James Weyant, 46, acknowledges in a complaint that he took off his ill-fitting boxer shorts while walking through an alley from a friend's house about 4 a.m. April 8.
But Weyant contends a large hoodie and T-shirt kept his privates covered and argued he did nothing to provoke being shot by Officer Mark Sprouse. Sprouse has reported Weyant was acting erratically and didn't respond to a command to drop his "weapon"—which turned out to be a pair of black "Guitar Hero" boxers.
"He wasn't menacing anybody, or drugged up or drunk, or threatening anybody," Weyant's attorney, Douglas Stoehr, told The Associated Press. "Jim did not even know it was a police cruiser until it screeched to a halt next to him." ) .
Weyant has recovered from being wounded in the right armpit and shoulder, but still has "shooting" arm pain and cannot properly grip some items with that hand, Stoehr said. The lawsuit seeks unspecified damages.
Blair County District Attorney Richard Consiglio has ruled that the shooting was justified, and Police Chief Janice Freehling, who did not immediately return a call seeking comment, also told the newspaper that an internal investigation found Sprouse didn't violate any policies or procedures.
Stoehr, the attorney, said he's not sure why the officer considered his 5-foot-5, 135-pound client's behavior erratic, let alone threatening.
"I wouldn't do this, probably you wouldn't do it, but some guys wear these long shorts out in public," Stoehr said. "It's perfectly acceptable in today's society."
Stoehr contends Weyant, who works as a laborer, couldn't sleep and decided to walk to an ex-girlfriend's house. When Weyant arrived, a dog began barking so, rather than disturb anyone, Weyant started walking home.
But, the lawsuit said, the boxers "were aged and losing their elasticity, thereby resulting in a poor fit." Weyant tired of holding up the shorts while carrying a cigarette, so he took them off and carried them in his left hand, the lawsuit said.
Weyant had to be up for work two to three hours later and was returning home when the officer pulled up, Stoehr said. Weyant, who was interviewed by the state police and internal investigators who reviewed the shooting, claims Sprouse exited his car with his gun drawn and started shooting without shouting any kind of command, Stoehr said.
"Here's the crux of the matter: The officer sees something in his hand and thinks it's a weapon," Stoehr said. "But if it's dark and you can't see anything, how do you know that?"