On February 18, 2007, Mr. Robert Harper was shot and killed by Officer Matthew Overton, a ten year veteran of the Newport News Police Department. As the Commonwealth’s Attorney for the City of Newport News, the question that I must answer is whether, based on the circumstances as they appeared to him, Officer Overton had a reasonable belief that his life and/or the lives of others were in imminent danger. In other words, the law requires that we walk in Officer Overton’s shoes, that we see what he saw, and that we feel what he felt in order to judge the reasonableness of his actions.
The Newport News Police Department has thoroughly investigated the case, has interviewed all known and available police and civilian witnesses, and has presented its report to me. My Chief Deputy (Angela O’Connor), my most experienced deputy (Ruth Giffin), and I have personally interviewed police and civilian witnesses and reviewed all witness statements that were given to the criminal investigators. We have visited the scene of the shooting. We have reviewed the Medical Examiner’s report, met with the Medical Examiner, and reviewed the ballistics report prepared by the Department of Forensic Science in Norfolk (hereinafter referred to as the State Laboratory). I have also met with the ballistics expert who prepared the report and have examined the clothing Mr. Harper was wearing. I am now in a position to report on the investigation’s findings as well as my legal opinion. I respectfully submit this report to the citizens of the City of Newport News.
FINDINGS OF THE INVESTIGATION
On February 18, 2007, Ms. Diane Lee Caldwell was a bail enforcement officer. On that day, Diane Caldwell was in possession of a bail revocation capias which she was to serve on Mr. Robert Harper. This capias had been issued by the Clerk’s Office of the General District Court (Criminal Division). At approximately 7:15 p.m. that evening, Ms. Caldwell spoke with Melissa Johnson, Mr. Harper’s former girlfriend. Ms. Johnson informed Ms. Caldwell that Mr. Harper was currently at a residence located at 1211- 25th Street, Newport News, Virginia. Ms. Johnson stated she had recently been at that residence, recovering her vehicle.
Ms. Johnson also told Ms. Caldwell that Mr. Harper’s recent demeanor was unusual and it appeared to her that “he had a death wish.” Ms. Johnson later told a Police investigator that, during her last conversation with Mr. Harper on February 6, 2007, Mr. Harper appeared very sad and depressed, and that she had never seen him that way before. Ms. Johnson said that Mr. Harper told her that he had hurt a lot of people and that he was not the man he was supposed to be. Ms. Johnson stated that Mr. Harper had recently ended a relationship with another woman, he was in financial trouble, and he lost his job. She stated that it was around this time that Mr. Harper began to incur criminal charges in Hampton and in Newport News. She agreed to bail Mr. Harper out of jail on December 25, 2006. Ultimately, Ms. Johnson decided to remove herself from Mr. Harper’s bond.
After speaking with Ms. Johnson on February 18, 2007, Ms. Caldwell proceeded to the residence at 1211- 25th Street in order to apprehend Mr. Harper on the bail revocation capias. Her husband (Dan Caldwell), two neighbors, and another individual accompanied Ms. Caldwell to assist her.
When Ms. Caldwell and her companions arrived at 1211-25th Street, they encountered two individuals who confirmed that Mr. Harper was inside. These individuals allowed Ms. Caldwell and her companions to enter the residence. Ms. Caldwell was directed to an apartment located on the second story at the top of the stairs. Melvin Holliday, the renter of the second floor apartment, came downstairs and led Ms. Caldwell and her companions to his apartment. There were two females and one male (Mr. Harper) inside the apartment. It was one of these females that actually conveyed to Ms. Caldwell or to the female that was with her that Mr. Harper had a box cutter. Ms. Caldwell identified herself to Mr. Harper and explained to him that he was under arrest on a bail revocation. Mr. Harper became visibly agitated. Mr. Holliday attempted to calm Mr. Harper down and convince him to comply, but Mr. Harper would not listen. Mr. Harper appeared to Mr. Holliday as having “this look in his eye, and he kept kind of squinting his eye and, and…moving you know a little sporadically with his hand in his pocket.” Mr. Harper remained focused solely on Ms. Caldwell during the entire conversation. Mr. Holliday later described Mr. Harper as being more “erratic” that night than he had ever seen him before. It appeared to him that Mr. Harper was under the influence of drugs. Mr. Harper appeared to Mr. Schwedic (one of Ms. Caldwell’s companions) as having a “wild look” to him.
