Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, March 1, 1994 TAG: 9403010080
SECTION: VIRGINIA PAGE: B-3 EDITION: METRO
SOURCE: MICHAEL STOWE STAFF WRITER
DATELINE: LENGTH: Medium
Lawyers for O.E Shires urged a U.S. District Court judge to dismiss a $5 million lawsuit that accuses the deputy of using excessive force in the death of Terry Ricardo Smith.
Smith, a 29-year-old Staunton resident, was killed the afternoon of Oct. 24, 1991, as he fled from Shires. The deputy had stopped Smith's car on a rural road because the car matched the description of one involved in the armed robbery of a convenience store in Buchanan.
Attorney Fain Rutherford told Judge Jackson Kiser that Smith would not have been shot if he had obeyed Shires' order to put his hands in the air.
Instead, Smith grabbed an object from his car - believed by Shires to be a gun - and fled on foot. Shires told investigators that he fired after Smith turned toward him with the object in his hand.
"It was Smith's threatening and evasive action that resulted in the shooting," Rutherford said. "[Shires] really had no choice but to fire at that point."
Rutherford said the deputy was worried not just about himself, but about a group of children standing behind him.
It was later discovered that Smith was clutching his sunglasses and keys - not a weapon - when he was killed.
The lawsuit, which also names former Sheriff Jerry Caldwell as a defendant, calls the shooting a "summary execution."
Attorney Melvin Hill, representing Smith's estate, argued that a jury should decide whether Shires used excessive force.
Kiser is expected to issue a written opinion within a few weeks.
The suit contains the first formal accusations against the policies of the Botetourt County Sheriff's Office.
A county grand jury twice has declined to indict Shires on manslaughter charges. An investigation by the U.S. Justice Department is pending.
by CNB