By GUY LORANGER, Staff Writer
A U.S. Army soldier who was seriously wounded during a training exercise seven years ago in Moore County has settled a civil rights lawsuit against both the deputy who shot him and the sheriff's department.
The soldier, Stephen Phelps, filed the lawsuit in 2004, alleging that Deputy Randall Butler used excessive force in violation of his Fourth Amendment rights and committed battery when he shot Phelps and a fellow soldier, Tallas Tomeny, during an investigative stop on Feb. 23, 2002.
After hearing two starkly different accounts of how the shooting went down, a U.S. District Court jury rendered a verdict in favor of the soldier on Oct. 27.
On Nov. 17, Phelps agreed to settle his claims against the deputy, the Moore County Sheriff's Department and the sheriff's surety company for $1.23 million.
U.S. District Judge William L. Osteen Jr. dismissed the case before the entry of judgment.
Durham attorney Carlos E. Mahoney, who represented the soldier along with Stewart W. Fisher, said the settlement was "fair and reasonable" in light of the verdict.
Mahoney said his client also wanted closure to an event that he felt had been inaccurately portrayed in the media for several years and which suggested that the deputy had shot the soldiers in self-defense.
"One of the big motivating factors for him in pursuing the case was to get the real story out there," Mahoney said.
The case is Phelps v. Carter, et al. (No. 1:04-CV-00151).
Tomeny was killed in the episode. His estate settled its claims before the October trial.
In a related case, the deputy, Butler, has sued the federal government, alleging the U.S. Army negligently failed to inform local law enforcement about the training exercise.
On Nov. 20, U.S. Magistrate Judge P. Trevor Sharp ordered the parties to file reports on how to proceed in that case in the wake of the Phelps jury verdict.
James R. Morgan Jr. of Winston-Salem, the defendants' lead attorney in Phelps, said he could not comment on the case.
One minute, two versions
The soldiers belonged to the U.S. Army's Special Forces Command and were training to become Green Berets.
They were participating in Operation Robin Sage, an annual role-playing training exercise in which they assumed the roles of insurgents who had infiltrated a fictional country, Pineland.
While conducting reconnaissance in a truck driven by a civilian volunteer, Charles Leiber, they were stopped by the deputy. They pulled into a church parking lot, with the deputy parking his patrol car 5 feet behind the rear of the truck.
The deputy then placed the civilian volunteer in the patrol car.
During the 11-day trial in October, the jury heard two different versions of what happened next, Fisher said.
According to the plaintiff's evidence, the deputy overreacted. That evidence, consisting primarily of eyewitness testimony and expert opinion, contended that:
The deputy did not give a reason for the stop. So, the soldiers and civilian volunteer believed the stop was a part of the training exercise and stayed in their roles.
When Tomeny refused to open a black bag that, unbeknownst to the deputy, contained a broken-down M4 rifle, the deputy became angry. He pulled the bag away, tossed it toward the front driver's side of the patrol car, drew his gun and pointed it at Tomeny.
After re-holstering the gun, the deputy sprayed Tomeny in the face with pepper spray.
Phelps then jumped out of the truck and began running away. The deputy drew his gun again and shot Tomeny. He then turned and shot Phelps, who had fallen to the ground, facing the deputy, after he heard the initial shots.
The defendants' evidence, in contrast, portrayed the deputy as acting reasonably in the face of a threatening encounter. The deputy testified that:
The men in the truck were acting suspiciously in an area where there had been burglaries.
During the stop, the deputy unzipped the bag, saw two guns and threw it toward the patrol car. He then felt Tomeny's hands going for his gun, which caused him to draw it and point it at Tomeny before he re-holstered it.
When Tomeny made a move for him, again, the deputy removed his pepper spray, took aim at Tomeny and missed.
According to the deputy, Tomeny then yelled "You're dead" and "Kill him now."
Phelps jumped from the truck, grabbed the bag, assembled the gun and rose along the side of the patrol car with the stock of the gun facing up.
When Phelps refused to stop, the deputy said he shot him twice and then shot Tomeny, who appeared to be reaching for a gun behind his back.
"So, [the deputy] said it happened one way, and our client and the only other eyewitness said that's absolutely not what happened," Fisher said. "So, there was no way the jury could really reconcile the two stories."
Fisher said the testimony from the civilian volunteer, Leiber, was particularly compelling and likely had a strong impact on the jury.
"He literally had a front-row seat, watching what happened right in front of him, and it was extremely clear that this was something that was seared in his memory and something he would never get over," Fisher said. "It was so clear that this testimony wasn't staged or rehearsed."