As the situation began to escalate, Ms. Caldwell directed the other individuals out of the room. Ms. Caldwell talked with Mr. Harper for approximately one hour, attempting to convince him to surrender himself peacefully. Mr. Harper refused to leave. Ms. Caldwell did not see a weapon on Mr. Harper. However, she said that every time she tried to approach Mr. Harper, he would move his right foot forward and lean forward towards her in a very defensive manner. She also said that “he had his hands in his pants holding something”. Ms. Caldwell began to hear people gathering in front of the house. When she went downstairs, there were, in fact, people starting to gather outside. Believing that the situation was getting out of hand, Ms. Caldwell requested police assistance by calling 9-1-1 at approximately 8:38 p.m. Ms. Caldwell then advised Mr. Harper that the police were on their way. According to Ms. Caldwell, Mr. Harper stated that, “I will not leave this room with you alive or with them.”
At approximately 8:40 p.m., Newport News Police Officer Luley was the first officer to respond to 1211-25th Street. When the police arrived, Ms. Caldwell advised them that she had a warrant for Mr. Harper’s arrest, that he seemed very defensive, that she was advised by persons at the house that Mr. Harper had a box-cutter. She also warned the police officers to “just be careful.” Officer Luley proceeded up the stairs to make contact with Mr. Harper. Mr. Harper told Officer Luley to stop, to not come any further, to back out and to leave. Via police radio, Officer Luley requested additional units to respond to the scene of what he described as a “very non-compliant, disorderly subject that was armed with a box-cutter at 1211- 25th Street.” Ms. Caldwell and the other civilians in the residence were directed by police to go outside.
Police Officer Wendell White was the first officer to respond to the call for back-up. Police Officer Overton responded next, along with Officer Morgan. When officers Overton and Morgan walked to 1211-25th Street, they encountered two individuals on the front porch who directed them to where other Police Officers were inside the house. Officer Overton went inside and saw Officer Luley and Officer White upstairs. Officer Luley was standing outside the front door of the apartment with his gun drawn at his side. Mr. Harper was standing in the bedroom, approximately 10 feet from Officer Luley, with his right hand concealed and only his left side exposed in the direction of the doorway. Officer Luley advised Officer Overton that “he’s in here in this room, armed with a box-cutter.” Officer White was standing, with his gun drawn at his side, in the hallway. Being a member of the Newport News Police Tactical Operations Unit (i.e. SWAT Team) and fearing for the safety of the officers on the scene, Officer Overton moved Officer Luley out of the doorway and took a kneeling position at the left corner of the front door. At some point, Officer Santel, Officer Davis and Police Sergeant Nowak also arrived on scene.
The distance from where Officer Overton took his position and where Mr. Harper was first standing was approximately 10 feet. Officer Overton drew his gun and pointed it at Mr. Harper. Officer Morgan stood over top of Officer Overton and aimed his weapon at Mr. Harper, as well. According to the officers, Mr. Harper was wearing dark-colored, loose-fitting clothing, including a hooded sweatshirt.
According to officers and civilians, Officer Overton then spent the next thirty minutes trying to talk Mr. Harper into coming along with the police. Officer Overton gave numerous and repeated commands to Mr. Harper to drop the box-cutter and raise his hands slowly so the situation could be resolved peacefully. Officer Overton told Mr. Harper that, if Mr. Harper made any drastic movements toward the Officers, “you’re going to force me to shoot you.” Mr. Harper responded by telling Officer Overton not to “force the situation”, to just leave, and he warned that “somebody is going to get hurt” and “something’s going to happen.” Officer Overton then told Mr. Harper, “I’ve been informed by the officers that you are armed with a box-cutter. You need to listen to me, okay. Do not come at me, do not move towards me, do not do anything unless I tell you to because if you come at me, I will shoot you.” During the entire time of this exchange, Mr. Harper was clenching his left fist and was concealing his right hand in his pocket. Mr. Harper was breathing very deeply and had a very intense look on his face. Officer Overton requested and received a ballistic shield to secure cover.
