Civil case in police slaying of DuBose goes to the jury

By Marisa Taylor
STAFF WRITER

February 14, 2003

A federal jury began deliberations yesterday in the civil case that will decide whether two San Diego police officers should be held liable for the shooting death of former NFL player Demetrius DuBose.

Attorneys representing DuBose's family say Officers Timothy Keating and Robert Wills used excessive force during the July 24, 1999, confrontation with DuBose, a former linebacker with the Tampa Bay Buccaneers. The family believes the two officers overreacted and unjustly shot DuBose 12 times, including at least five times in the back.

But before deliberations began, U.S. District Judge James Lorenz eliminated several claims originally made by the family's attorneys, including an allegation that Wills pepper-sprayed DuBose without provocation.

The plaintiff's attorneys also agreed not to pursue a separate claim that the officers wrongfully handcuffed DuBose.

The main controversy remaining is whether the officers behaved "reasonably" when they decided to shoot DuBose.

During the five-week trial, few details were left undisputed as conflicting witnesses and dueling experts gave their versions of what led to the confrontation.

The officers' account begins when they were called to a Mission Beach apartment that July night, after a resident came home and found DuBose asleep in a bed in his apartment.

The officers say DuBose became confrontational and fled when they tried to handcuff him outside the apartment.

They testified that when they caught up with him, the former linebacker wrested their nunchakus from them and lunged toward them, prompting them to fire.

According to the officers, DuBose's behavior was so erratic they believed he was high on PCP, a drug known to make users aggressive.

But Brian Watkins, one of the family's lawyers, contended the officers made up the story to cover up their own misconduct.

"It's an embellishment; it's an exaggeration," he told the jury. "PCP would justify this, so that's the story we got."

The DuBose family's attorneys called 10 eyewitnesses to support their version of the shooting.

Rita Yancher, who owned a souvenir store within feet of where the shooting occurred, testified that the officers shot DuBose when his back was turned and that he was defenseless.

However, several other witnesses for the family testified that DuBose was already turning to face the officers when he was shot – a version the officers' attorney says supports their contention that DuBose lunged at them.

Watkins acknowledged that the testimony was at times conflicting, but he said all the witnesses agreed DuBose never charged at the officers. Watkins said ballistic evidence also made that point.

Frank Devaney, the deputy city attorney representing the city and the officers, downplayed the testimony of the family's witnesses, especially Yancher's, as unreliable. Yancher initially told police she saw DuBose walking away when he was shot, but she never specified that DuBose was shot in the back.

Devaney also dismissed testimony by the plaintiffs' ballistics experts as confusing and inconclusive.

Devaney said the officers' account shows they tried every legitimate way to gain control over an uncooperative DuBose. They pepper-sprayed him, wrestled with him, and when those tactics didn't work, they shot him because their lives were threatened, he said.

"They were sucked into what was described by everyone as a violent, scary situation," Devaney said. " 'To protect and serve' doesn't mean you have to sacrifice your life and die."

Devaney told the jurors to resist basing their verdict on any sympathy they might feel for DuBose's mother. Several times, Jacqueline DuBose-Wright had to leave the courtroom, overcome by the descriptions of her only child's death. Often she could be heard weeping in the hallway.

"It's a tragedy for Mrs. DuBose – the poor guy is gone," Devaney said to the jury. "I sympathize for Mrs. DuBose. I sympathize for my clients.

"You have the facts. You have to resolve these discrepancies."

Jurors deliberated for less than an hour before they were sent home yesterday afternoon. They will resume deliberations today.