By Naomi Klouda
Attorneys are in an U.S. District Court in Anchorage this week arguing Homer police were not responsible for harm when an infant was shot in an airport arrest gone-wrong nearly seven years ago.
The case involves the shooting of infant “J.A.,” who was caught in the crossfire as police sought to arrest his father, Jason Anderson, at the Homer airport in 2006. At issue is whether the officers share blame in shooting the 2-year old boy, at the time. The suspect was shot and killed, also by his own bullet, law enforcement officers have said.
Some parts of the case are already decided. U.S. Federal Court issued a $3.5 million settlement to the boy and his mother in July 2011. U.S. District Judge Robert Bryan, in deciding the case on other merits, denied the claims of immunity by the City of Homer, Sgts. David Shealy and William Hutt, and Stacy Luck. They are appealing that decision to the 9th Circuit Court of Appeals.
The case has traveled a long and twisty road. Represented by Anchorage attorney Phillip Weidner, the boy’s mother points to evidence it was actually Homer police who shot J.A. Attorneys for federal marshals and Homer police said it was actually the boy’s dad who fired the bullet that has left J.A. deeply disabled. Now he is 9 years old.
Jason Anderson, Jr., two-years-old at the time of the shooting, survived but sustained injuries that require 24-hour care. Today, just after his 9th birthday, the boy lives in a medical foster home in Duluth. His aunt, Colleen Murrey, said he remains in a paralyzed state of 24-hour needed care.
The case outlined how U.S. marshals and Homer police officers were pursuing an arrest of Jason Karlo Jacob Anderson, a fugitive wanted on drug charges, on the evening of March 1, 2006. Anderson, also known as Brandon Deitzman, 31, of Duluth, Minn., was wanted for drug conspiracy charges out of Duluth. He was identified as one of the top most wanted fugitives in Alaska by federal officials.
In testimony gathered at the time, Anderson’s girlfriend, Cherry Dietzmann, had fled from him days before the shooting. She had described a long history of violence and intimidation at her boyfriend’s hands. With cooperation from U.S. marshals, she was attempting to win her children’s safety at the time of her escape.
U.S. District Judge Robert Bryan issued a 49-page reiteration of the case and conclusions granting or dismissing a variety of claims by the plaintiffs and defendants in November 2010 that allowed the federal lawsuit to move forward.
He stated that “there is evidence from which a jury could conclude that the Homer officers acted with reckless indifference to the children’s interest.”
The judge added that any punitive claims against the city should be dismissed, however. He also found that any claims against Chief Mark Robl and Sgt. Lary Kuhns should be dismissed. Kuhns had not fired any shots. Officers William Hutt, Dave Shealy and Stacy Luck had each fired shots into the vehicle.
“The type of force used here was the boxing in of Anderson’s vehicle and approach with weapons drawn, knowing that Anderson had the children and had threatened to kill the children if confronted. In doing so, arguably, the defendants caused the escalation that led to the shooting and provoked the armed response,” Judge Bryan wrote in his judgment.
As Anderson pulled his handgun, authorities mortally wounded him after which he turned the gun on himself, according to the findings. His six-month-old daughter was unharmed, but the two-year-old was severely injured when shot through the head, brain and eye.
The children’s mother, Dietzmann, was not present during the shooting. She had cooperated with officials as they sought to apprehend Anderson. She told the officers she had tried numerous times to leave Anderson, but he had prevented her from doing so. She had become involved with him three years earlier at the age of 16. He had harmed her on several occasions, including burning and beating her, she told the officers. He had several prior convictions for armed kidnapping, assault and domestic violence.
Attorney Weidner argued that the officers knew children were strapped in car seats in the vehicle and, therefore, should have constructed a better plan for apprehending Anderson that did not place the children in danger. Homer Police officers, acting as an assault team with federal agents, sought to seize the vehicle, despite prior warnings by the Alaska State Troopers that any attempt to make the arrest with the children present would be too dangerous. Troopers were involved in the investigation, but weren’t present during the airport arrest attempt.
Who shot the child remained in dispute throughout legal proceedings, Weidner said. Officers contend that Anderson had turned a gun on his child, but the family argued that the child was shot by one of the six or seven shots fired into the vehicle by officers. Forensic experts also concluded Anderson had shot the child but disagreed on the point of the bullet’s entry.
The settlement was for total proceeds of $3,495,000, with the net proceeds allocated among the three plaintiffs, Cherry Dietzmann, the mother of J.A. II, J.A.II and his sister D.A. The bulk, 95 percent of the net proceeds, were allocated to J.A. II, in a trust, to help pay for part of his ongoing care and treatment. The federal settlement decision is final, Weidner said.
“The counsel for the plaintiffs commend the federal government and the U.S. Marshal’s Service for their acceptance of their share of the responsibility for this tragedy and their agreement to an appropriate partial settlement,” Weidner said in a news release.
Another part of the case is on appeal in the 9th Circuit Court of Appeals. The defendant, the City of Homer, the Homer Police Department, David Shealy and William Hutt, and Officer Stacy Luck, deny any responsibility. A U.S. District Court decision denied the claims of immunity by the City of Homer, Sgts. Shealy and Hutt, and Luck. They are appealing that decision to the 9th Circuit Court of Appeals, according to City Manager Walt Wrede.
An Alaska Municipal League Joint Insurance Association attorney, Frank Koziol, is arguing the case on their behalf. No City of Homer money was paid out in the federal settlement. A tort case by the family against the city won’t move forward until an appeal court decision
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