Officer White, being unfamiliar with a bond revocation capias, checked with the Police Department to see if there was a record of this document on file with the Department. There was not. (According to the Newport News Criminal Court Clerk, this type of capias is not sent to the Police Department. The original is given to the bondsman, and the Clerk’s Office keeps a copy). Officer White then advised the other officers that Mr. Harper was not wanted and that the police needed to leave. As Officer Overton began to plan a tactical retreat, Sergeant Nowak, after inspecting the capias, told him that Harper was actually under arrest and directed Officer Overton to hold and maintain his position on the doorway. Mr. Harper maintained his posture and began to stare very intently at Officer Overton. Mr. Harper then began to shift his weight from his left foot to his right foot, rocking back and forth in the direction of Officer Overton. Mr. Harper’s breathing was labored and very heavy. According to the officers on the scene, Officer Overton attempted to de-escalate the situation, repeatedly asking him to comply with the order to drop the box-cutter and raise his hands. Officer Overton began to ask Mr. Harper about his interests and about sports, in an effort to calm him down. Mr. Harper remained upset and non-compliant.
Sergeant Nowak then advised Officer Overton that Mr. Harper was to be placed under arrest. At this point, Mr. Harper pointed his left hand at Officer Overton and yelled, “Do not force the situation; you don’t want this.” His right hand was still concealed.
Sergeant Nowak directed Officer Santel to retrieve the “less lethal” shotgun ( a shotgun that fired beanbags) from his police vehicle and bring it to him. Officer Santel did as instructed. Sergeant Nowak instructed Officer Morgan to move to the left, and Sergeant Nowak then took the position standing over Officer Overton, who remained kneeling. Sergeant Nowak explained to Mr. Harper that the charge he was currently facing was relatively minor, but Mr. Harper would not listen. Sergeant Nowak told Mr. Harper that he had a less lethal shotgun and explained to Mr. Harper what the less lethal measure entailed. Mr. Harper became increasingly agitated. Mr. Harper maintained his non-compliant stance, while concealing his right side. Officer Overton tried to reassure Mr. Harper: “We don’t want to hurt you.” Mr. Harper then yelled repeatedly, “Shoot me, shoot me.” Mr. Harper’s face began to change color and his eyes widened. Officer White thought to himself, “We are gonna have to shoot this guy.” Mr. Harper made it clear that he would not speak with Sergeant Nowak and that he would only deal with Officer Overton. Sergeant Nowak believed that his presence was causing Mr. Harper to become increasingly more agitated. Consequently, he decided to withdraw from the doorway. Before he left, Sergeant Nowak directed Officer White to assume the position over top of Officer Overton. None of the other officers on the scene were trained in employing the less lethal shotgun.
Sergeant Nowak went downstairs to advise the Police chain of command about the situation. He requested a hostage negotiator to respond, another officer who was trained in handling the less lethal weapon, and to confirm the identity of the person who was the subject of the bond revocation capias. Officer Santel proceeded down the stairs to the fourth step from the landing. Officer Davis also went downstairs. Officer White informed Mr. Harper that the officers could not leave and that Mr. Harper was under arrest. Officer Overton attempted to instruct Mr. Harper in a controlled breathing technique in an effort to calm down Mr. Harper. This tactic worked momentarily, but then Mr. Harper once again became agitated.