Mahoney said he also believed that physical evidence supported the plaintiff's version of the facts.
There was undisputed evidence that the M4 rifle was broken down and inside the bag after the shooting, which indicated the deputy did not see guns before he began shooting.
The plaintiff also put on forensic bullet- trajectory evidence that confirmed that Phelps had been in a prone position 20 feet from the front driver's side of the patrol car and 10 feet away from the rear of the truck at the time he was shot.
"It further reinforced the strength of our evidence and discounted the deputy's testimony," Mahoney said.
The aftermath
Tomeny died from a single gunshot to his left shoulder and chest, while Phelps was hit in his right arm and chest. One bullet cut through his diaphragm, liver, colon and small bowel before lodging in a muscle surrounding his left hip.
After emergency surgery and 12 days in the hospital, Phelps was discharged on March 12, 2002, just in time to graduate with the rest of the Special Forces unit.
Despite internal and external scarring, breathing difficulties, occasional spasms in his right finger and increased risk of bowel obstruction, Phelps went on to serve two tours of duty in Iraq and Afghanistan.
After he filed his 42 U.S.C. Sect. 1983 and state-law tort claims, Phelps had to survive a motion for summary judgment.
The defense claimed the deputy used force that was reasonable because he faced a serious threat to his safety or the safety of others, and even if it was unreasonable, he was entitled to immunity as a matter of law.
A U.S. District Court judge denied the motion in 2006, which the Fourth Circuit U.S. Court of Appeals affirmed a year later. The U.S. Supreme Court then denied the defendant's petition for writ of certiorari.
"We always felt the case involved very significant factual disputes that had to be resolved by a jury, and the results on summary judgment reinforced our beliefs," Mahoney said.
The parties also engaged in two days of pre-trial hearings, arguing over several motions in limine.
The gist of the defendants' evidence was that the training exercise itself had created a dangerous situation. The evidence which the plaintiff managed to get excluded included the Army's subsequent remedial measures.
"With this case, probably the biggest challenge was the possibility that the jury would blame the Army for what happened instead of holding the officer liable. The officer's testimony was that he did not know these people were soldiers, and if he had known, this wouldn't have happened," Fisher said.
At the close of trial, the jury found in the plaintiff's favor on two special interrogatories, that the deputy did not: (1) see the gun in the black bag or (2) hear Tomeny yell "Kill him now" or "You're dead" before shooting.
The jury awarded Phelps $650,000 in compensatory damages and $200,000 in punitive damages. The soldier also was entitled to recover attorney fees, litigation expenses and costs.
In Mahoney's view, the verdict reflected a central theme of the plaintiff's case: That the deputy's lack of knowledge that it was a military training exercise should not have been a critical factor.
"This type of conduct shouldn't be permitted anywhere in North Carolina, whether it's involving soldiers or undocumented immigrants or just ordinary citizens," he said.
"It's about how North Carolinians expect law enforcement to treat citizens at any investigative traffic stop, and that's what the jury said when it awarded punitive damages."
Type of action: Civil rights -- Excessive force -- Police shooting
Injuries alleged: Gunshot wounds to right arm and right chest; contusion and hemorrhage in the upper and middle lobes of the right lung; lacerations to diaphragm, liver, colon and small bowel; exploratory laparotomy; repair of diaphragm, liver and colon; repair and resection of small bowel; spasm of the axial and brachial arteries; internal scarring in right lung; external scarring from gunshot wounds and surgical incision; breathing difficulties with exertion; occasional spasm in right finger; and a heightened risk of a bowel obstruction.
Case name: Phelps v. Carter, et al.
Case number: 1:04-CV-00151
Court: U.S. District Court for the Middle District of North Carolina
Judge: Hon. William L. Osteen Jr.
Verdict or settlement: Settlement (post-verdict)
Date: Nov. 17, 2009
Amount: $1.23 million
Special damages: $103,189 (medical expenses)
Demand: $1.2 million (initial settlement demand); $1,479,269 (post-verdict demand)
Offer: None (pre-verdict)
Insurer: North Carolina Association of County Commissioners Risk Management Agency; Fidelity and Deposit Company of Maryland
Experts: R. Clayton Steiner, M.D. (trauma surgeon); Dave Cloutier (police procedures and crime scene investigation)
Plaintiff's attorneys: Stewart W. Fisher and Carlos E. Mahoney of Glenn, Mills, Fisher & Mahoney (Durham)
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December 7, 2009, 2009