Police killing closer to jury
Troy loses latest round in effort to dismiss case brought by family of man shot in 2016
A federal appeals court has rejected an appeal by the city of Troy and the widow of a patrol sergeant who fatally shot an unarmed DWI suspect in 2016. The decision upholds a federal magistrate’s prior ruling that found there were “material questions of fact” about the shooting that should be resolved by a jury trial.
The ruling by the U.S. Second Circuit Court of Appeals also declined to grant qualified immunity to the deceased sergeant, Randall French, because eyewitness testimony called into question the officer’s claim that the shooting was justified.
The appeal centered on a June 2019 decision by U.S. Magistrate Daniel J. Stewart rejecting the city’s motion to dismiss the case. He had
noted in his ruling that conflicting witness accounts raised too many questions about the city’s claim that French was constitutionally authorized to use deadly physical force. The city had argued that French, “in a moment of existential
terror, found himself pinned between his squad car and the still accelerating vehicle of Edson Thevenin.”
The appellate court, in a decision handed down Monday, noted that Phillip E. Gross III, one of two civilian witnesses to the shooting, contradicted French’s statement that his legs were pinned between Thevenin’s revving Honda and his patrol car when he opened fire. Gross, a tow truck driver, told police the vehicles were about 4 feet apart when French, without saying anything, opened fire on Thevenin, whose vehicle then rolled slowly into the officer’s legs.
“Under this version of the facts, as to which a rational jury could find that Thevenin posed no significant threat of death or serious physical injury to French or others at the time of the shooting, we
conclude that it would have been clear to a reasonable officer in French’s position that ... his conduct was unlawful,” the appellate panel said.
The ruling will put the civil rights lawsuit filed on behalf of Thevenin’s widow, Cinthia, and his two sons back on course for trial.
“We are pleased that the Court of Appeals agreed with Judge Stewart that the circumstances surrounding the unfortunate death of Edson deserve to be heard by a jury,” said Michael Rose, one of the attorneys for Cinthia Thevenin. “We look forward to a trial so that the unwarranted actions of Sgt. French that led to Edson’s death can be brought to light.”
John D. Aspland Jr., the attorney for the city in the case, said they are “disappointed that the Second Circuit did not reverse the decision from the District Court regarding the application of qualified immunity on summary judgment.”
“We stand ready to defend Randy French at trial when that time comes,” Aspland said.
The city had argued that French’s split-second
decision to use deadly force was based on the officer’s perception that he was in imminent danger and justified to open fire.
But Stewart, like the appellate court, noted that witnesses — including other police officers — gave varying accounts of what unfolded, and the nearby tow truck driver had sharply contradicted French’s claim of being trapped against his patrol car by Thevenin’s revving Honda Civic when he opened fire.
An internal affairs investigation that had been concealed by Troy city officials also concluded that French was not in imminent danger when he fired the first two rounds through Thevenin’s windshield.
The report, which recommended disciplinary action against French, was drafted in 2018 by former Capt. Joseph L. Centanni
at the end of a ninemonth internal investigation. An expert also concluded that French may have lied about Thevenin crashing his car into a concrete barrier.
That expert’s determination was that French had sideswiped Thevenin’s Honda sedan and forced it into the barrier — in violation of departmental policies.
The report was issued by Brian F. Chase, a former New Hampshire State Police sergeant who is considered an international expert in vehicle forensics.
Chase had been hired by the Troy Police Department as part of the internal investigation.
Centanni had determined that French gave “empirically untruthful statements” about what happened that night, including his alleged decision to force Thevenin’s vehicle off the road.
Troy city police officials declined to take action against French — who died last year of symptoms related to COVID -19 — based on Centanni’s report. That report sustained a total of four allegations against the sergeant, including his having engaged in “several reckless acts which dramatically increased the likelihood of a violent confrontation with Thevenin upon Sgt. French’s exit from his patrol vehicle.”
Top officials in the administration of Mayor Patrick Madden had secretly hired a law enforcement consultant, Michael D. Ranalli, who had been recommended by Troy police officials. Ranalli composed a 19-page legal memorandum that they claim rebuts Centanni’s findings.
The city has declined to disclose Ranalli’s report.
But Stewart ordered the release of Centanni’s report after a whistleblower alerted Cinthia Thevenin’s attorneys about its existence. The findings of that report were first reported by the Times Union.
A yearlong investigation by the state attorney general’s office that was completed in January 2018 also had raised questions about French’s version of what unfolded, and sharply criticized the investigations conducted by the Troy Police Department and former Rensselaer County District Attorney Joel E. Abelove.
Abelove was charged with perjury and official misconduct as a result of his handling of Thevenin’s killing.
Last year, a Columbia County judge acquitted Abelove of all charges he had faced, including felony perjury.