Mr. Harper asked the Officers, “What makes you think I have a box-cutter?” Mr. Harper’s facial expressions hardened, his breathing intensified, and he was shifting his feet back and forth. According to Officer Overton, Mr. Harper’s right elbow was “cocked up just a little bit”, as if he was holding something. Officer Overton responded, “Are you telling me you have a gun?” Mr. Harper replied, “What do you think I have?” Mr. Harper also said, “You’ll find out, you’re forcing the issue.” This exchange was repeated several times. Mr. Harper then expressly told the officers two or three times that he had a weapon, was still concealing his right hand, and moved closer to the officers. At this point, Officer Overton and Officer White both believed that Mr. Harper had a gun. According to Officer White, Mr. Harper got “really, really close” to the officers, inching closer and closer. Officer Overton gave several commands to Mr. Harper to “get back” and to “stop coming closer”. Mr. Harper did not comply.
Officer Overton felt at that time what he later described as “great fear” for both his life and the lives of his fellow officers. Officer Overton expressed his fear to Officer White and asked Officer White if he shared this perception. Officer White advised that he did. Officer White began to ask Mr. Harper about his family, and Mr. Harper responded, “I don’t care, I don’t care, I don’t care ‘bout them.” Mr. Harper inched closer to the officers. Officer White, believing that he might have to shoot Mr. Harper, began to pick out a spot on his body where he would shoot him. The officers on the scene heard Officer Overton tell Mr. Harper, “Do not come at me, do not move, I don’t want to shoot you. Listen to me.” At the same time Officer Overton gave that command, Mr. Harper began to remove his right hand as if he was coming out to draw a weapon. Mr. Harper then lunged forward. Officer Overton responded to this action by firing his weapon at approximately 9:12 p.m.
Officer Overton could not retreat backwards to create a gap between himself and Mr. Harper, given that the stairs were directly behind him. Officer Overton’s tactical training dictated that, in order to ensure his safety and that of the others, he move forward to close the gap. Officer Overton shifted to the right and fired multiple times as he entered the living room. This was done because, according to Officer Overton, Mr. Harper was still not complying with his commands, was still motioning with his right concealed hand, and was still moving. Mr. Harper fell back into the small bedroom and onto his left side. Mr. Harper’s right side was exposed, and Mr. Harper was still making repeated jerking motions with his right hand, which was still concealed in his right front pocket. Officer Overton interpreted Harper’s actions as attempts to draw a gun. Officers heard Officer Overton make repeated commands to stop moving, but Mr. Harper did not comply. Officer Overton continued to give commands to stop moving. From Officer White’s position in the doorway, he could not see Mr. Harper once Mr. Harper fell into the bedroom because his view was obstructed by Officer Overton.
When Officer Overton was out of ammunition, he then shouted, “Out, out, out,” as he was trained to do. He immediately reloaded his gun and shouted, “In, in, in.” Mr. Harper continued to make movements that Officer Overton saw as reaching for a gun. Officer Overton verbalized his observations to other officers that Harper was still moving. It appeared to Officer Overton that his shots were having little, if any, effect on Mr. Harper’s ability to continue to move his right arm and his concealed right hand. Mr. Harper had not cried out or given any type of verbal indication that he had been shot or injured. According to Officer Overton, there was no readily apparent evidence of blood on Mr. Harper’s outer layer of clothing. (specifically, the black jacket or black jeans). Officer Overton believed that Mr. Harper was still trying to go for the gun and could be wearing body armor. Officer Overton’s firearms training dictated that if a suspect was wearing body armor, you fire at a vital, exposed area. At this point, Officer Overton fired two more shots. One of these struck Mr. Harper in the head, and he stopped moving. Officer Overton stopped firing immediately.
A total of eleven shots were fired. Witness accounts put the time between the first shot and the last shot at a minimum of 5 seconds to a maximum of 10 to 15 seconds.
When Officers arrived at the doorway to the bedroom, Mr. Harper’s right hand was still concealed. Officer White entered the bedroom and grabbed a hold of Mr. Harper’s legs and pulled him out of the bedroom so Mr. Harper could be handcuffed. Officer Overton holstered his gun. The other officers present holstered their firearms as well. Officer Overton searched Mr. Harper and found no weapon. Officer Overton, certified as an Advanced Life Support Medic with the Commonwealth of Virginia and a Tactical EMT through the United States Government, attempted to administer first aid. Officer Overton rolled Mr. Harper onto his back. Officer Overton ensured Mr. Harper’s airway was open, checked for breathing and a pulse, and attempted to control Mr. Harper’s bleeding with his bare hands. Medics were requested by Police at approximately 9:15 p.m. and subsequently arrived on the scene.
