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Jury rules in favor of police

Decision exonerates city, officers in 2006 shooting at airport

Posted: March 18, 2013 - 2:41pm

A federal civil jury last Thursday exonerated three Homer Police officers and the city that employs them.

In a unanimous verdict delivered about noon March 7, the 8-member jury found that Cherry Dietzmann and her children, the plaintiffs in a $45 million suit against the city and officers, did not prove that Homer Police officers Will Hutt, Stacy Luck and Dave Shealy shot Jason Anderson Jr., then 2, in a shootout with Homer Police and U.S. Marshals seven years ago at the Homer Airport.

Frank Koziol Jr., the city's lawyer, said the jurors accepted the defense claim that the boy's father, Jason Anderson Sr., then 31, shot his son in the head after Marshals and police boxed in Anderson in a rental Jeep at the airport parking lot. Anderson's children, Jason Jr. and daughter Darla, were in car seats in the Jeep.

The boy suffered a severe brain injury and requires 24-hour nursing care. Darla escaped with no physical injuries.

Marion Kelly and Phillip Weidner, the Anchorage attorneys representing Dietzmann and her children, did not return phone calls or emails requesting comments and if they planned to appeal the verdict.

The one-month trial in U.S. District Court in Anchorage also brought to light a defense theory: that Luck, who shot Anderson Sr. in the left shoulder, might have saved the girl's life after the father shot his son. Koziol said Anderson Sr. was reaching around toward Darla, sitting in a rear-facing car seat behind the driver, when Luck's bullet hit him.

"That probably saved her life," Koziol said.

The city praised the jury verdict.

"The city considers this to be complete vindication for the Homer Police Department and the officers involved in the case," said Homer City Manager Walt Wrede in a press release last Thursday.

"We feel really good for the police officers," Wrede said in an interview. "But this was a tragedy. What happened to the kid was a tragedy. We feel sorry for him and his family."

In her initial complaint filed in June 2010, a federal tort and civil rights claim, Dietzmann also sued the U.S. Marshals involved, Kevin Guinn and John Olson Jr., Homer Police Chief Mark Robl, Homer Police Sgt. Lary Kuhns, Hutt, David Shealy and Luck. She also sued Alaska State Troopers involved in the hunt for Anderson Sr. and the investigation. In July 2011, the Marshals settled with Dietzmann for $3.5 million, with 95 percent of the proceeds from the settlement going to the boy.

Troopers, Robl and Kuhns were dismissed earlier from the suit. Kuhns was involved in the capture of Anderson Sr. but did not fire his weapon.

At the Homer Airport in the early evening of March 1, 2006, Marshals attempted to arrest Anderson, of Duluth, Minn., a felon wanted on drug and other charges. Anderson had come to Alaska with Dietzmann and their children, but she left earlier and had been cooperating with authorities. The Marshals' initial plan had been to lure Anderson into the airport to get keys for another rental car on the pretense that the Jeep he drove had a cracked windshield. Other Marshals were waiting inside the airport to apprehend him. About 100 members of a youth and adult choir group were at the airport waiting to board outbound planes. Homer Police backed up the Marshals.

The plan went awry when Anderson told a rental car agent he didn't want to come into the airport because his kids were in the Jeep, and wanted someone to come out with keys. Marshals and police then tried to catch Anderson by boxing in his Jeep with their cars. Anderson pulled his .45 caliber Ruger handgun when Marshal Olson and three police approached.

Koziol told the jury that if Anderson Sr. had acted rationally, he would have surrendered when surrounded and outnumbered. Instead, Anderson Sr. chose to shoot his son, and did so within a few seconds of when police and the Marshal came up to the Jeep, Koziol said. Anderson's first priority was to shoot his kids and then shoot the cops, Koziol said.

Anderson fired four shots, he said: the first at the cops, the second at his son, the third at the roof after being hit by gunfire and the fourth in his head, killing himself.

Dietzmann's lawyers argued that Jason Jr. had been shot from behind, and that a larger wound in his face was an exit wound. The lawyers relied on the testimony of Dr. Paul Sayer and Dr. Paul Raymond, two Homer physicians working at the South Peninsula Hospital emergency room that night.

Koziol had two forensic experts testify at the trial. Those experts backed up the conclusion of the late Dr. Franc Fallico, the state medical examiner at the time, and Dr. Stephen Erickson, that the boy had been shot in the face. At trial, Koziol argued that the wound to the boy's face had three signs characteristic of a close-contact gunshot wound: a stellate, or star-shaped tear in the skin; seared flesh caused by hot gases coming out of the gun barrel, and a muzzle imprint in the skin.

The forensic experts said that usually only one or two of those characteristics can be seen in close-contact gunshot wound, Koziol said.

"This was a no-brainer there. They had no doubt this was a contact wound," Koziol said of his experts.

Dietzmann also alleged the Homer Police should have known the children were in the car. Koziol said that from a distance and with binoculars Olson had been watching Anderson Sr. in the Jeep and saw a child seat. Olson told Guinn but didn't convey that information to police. Koziol said that the rental car agent taking on the phone with Anderson Sr. also didn't tell Marshals that Anderson Sr. said the children were in the car. All he told Marshals was that Anderson Sr. was agitated and nervous.

Homer Police thought Anderson Sr. was alone in the Jeep, Koziol said. Marshals should have told police of the car seat.

"They should have been told that information to make an intelligent decision or not," Koziol said. "How that would have come out, that's not an easy call."

If the officers had thought children were in the car, they would have gone up the chain of command to Kuhns and Robl to discuss what to do.

"We just don't know what we would have done," Koziol said.

Dietzmann's lawyers argued that the plan to approach the Jeep was unreasonable and too dangerous. They suggested another plan, to send a cop or Marshal disguised as a rental car agent to the Jeep.

Wrede said that over the past seven years the city had declined to comment on the case to maintain the integrity of the legal process and protect the rights of all involved.

"The city believed all along that the officers involved acted in a professional, reasonable and responsible manner given the circumstances surrounding this incident," Wrede said. "The city is gratified that the jury, after hearing all of the evidence, agreed with the city."

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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