York County, DA removed from lawsuit in fatal Kmart police shooting
The latest pretrial ruling in the federal wrongful-death lawsuit of a man fatally shot outside Kmart by Springettsbury Township Police removed York County and its district attorney as defendants.
Tuesday's order by U.S. District Judge John E. Jones III grants a motion filed by the county to remove York County and District Attorney Tom Kearney from the suit, which was filed by the family of Todd William Shultz.
Jones' order gives civil-rights attorney Devon Jacob 20 days to amend the lawsuit to re-include Kearney and York County, "although (the court) finds it unlikely such an amendment will be successful based on the facts as currently alleged in the complaint," it states.
York County solicitor Mike Flannelly said the ruling means that from a legal standpoint, York County has no responsibility for Shultz's death.
Jacob did not return a phone message seeking comment, but in a news release noted that Pennsylvania law states a district attorney is chief law enforcement officer for the county in which he or she was elected.
"The fact that Kearney never exercised his authority to supervise should not be a defense," Jacob wrote. "However, the Shultz family does not desire to waste any more time litigating an issue that can be remedied at the ballot box. Instead, the Shultz family will focus on prosecuting the claims against the township defendants."
Flannelly said the county took two basic positions in its motion to dismiss the lawsuit.
First, he said, the county maintained no excessive force was used, although Flannelly said the judge indicated it's premature to rule on that. The second position was that local municipal police forces aren't under the control of York County, he said.
"Neither the county nor Tom Kearney trains police officers, disciplines police officers or hires police officers," Flannelly said.
No dismissal: Jones' order denied a defendants' motion — filed on behalf of Springettsbury Township, former township officer Greg Hadfield and current township officer Jamie Miller — to dismiss the lawsuit, including an excessive-force claim.
Jones determined that the plaintiffs have established a claim to argue excessive force against Hadfield and Miller, according to the order, which states:
"We find the allegation plausible that Shultz was not 'advancing' toward Kmart in a threatening manner but was in a state of shock and stumbling sideways toward the Kmart entrance; further, it is inappropriate at this stage to decide this critical disputed factual issue."
Jones also declined to dismiss the lawsuit's claim that police withheld medical care from Shultz after the shooting.
"Defendants argue, and plaintiffs do not appear to contest, that within 10 seconds of the last shot being fired, the officers began screaming for an ambulance. This is a notable factor weighing against an ultimate finding of deliberate indifference," Jones wrote. "However, we find the allegations that no officer checked for a pulse for at least two minutes and that no township police officers, including defendants Hadfield and Miller, provided any emergency care on the scene after Shultz had been shot numerous times to plausibly show either intentional refusal to provide such care or delay for non-medical reasons."
'Prior pattern': Jones denied a defense motion to dismiss former Springettsbury Township Police Chief Tom Hyers as a defendant from the lawsuit after finding he had knowledge that Hadfield "had a prior pattern of aggressive and possibly unlawful behavior that warranted additional training or supervision."
Jones wrote that Hadfield's two previous alleged excessive-force cases, which resulted in out-of-court settlements, "put Hyers on notice that at least Hadfield needed additional training on use of force."
The judge also notes the lawsuit claims Hadfield was never disciplined or retrained.
"We conclude that these allegations of defendant (Hyers') actions can reasonably be construed as a message of approval of defendant Hadfield's conduct," Jones wrote.
The background: Jacob filed an $8M federal civil rights lawsuit Dec. 18 on behalf of Shultz's family.
Shultz, 40, of North York, was killed when he was shot 17 times by Hadfield and Miller shortly before 7 p.m. Dec. 29, 2012, outside the 1094 Haines Road Kmart . He was wielding a butter knife and scissors at the time, despite repeated orders and pleas from police that he drop the weapons.
Officers began firing as Shultz moved toward them, then continued to fire after he had turned away from them, the lawsuit states.
The lawsuit alleges the last 11 bullets went into Shultz's back and side, and one of them fatally perforated his heart.
Confrontation: Police tried to arrest Shultz inside Kmart for shoplifting jewelry, but he resisted arrest inside, then outside, the store, according to Kearney's subsequent report, which cleared the officers of wrongdoing.
Kearney previously told The York Dispatch he's not bothered by the last 11 shots, because there are times when it's justifiable for police to shoot someone in the back.
"People flinch, they turn, cops are in different locations," he has said. "The location of bullet wounds is but one factor in (my) determination ... as to whether officers acted appropriately."
Jacob has called the shooting "shocking and unlawful."
Other lawsuits: Jacob also represented Steven E. Landis and Debra L. Williams, who claimed Springettsbury Township police officers — including Hadfield — used excessive force when arresting them during two separate incidents. Kearney ruled none of the officers involved broke the law during either encounter.
Springettsbury Township settled with Landis and Williams for $250,000 each, which removed the township, Hyers and the officers from the lawsuits. The Landis suit remains active against Kearney and York County, but the Williams suit has been dismissed, Flannelly said.
— Reach Liz Evans Scolforo at email@example.com.