Medics informed Officer Overton that Mr. Harper was deceased. Captain Perry from the Newport News Fire Department pronounced Mr. Harper dead at 9:22 p.m.
Later, when interviewed by Police, Mr. Holliday said that when he heard the shots he began crying because he knew that Mr. Harper “did something to, to make…the officers have to shoot him.”
A crack cocaine smoking device was recovered from the sofa of Mr. Holliday’s apartment.
According to personnel with the Police Department Crime Scene Unit, 11 cartridge cases from the bullets fired by Officer Overton were recovered. The majority of the cases were recovered along the path that Officer Overton stated he traveled. Only two cartridge cases were recovered from the bedroom. Five bullets were recovered from the scene. Four of the five bullets recovered were located in the bedroom, with 2 traveling through a wall. The fifth bullet was located underneath Mr. Harper after he was pulled out of the bedroom. There were 2 bullets under the bed, 1 in a computer, and 1 on the bedroom floor, just left of the bedroom door.
Newport News Police Detectives interviewed the other available residents at 1211-25th Street. Ms. Belinda Jones indicated that there were five apartments in the building on three floors. Ms. Jones and Mr. Issac Williams occupied the apartment on the third floor. There were two apartments on the second floor: one apartment (i.e. the location of the shooting incident) was leased by Mr. Melvin Holliday, and the other was vacant. Two females occupied the two apartments on the first floor, but Ms. Jones did not know their names. These ladies were ultimately located and interviewed. Each resident advised that she was not home at the time of the shooting. Ms. Jones stated that she did not hear anything the evening of February 18, 2007, other than several shots coming from the floor below her. Ms. Jones was in her apartment and did not see any of the events. Mr. Williams told Police he was outside, down the street, when the shooting occurred and did not hear anything.
Dr. Elizabeth Kinnison, the Medical Examiner in this case, performed the autopsy on Mr. Harper on February 19, 2007, and determined the cause of death to be gunshot wounds to the torso and the head. There were eight bullet entrances. The order in which these injuries were inflicted could not be determined by the Medical Examiner. Dr. Kinnison recovered five intact bullets from the body and two fragments from a bullet. These fragments were recovered from Mr. Harper’s right hand. The bullet wounds were described by Dr. Kinnison as follows: A bullet entered the left side of the upper chest, traveled through and exited the right side of the upper chest, and re-entered into the right upper arm. This bullet was recovered from the right arm. The path of this bullet indicated that Mr. Harper’s right arm was likely positioned away from his body in order for this shot to enter his right arm. This shot was fatal. A bullet entered the left lower back and exited the left side. A bullet entered the right mid-back and was recovered near the left armpit. This shot was fatal. A bullet entered the right lower back and was recovered from the first lumbar vertebra. A bullet entered the right buttocks and was recovered in the left upper groin, close to the skin. A bullet entered the right lower back and was recovered below the left rib cage. This shot was fatal. A bullet entered the back of the right hand and exited the palm. A bullet entered the right side of the head and exited the left side of the head. This shot was fatal.
Dr. Kinnison stated that 4 of the gunshot wounds could have caused quick or immediate incapacitation and would have been ultimately fatal. The only gunshot wound that would have definitely caused immediate unconsciousness or death was the gunshot wound to the head. A person sustaining all of these wounds (except the shot to the head) might have been able to move and walk for a short time and for a short distance.
The autopsy showed no evidence of close range fire on the skin.
When Mr. Harper’s body was brought to the Medical Examiner’s Office, he was wearing five layers of clothing on his upper body: a thermal shirt, a blue sleeveless t-shirt, a black long sleeve t-shirt, a sweatshirt and a black jacket. Mr. Harper was wearing three layers of clothing on his lower body: boxer shorts, thermal pants and black jeans.
