.

In the meantime keep protesting and raising awareness online. You should Picket the PCSO station at least once a week and there are of course plenty of other locations ripe for picketing about this issue (https://copblaster.com/blast/25799/pettis-county-sheriffs-office-staff-roster-sedalia-state-police). You don’t appear to have the resources to stage nightly protests like people in larger towns do, but you need to keep people talking and make sure that Bond realizes you won’t go away. The first response of police in cases like this is to just ride out the storm and continue on course. You need to make it clear to Bond that even though the storm has died down that it will never end unless justice is served.

More Resources

U.S. District Court for the Western District of Missour https://www.mow.uscourts.gov/

Resources for Pro-Se Litigants: https://www.mow.uscourts.gov/district/prisoner-pro-se-office

Federal Rules of Civil Procedure: https://www.law.cornell.edu/rules/frcp

Published at Tue, 30 Jun 2020 19:22:45 +0000

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