070: Without Remorse

Stella Case No. 070, Originally Published: 25 February 2004

Police officers investigating a hot burglary in Akron, Ohio, found the suspect hiding in a cabinet. They say Christopher Sample, 27, initially showed his hands to the officers and was surrendering, but then suddenly pulled his hands back and shoved them into his coat.

The closest officer, fearing Sample had a gun in his coat, opened fire, hitting Sample several times in the arms and legs. When they searched him, however, they did not find a gun.

Sample pleaded guilty to burglary and served six months in prison for the break-in.

The officer-involved shooting was investigated by the police department and local prosecutors and was deemed justified. “We are 100 percent sure that the officer acted appropriately,” said Paul Hlynsky, president of the local Fraternal Order of Police union. “He went through an intense investigation and his conduct was flawless.” No charges were filed against the officer.

But that, of course, only covers criminal charges. Now that he is out of prison, Sample has filed a civil lawsuit in the Summit County Common Pleas Court against police officer Jason Bailey, the Akron Police Department, and the City of Akron, claiming that Baily shot him “without warning, explanation or provocation.” The suit claims that his wounds have kept him from getting work since he got out of prison, and he wants to be reimbursed for $45,000 in medical expenses. The suit seeks unspecified further damages.

Perhaps a better explanation for why Sample can’t get work is that potential employers who hear his background consider him dangerous. And rightly so. When confronted by armed police officers while committing crimes, felons should realize the jig is up and do exactly what they’re told, such as “FREEZE!” Making threatening moves against a man pointing a gun at you isn’t “unprovoked,” it’s begging for a sucking chest wound.

Felons lose many of their civil rights when they commit their crimes. Yet criminals, either freshly out of prison or even still incarcerated, retain the right to sue the police — or even their victims — greatly increasing the burden they place on society and increasing the toll on their victims. Felons simply should not have the right to sue their victims or the police officers who capture them unless they can first prove that a crime has been committed against them, such as the use of unreasonable force. When, for instance, a police officer is completely exonerated for shooting them, that should be the end of the story unless a higher police authority (such as the FBI, in this case) finds criminal conduct.

Criminals made the choice to be where they don’t belong, and do things they knew they shouldn’t be doing. Any injuries sustained in the pursuit of criminal activities are their own fault, and there should be no recourse for them in the civil courts. By definition, they have chosen not to abide by the rules of society; why should they be allowed to turn around and choose to use those very same rules against their victims just because it suddenly suits them?

Meanwhile, it’s not particularly surprising that Sample is in trouble again: after filing his suit he was arrested on charges of felony vandalism and misdemeanor resisting arrest. Clearly, even being shot when resisting arrest wasn’t a good enough lesson to keep him from doing it again.

Sources

• “Burglar Suing Officer Who Shot Him,” Akron Beacon Journal, Jan. 16, 2004.

Case Status

This one’s a little complex — and frustrating.

As a civil rights case, it was heard in federal court. Bailey moved to toss the suit based on “qualified immunity,” which provides “that governmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Once the defendant raises the defense of qualified immunity, the plaintiff bears the burden of establishing that constitutional violation.

Bailey was searching the building after spotting Sample, who ran and hid. He and his partner found Sample hiding in a cabinet, and ordered him out multiple times. Sample turned and pulled his arm in; that’s when Bailey fired — seven times — while backing away. Apparently all seven shots hit Sample.

Bailey testified he continued to fire (i.e., more than one or two shots) because he thought Sample was shooting back. It was probably echoes; Sample didn’t have a gun. Why did he make such a threatening movement? Sample continually replied, “I just wanted a cigarette.”

Other officers testified that Sample continued to refuse commands even while both wounded and still at gunpoint. In court, Sample swore he had just “two and a half beers” that evening, but his blood alcohol content was a whopping .185 percent. In the hospital interviewed by a detective, Sample admitted reaching for cigarettes, but told the officer, “I’m going to sue, man. He shot me and I was just grabbing for my cigarettes. The guy didn’t tell me not to stop or nothing.”