A toxicology analysis by the State Laboratory revealed that there was cocaine found in a sample of Mr. Harper’s blood.
A ballistics report prepared by the State Laboratory showed that all 11 of the cartridge cases, as well as all 10 bullets recovered, were fired from Officer Overton’s gun. No determination could be made with reference to the bullet fragments from Mr. Harper’s right hand (This would have been the 11th bullet).
LEGAL ANALYSIS
Under Virginia law, killing in self-defense may be either justifiable or excusable homicide. Virginia courts have held that justifiable homicide in self-defense occurs when a person, without any fault in provoking or bringing about the confrontation, kills another person under reasonable apprehension of death or great bodily harm to himself or others. If a killing is proved to be justifiable, the accused must be acquitted.
In order for a killing in self-defense to be justifiable homicide, certain facts must be established, namely that the accused (1) was without fault in provoking the confrontation; and (2) killed under fear of imminent danger; (3) of death or great bodily harm; (4) at the hands of the deceased (5) which the accused believed he faced; (6) and that the accused had a reasonable ground to believe he faced, as viewed from the standpoint of the accused; (7) at the time he acted; (8) and there was an overt act by the victim; (9) indicating the victim’s imminent intention; (10) to kill or seriously harm the accused; (11) and the force employed by the accused was proportional to the threat posed.
Officer Overton was not at fault in bringing about the confrontation.
In order for an accused to rely upon the affirmative defense of self-defense, he must be without fault in bringing about or provoking the confrontation that led to the killing.
In this case, Officer Overton was a Newport News Police Officer on duty at the time of the shooting. Officer Overton responded to assist a fellow officer at the 1211-25th Street address. Officer Overton arrived on scene, was allowed access inside the residence, and proceeded upstairs upon information from an officer already on the scene. The bond revocation capias was determined by a supervisor, Sergeant Nowak, to be valid and enforceable by Newport News Police Officers. Robert Harper was lawfully under arrest.
Officer Overton acted under fear of imminent danger.
In the context of a self-defense plea, Virginia courts have adopted the Black’s Law Dictionary definition of “imminent danger”, i.e., an immediate, real threat to one's safety. Whether a threat of harm is imminent is ordinarily a question of fact which should be decided based upon all the circumstances of the situation.
The totality of circumstances in this case shows that Officer Overton acted under fear of imminent danger. Ms. Caldwell informed the police officers that she was advised Mr. Harper had a box-cutter. After her initial and lengthy contact with Mr. Harper that night, Ms. Caldwell warned responding officers to be careful. Mr. Harper maintained a defensive posture during the entire incident, and was at first just 10 feet from the officers. Mr. Harper defied numerous commands by different police officers to slowly remove his right hand from his pocket or shirt. Mr. Harper kept his right hand concealed during the entire incident and often repeated to officers that he had a weapon. When asked if he had a gun, Mr. Harper did not deny such a possibility. Instead, Mr. Harper told police officers not to force the situation, and he inched closer and closer to the officers. Mr. Harper began to rock back and forth on his feet. Mr. Harper’s breathing was heavy and intense. Just before the shooting, Mr. Harper was “really, really close” to the officers, made a motion with his right arm as if he was drawing a weapon both officers believed was a gun, and lunged at the officers. Even after Officer Overton began firing at Mr. Harper, Mr. Harper still did not comply with the Officer’s repeated commands to stop moving, and he continued to make motions with his right arm.
Given the entire set of facts, including the information the officers had at the time, the short distance between Mr. Harper and the officers, Mr. Harper’s closing that short distance, Mr. Harper’s heightened level of agitation, Mr. Harper’s lack of compliance with the officers’ commands, Mr. Harper’s continued insistence that he had a weapon, and Mr. Harper’s sudden movement with his right arm, Officer Overton perceived an immediate, real threat to his safety and acted under fear of that imminent danger when he shot Mr. Harper.
Officer Overton’s fear was that of death or great bodily harm at the hands of Mr. Harper.
