DA: York City cop justified in shooting at oncoming car


A York City police officer was justified when he shot a passenger riding in a car that nearly ran him over, according to York County District Attorney Tom Kearney.

Officer Ben Smith was in "imminent danger" when he fired at the oncoming car, Kearney ruled.

Front-seat passenger Erika Eberhardinger suffered two gunshot wounds during the 2 a.m. Dec. 19 incident in the 300 block of West Gay Avenue, according to Kearney's written report, made public on Tuesday.

One bullet struck her in the right forearm, and a second bullet struck her in the jaw after first going through her left hand, officials said. At the time, she was covering her face with her hands, according to Kearney.

Smith was placed on administrative leave until preliminary investigation confirmed he was not at fault, York City Police Chief Wes Kahley said.

"It's better for (officers), psychologically, to get them back to work as soon as possible," he said, and described Smith as "a solid performer."

"These guys are out there doing their jobs every day and get put in situations where they have to make split-second decisions," Kahley said. "They have to decide if they're going to die or not at that moment."

Guilty plea: The report states Kearney waited to release his findings until the criminal case was resolved against Matthew Foster, the driver of the fleeing car.

On Aug. 28, Foster pleaded no contest to aggravated assault and pleaded guilty to fleeing or attempting to elude police, DUI, three counts of reckless endangerment and driving with a suspended license. He was sentenced to three to six years in prison, court records state.

His attorney, chief public defender Bruce Blocher, has said Foster pleaded no contest to the aggravated assault because he can't remember much after crashing into a utility pole during the chase and hitting his head.

"After he hit his head in the car, things got a little foggy," Blocher said.

The chase: York City Police tried to pull over a silver Mitsubishi Lancer for traffic violation near the intersection of State and Walnut streets, but Foster fled, according to Trooper Rob Hicks, a state police spokesman. State police conducted an independent investigation into the incident at Kearney's request.

The Lancer fled onto Newberry Street, then westbound onto West Gay Avenue, going the wrong way on the one-way alley, Hicks said.

At the same time, an eastbound York City cruiser on Gay blocked the Lancer's path of travel, effectively trapping it, Hicks said.

Foster backed up at a high rate of speed, crashing the Lancer into a utility pole, at which point Smith approached the Lancer on foot, Hicks said.

Drove at cop: At that point, the Lancer "abruptly" changed direction and drove at a high rate of speed directly at Smith, according to Hicks.

Smith dove out of the way as he fired his service pistol at Foster and narrowly avoided being struck by the car, Hicks said.

Eberhardinger, 22, was struck by two bullets but avoided life-threatening injuries, according to court documents.

Back-seat passenger Mason Millen of York escaped injury, police said.

Foster kept driving westbound on Gay Avenue but had no escape route and crashed into a metal railing along the north side of the street, Hicks said. He then surrendered to officers.

The findings: Kearney's report states that Eberhardinger is the mother of Foster's child, that she owned the Lancer and that she let Foster drive it.

At the time, Foster was drunk and his license was suspended, officials said.

"Foster (drove) directly at Officer Smith causing him to move laterally to avoid being struck by the Mitsubishi," Kearney wrote.

His report states Smith radioed into 911, "He's gonna hit me! What the f—!"

Millen, who was in the back seat of the Lancer, told police he, Foster and Eberhardinger went to a local bar, and that Foster drank "a lot," according to the report.

Millen said that during the chase he repeatedly yelled for Foster to stop, then put on his seat belt and advised Eberhardinger to do the same when he realized Foster wasn't stopping, the report states. He said all three of them in the car knew an officer was trying to stop them.

Officers on scene overheard Millen yelling at Foster, "You got her shot, you f—ing idiot," the report states.

Suspended license: As he was driven to the York City police station, an intoxicated Foster was crying and screaming that he was sorry, Kearney's report states.

He blurted out, "I have a suspended license and I couldn't go back to jail for 90 days" and "I knew I was drunk. I just wanted to have a good time," according to the report.

Smith told investigators he was aiming at the driver of the Lancer when he fired his .40-caliber Glock service pistol.

"(It) would have been clear to any reasonable person that Mr. Foster's conduct presented an imminent danger of death or serious bodily injury at the time Officer Smith used deadly force in the discharge of his weapon," Kearney wrote in his report. "Mr. Foster's entry of a plea to the charge of aggravated assault upon Officer Smith confirms that conclusion. Accordingly, the conduct was justified and no criminal action is warranted."

— Reach Liz Evans Scolforo at levans@yorkdispatch.com.