The court ruled against dismissal, as it is required to give the “most favorable light” to the plaintiff in such a motion. Because Sample had testified that he was reaching to grab something to pull himself out of the cabinet, “Sample posed no threat to Bailey at the time Bailey shot. Therefore, the use of deadly force was not objectively reasonable.” Precedent is “that summary judgment is inappropriate where there are contentious factual disputes over the reasonableness of the use of deadly force.”

The only way to cure this defect is to prove there were reasonable grounds to fire, which means trial. Or! Appeal.

Bailey did appeal. Since this was a federal case, it went to the U.S. Court of Appeals for the Sixth Circuit …which upheld the district court’s denial of Bailey’s motion for summary judgment, which looks reasonable to me: there is a genuine dispute over a Constitutional violation. OK, then, back to trial.

And that’s where the trail grinds to a halt. Did it go to trial? Unclear. Any decision? Unclear. Frustrating? For sure.

Update Sources:

• “Sample v. Bailey, 337 F. Supp. 2d 1012 (2004)”, United States District Court for the Northern District of Ohio, 24 August 2004.
• “Christopher Sample, Plaintiff-appellee, v. Jason Bailey, Defendant-appellant,” Sixth Circuit Court of Appeals (409 F.3d 689), 9 May 2005.

My 2021 Thoughts on the Case

Without knowing what happened in the trial, assuming there was one, I can’t update my thoughts on the matter. Though I’ll say Sample got quite a second chance at life, and I hope he turned things around despite what’s in the last paragraph of the case.

Letters

Readers had a mixed reaction to the restaurant suing over its review:

Jean-Frederic in Quebec, Canada: “It seems to me that this some-kind-of-a-restaurant is maybe trying to get some-kind-of-a-free-marketing-ride. Even if lawyers’ services can sometime be very expensive, they may not cover the publicity costs that a couple of news services can provide. I don’t know the precise facts of the case, but I would expect that such use of the Courts are not new to America. My question is if that is the case, should it be on Stella?”

Absolutely! I don’t subscribe to the theory that “any publicity is good publicity.” Shame works, and even if this restaurant isn’t shamed, maybe the next restaurant that gets a bad review might think twice before suing.

Then there’s this sort of reaction:

Philip in New York: “OH MY GOD! That’s all I can say. What has our society come to? And, who the hell is the lawyer that accepted this case as ‘winnable’? If someone’s OPINION on Lucky Chen’s is that their food sucks, so be it. I probably wouldn’t have gone there (note the word ‘probably’). Now that they’ve sued because they feel that their food doesn’t suck, I ‘know’ I would not frequent the place (note the word ‘know’). Lawsuits take a long time and gain a wider base then a food review. I think they’re screwing themselves in the end. Maybe others will learn by this as people are sick and tired of all the lawsuits.”

Let’s hope!

Derek in New Mexico: “There is a space for opinion. Readers are aware that a restaurant review does not have the scientific rigor of an analytic chemist doing medical tests. Yet they expect, and believe that they receive, some level of consistency. A reviewer has visited more restaurants and done more research than the average reader wants to do before heading out to dinner. When a reader finds that s/he agrees with a reviewer on a few good and bad restaurants, then s/he will likely follow the opinion of the reviewer in limiting the search for new places. Therefore, I think it is potentially reasonable to hold a review source to consistent application of its standards and traditions. In this specific case, who knows. If standard procedures were followed, and the rating stands as the considered comparison that it purports to be, then the restaurant has no case. If, on the other hand, the reviewer’s standard procedures and comparison standards were not followed, then I think the restaurant has grounds for complaint. Not necessarily for a lawsuit, [though]….”

I understand your point, Derek, but with Zagat it’s a compilation of hundreds of patron reports. Unless the company purposefully (read: with malice) manipulated the results, which the restaurant did not allege, I don’t see a case.

- - -

Email Subscriptions

No new cases are being published, so please don’t try to submit cases.

My Flagship Email Publication This is True continues to come out with new stories every week. It’s “Thought-Provoking Entertainment” like Stella, but uses weird-but-true news items as its vehicle for social commentary. It is the oldest entertainment newsletter online — weekly since 1994. Click here for a This is True subscribe form.