Black’s Law Dictionary defines “great bodily harm” as “serious physical impairment of the human body, especially bodily injury that creates a substantial risk of death or that causes serious, permanent disfigurement or protracted loss or impairment of the function of any body part or organ.”
Officer Overton and Officer White had been advised that Mr. Harper had a box-cutter in his possession at the time of the confrontation. Mr. Harper was initially 10 feet away from the officers and then inched closer to the point that he was “really, really close”. Then Mr. Harper lunged at the officers. A box cutter thrust from such a short distance can cause great bodily harm. When used in a deliberate way for a deadly purpose, knives have been held by Virginia courts to be deadly weapons, regardless of the purpose of the items when first acquired.
Furthermore, Mr. Harper implied to both officers that he had a gun by what he said, by what he did not deny, and by his physical movements. He told the officers that they would find out what kind of weapon he had if they continued to force the situation. Both Officer Overton and Officer White came to believe that Mr. Harper was in fact armed with a gun. Once Mr. Harper lunged from a short distance and made motions as if drawing a firearm, Officer Overton’s fear was that of great bodily harm to himself and his fellow officers at the hands of Mr. Harper.
Officer Overton actually believed he faced the danger and had reasonable grounds to believe he faced that danger, as viewed from Officer Overton’s standpoint at the time he acted.
In order for a killing to be justified in self-defense, the accused must have thought or believed that he was in imminent danger of great bodily harm, and that thought or belief must have been reasonable. When assessing reasonableness, Virginia courts do not apply an after-the-fact, hindsight assessment, but instead look at the circumstances as they appeared to the accused at the time he acted. It is not essential to the right of self-defense that the thought or belief of imminent danger be proven later to have been accurate.
Officer Overton actually believed that he faced imminent danger of great bodily harm. He verbalized that fear to his fellow police officers moments before he shot Mr. Harper. Furthermore, that fear was reasonable, given Mr. Harper’s short distance from the officers, Mr. Harper’s closing that short distance after repeated commands to stop, Mr. Harper’s heightened level of agitation, Mr. Harper’s consistent defiance of the officers’ commands to show his hands, and Mr. Harper’s sudden movement with his right arm as he lunged. Other officers on the scene were also in fear for their lives.
Officer Overton even sought to confirm that his fear was reasonable by asking Officer White if Officer White was experiencing the same fear. Officer White verbalized his own fear to Officer Overton just before Mr. Harper’s sudden movements. Officer White, himself an experienced police officer in the same physical proximity to Mr. Harper, was planning a target on Mr. Harper’s body to fire at should Mr. Harper attempt to draw a weapon. It was not until after Officer Overton confirmed that his own, actual fear was reasonable and appropriate that he fired upon Mr. Harper.
After the initial shots, Mr. Harper still did not comply with Officer Overton’s clear and repeated commands to stop moving. Rather, the evidence shows that Mr. Harper continued to move his right arm, with his right hand remaining concealed in his pocket. Officer Overton, based upon his observations at the time and his extensive training as a member of the Police Tactical Operations Unit, interpreted Mr. Harper’s continued movements after sustaining multiple gunshot wounds as indicating that Mr. Harper was wearing body armor. Given that Mr. Harper was wearing loose-fitting clothing of multiple layers and a dark-colored jacket, the presence of such armor was a reasonable possibility from Officer Overton’s perspective. Officer Overton re-loaded, restated his commands to Mr. Harper to stop moving with which Mr. Harper did not comply, and fired twice more at Mr. Harper. One of those shots struck him in the head.
The fact that Mr. Harper was later found not to be in possession of a deadly weapon at the time he was shot and ultimately killed, and the fact that Mr. Harper was not actually wearing body armor, do not negate Officer Overton’s right to self-defense. It is the circumstances as they appeared to Officer Overton at the time of the shooting that are relevant in determining if the shooting is justifiable. In other words, as long as Officer Overton had reasonable grounds for believing that he or others were in danger of death or serious bodily harm, the killing is justifiable.
Overt acts by Mr. Harper indicated Mr. Harper’s imminent intention to kill or seriously harm Officer Overton.
