Originally created 06/02/01

Judge lets shooting death suit stand



A federal judge has ruled that enough evidence exists to allow a jury to determine whether two Richmond County deputies used excessive force when they shot Alfaigo Davis to death in February 1998.

Chief U.S. District Judge Dudley H. Bowen, in an order signed May 22, denied a defense request to throw out the lawsuit's allegations against Deputies Nicholas Capobianco and Gary Clark Jr., although he did grant the motion to dismiss the case against former Sheriff Charles Webster.

Unless a settlement is reached, the case will proceed to trial. No trial date has been set, however.

Patricia Pace filed the federal lawsuit in February 2000. She is the mother of the 29-year-old man shot to death in a cul de sac at Jonathan Court in the Apple Valley community Feb. 21, 1998.

While Judge Bowen noted in his written order that his ruling should not be construed as finding that Deputies Clark and Capobianco acted unreasonably, he also said there is a genuine issue of material fact for a jury to determine.

"The videotape in this case, however, is worth a thousand words," Judge Bowen wrote. "The videotape tends to show that when Deputy Clark fired the first two shots, Davis' car had come to a complete stop. A reasonable jury could conclude that when the officers opened fire, Davis posed no threat of serious harm."

Mr. Davis had fled from a traffic stop and raced his vehicle to the Apple Valley subdivision, where he was shot 10 times by the officers, who fired .40-caliber service weapons.

In June 1998, a Richmond County grand jury decided not to indict either deputy on criminal charges. A subsequent federal inquiry also failed to result in charges.

Both officers told investigating Georgia Bureau of Investigation agents that each fired at Mr. Davis when they considered the movement of Mr. Davis' vehicle a danger to the other. Deputy Clark fired first, fearing Mr. Davis' vehicle was backing toward Deputy Capobianco, who might then have been trapped between Mr. Davis' vehicle and a cruiser. Deputy Capobianco said he began firing as Mr. Davis' vehicle changed directions and moved forward, toward Deputy Clark. The defense maintains the officers were justified in using deadly force to save their lives.

Ms. Pace's lawsuit contends the officers used excessive and unreasonable deadly force to apprehend Mr. Davis, whose suspected crimes were misdemeanor offenses. Several nonlaw enforcement witnesses, who said in sworn statements that they were present when Mr. Davis was shot, have said no officer was in danger and that Mr. Davis was trying to surrender.

James Ellison, who is representing the deputies and former sheriff on behalf of the local government, said this week that he is not sure what the defense's next move will be. He is investigating whether he can appeal Judge Bowen's decision, which denied summary judgment to the two officers.

Ms. Pace's attorney, Charles Mathis of Atlanta, did not return a telephone message seeking comment.