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Wrongful Death - Excessive Force

On behalf of an Alabama police officer, Terry Sides won a wrongful death case in federal court. Late one night, witnesses observed the plaintiff’s decedent with a “BB gun” or similar weapon firing shots into vehicles in the parking lot of an apartment complex where the decedent lived. When the police arrived, they repeatedly knocked on the front door of the decedent’s apartment and announced their presence, but the decedent (even though he was inside the apartment) ignored the officers. A short while later, as the officers were about to leave the scene after their unsuccessful efforts to talk to him, the decedent fled out the rear door of his apartment, ran to his car, armed himself with a box cutter knife, and began advancing on the officers in a threatening manner and with his knife pointed at them. The officers made repeated and loud verbal commands to the decedent that he stop and put down his knife, but he ignored the officers’ commands and kept coming at them, even as the officers walked backward to keep a safe distance between them and the threat posed by the decedent. With knife still in hand and pointed at the subject officer, the decedent continued moving toward the officer and closing the gap between them faster than the officer could walk backward. The decedent quickly got within a few feet of the officer and continued coming at him. In fear for his safety, the officer shot and killed the decedent.

The lawsuit was filed on the two-year anniversary date of the incident. The plaintiff stated a variety of claims against the officer for shooting the decedent, who allegedly suffered from a mental disorder which was allegedly known by the police. Plaintiff ultimately dismissed all but the wrongful death claim, after which the Firm filed for the officer a motion for summary judgment.

The argument for the officer was that even though the wrongful death claim was governed by a two-year statute of limitations and the plaintiff filed her lawsuit on the last day of the limitations period, the plaintiff nevertheless failed to timely commence the action for purposes of the statute of limitations because, after filing the lawsuit, she waited 77 days before paying the required filing fee and providing the clerk of the court with a summons to be issued and served on the officer. Alabama law provides that these failures evidence a lack of the required bona fide intent at the time of filing a lawsuit to immediately commence an action, so it was argued the statute of limitations in this case was not tolled when the plaintiff filed the lawsuit, even though she did so on the last day of the limitations period.

After the parties extensively briefed the issue, the plaintiff conceded she had not timely commenced her wrongful death action against the officer for purposes of the statute of limitations. Accordingly, summary judgment was entered in favor of the officer and the lawsuit against him was dismissed.

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