Virginia case law has held that fear alone does not justify a killing in self-defense; there must also be an overt act showing the victim's imminent intention to kill or seriously harm the accused.
In this case, the evidence shows that Mr. Harper intended not to be taken into police custody alive. He made that statement to Ms. Caldwell. His recent actions and demeanor indicated to his former girlfriend that he harbored a death wish. He also seemed to be high on drugs and had a “wild look” about him. There was, in fact, cocaine in his blood. He repeatedly told Sergeant Nowak to shoot him. Mr. Harper made verbal threats to the Officers to “not force the situation”. Mr. Harper deliberately refused to deny that he was concealing a gun and affirmatively asserted that he was carrying a weapon.
Tragically, these words and conduct were then followed by physical, threatening acts. Mr. Harper deliberately moved closer and closer to the officers, despite their repeated demands to stop. Mr. Harper moved his right arm that had been concealed, making motions as if drawing a weapon. Ultimately, Mr. Harper lunged toward the officers. It was not until after Mr. Harper made such overt, physical, threatening actions that Officer Overton first fired his weapon. Mr. Harper then continued to make movements with his right arm as he was on the ground, movements that Officer Overton reasonably could have interpreted as threats to his life. Officer Overton made repeated commands to Mr. Harper to stop moving. The evidence shows that Mr. Harper’s movements with his hand did not stop until the final shot was fired.
The force employed by Officer Overton was proportional to the threat Mr. Harper posed.
Virginia courts have held that, in order for an accused to rely on self-defense, the amount of force he uses to repel the attack must be proportional to the threat posed.
Mr. Harper explicitly told both Police Officers that he was carrying a weapon. By his posture, his physical motions and his refusal to confirm or deny the fact, he convinced both Police Officers that he was concealing a gun. Mr. Harper, by his actions, also convinced the civilians initially on the scene that he was armed. When Mr. Harper advanced upon the Officers, they both thought he was drawing a gun on them, just feet away. The threat was that of death or great bodily harm by a deadly weapon. The force employed by Officer Overton to repel that threat was the use of a deadly weapon. Therefore, the force used was directly proportional to the threat posed.
There is no evidence that contradicts Officer Overton’s observations that Mr. Harper, even as he laid on the ground after being shot, continued to make motions with his right arm. The apparent lack of blood on Mr. Harper’s outer clothing and the lack of verbal indications from Mr. Harper that he had been injured, led Officer Overton to suspect that he was wearing body armor. Other officers heard Officer Overton’s repeated commands to stop moving. Mr. Harper’s right hand, in which Mr. Harper himself had claimed he held a weapon, was still concealed from view. It was reasonable from Officer Overton’s perspective for him to believe that Mr. Harper continued to pose a threat to his life. Officer Overton in fact held that belief. The shot by Officer Overton at Harper’s head therefore constituted force proportional to the actual, and reasonably, perceived threat.
CONCLUSION
The perceived threat posed in this case was the threat of Mr. Harper pulling a gun and firing it at the officers. As long as he displayed the apparent capability and willingness to carry out this threat, the officer had a right to continue to fire until the threat was neutralized. Therefore, after a thorough and extensive review of all the available evidence and the applicable law, it is my opinion that the tragic death of Robert Harper was a case of justifiable homicide. Consequently, this Office will be taking no further action in this matter.
FINAL COMMENTS
As the Commonwealth’s Attorney for the City of Newport News, and as a long-time resident of our City, I am deeply saddened by the tragic loss of Mr. Robert Harper’s life, by the pain endured by his family and loved ones, and by the pain suffered by Officer Overton and his family. It is a hurt that, with love and prayers, will ease over time, but simply will never disappear. My sincerest sympathy is extended to all who are hurting.
I
am also deeply saddened by the actions of a few who have taken advantage of this
pain in order to create division, anger, and mistrust in our community. This was,
and remains, a time when what is crucial is prayer, forgiveness, unity, understanding,
and faith in each other. Our community needs and deserves justice for all, not
the agendas of a few.
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