Tuesday , August 26, 2014 - 1:58 PM1 comment
BRIGHAM CITY — The federal lawsuit over a Box Elder County sheriff’s deputy’s fatal shooting of a pursuit suspect nearly two years ago may be drawing to a close.
Final documents have been filed in arguments over the county’s motion for summary judgment, which seeks dismissal of the suit filed by the mother of the late Troy Clark Burkinshaw, 52, of Sandy. A decision is pending from U.S. District Judge Clark Waddoups in Salt Lake.
In a residential Corinne neighborhood, Deputy Austin Bowcutt fired three shots through the windshield of Burkinshaw’s Volkswagen Jetta as his car was coming at the deputy.
The car was traveling at less than 3 mph, claims the lawsuit multiple times. The suit estimates Burkinshaw’s speed at between 2 and 2.8 mph when he was shot and killed.
The fatal Oct. 26, 2012, incident began as a 55 mph chase from just east of Corinne. Bowcutt had spotted Burkinshaw urinating by the side of the road, subsequently pulling him over a few minutes later.
In talking with Burkinshaw, Bowcutt noticed an odor of alcohol and what appeared to be a bottle in a brown bag on the Jetta’s back seat. Bowcutt took the suspect’s personal information and returned to his patrol truck to make records checks.
At that point, Burkinshaw drove away, headed toward Corinne at speeds up to 55 mph.
Agreement on facts end there, for the most part, which Carolyn Clark’s law firm, Parker & Mcconkie, argues is the reason the case should go to trial.
“Disputed issues of material fact exist with regard to whether Mr. Burkinshaw created a threat of imminent harm to the public or to Deputy Bowcutt,” reads the suit. arguing such questions of fact are for a jury to decide.
While admittedly trying to elude arrest, Burkinshaw was stopping for stop signs, the suit claims, and signaling for turns in Corinne at speeds no more than 20 to 25 miles an hour during the pursuit there.
The county’s motion says Bowcutt heard the engine rev and feared for his life as the Jetta crept toward him, Clark’s response says he made that up, lying to justify the shooting.
Upon inventory of the Jetta, police learned that the brown paper bag Deputy Bowcutt saw contained an open half-gallon bottle of vodka, reads the motion for summary judgment filed by the county’s law firm, Peter Stirba and Associates, of Salt Lake City. Burkinshaw’s autopsy revealed that his blood alcohol content was 0.22, nearly three times the legal limit for driving of 0.08.
As Bowcutt backpedaled in front of the moving Jetta, the front bumper made contact with his lower legs, the motion says.
“Deputy Bowcutt became increasingly fearful for his life. He felt he was moving backward as quickly as he could and did not have time to try to step to the side or make any other movements in the confined space.
“Deputy Bowcutt observed that the car was accelerating and that he was about to be run over.”
But the lawsuit claims expert testing of the engine revealed no acceleration and that Bowcutt was actually able to get out of the way of the still-moving car after he fired the fatal shots, the car rolling into some trees.
The suit argues case law that says police use of lethal force in a pursuit is only justified when the risk posed by the suspect is “imminent,” not merely substantial.
“Mr. Burkinshaw did not create an imminent danger to the public while fleeing in his vehicle.”
But the county’s motion reads: “Deputy Bowcutt believed that Burkinshaw was intoxicated and that his driving and decision making ability was impaired, thereby putting the public at serious risk of physical harm if he escaped ... Deputy Bowcutt did not know whether there were weapons inside the Jetta or if Burkinshaw was otherwise armed.
“Deputy Bowcutt did not know whether the Jetta’s driver would exit his vehicle and continue to escape on foot or enter a nearby home, take hostages or otherwise endanger nearby residents.”
Contact reporter Tim Gurrister at 801-625-4238 or firstname.lastname@example.org. Follow him on Twitter at @tgurrister
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