The Journal Gazette
Thursday, June 10, 2021 1:00 am

Timeout sought on wrongful death suit

State police call for appeal before ruling

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – Lawyers for the Indiana State Police argued Wednesday that a judge should call a timeout in a lawsuit involving a white police officer killing an unarmed black man in Fort Wayne – sending it for appeal before any final rulings are made.

The case was filed in 2017 after Indiana State Police Trooper Seth Mann shot and killed a fleeing Lucius Washington in Fort Wayne in 2012. The key issue in the pretrial wrangling is if the plaintiff, Catherine Arnos – the mother of Washington's minor son – can legally file the wrongful death action despite the expiration of the two-year statute of limitations.

“This case has been prolonged and prolonged and prolonged,” said Eric Frey, who represents Arnos. He said Washington's son was 4 when the shooting occurred and now is 13. 

“We think it's time to move to trial.”

The description of the shooting has remained generally consistent – Mann happened upon a group of people beating a man on West Main Street in Fort Wayne. When he turned his squad car around, several people walked away. One man – Washington – walked away at a fast pace and Mann said “Hey, come here, man,” several times.

Mann then started chasing Washington, who tried to scale a fence, and the trooper attempted to put him in a chokehold. They fell backward to the ground and Mann said he felt Washington's hands on the left side of his gun belt. His gun was on the right side. Mann didn't radio for support and left his vehicle unattended.

The lawsuit was filed after an anonymous person sent copies of two different Indiana State Police Firearms Review Board reports to Washington's family in March 2017 – the first found fault with Mann's actions and the second didn't.

Frey said if the state gets a negative result at trial, it automatically has the right to appeal. But instead, the Indiana State Police want to delay the case.

The legal maneuver is called an interlocutory appeal and a judge must sign off before a request to the appellate courts can be sent. Marion Superior Judge Cynthia Ayers already certified one interlocutory appeal in the case in 2018 on similar issues and the Indiana Court of Appeals declined to hear it.

But the state is trying again after losing a motion for summary judgment this year. Ayers heard arguments Wednesday during a remote hearing.

Alexander Carlisle represented the state and argued there is no fraudulent concealment by the state police, which is needed for a lawsuit to be filed after a two-year limitation.

He said there was an internal investigation into the shooting but Arnos never asked for the report. Even if she had the law says it is a confidential deliberative document.

“There was no attempt to conceal any facts or evidence,” Carlisle said.

He also warned that the case could stop state agencies from internal investigations because they could be held liable for not sharing documents with the public even if they aren't required to.

“We want to encourage internal investigations. We want state actors to form opinions freely,” Carlisle said.

But Frey points to the basis of the case as the act of fraudulent concealment – “They rewrote the report and concealed facts in the process. ... There is no question that there was a process going on of whitewashing this report.”

The initial version of the firearms training report criticized the investigation into the 2012 shooting and found Mann made multiple mistakes during the incident. It recommended the case be referred to internal affairs to address violations of departmental procedures. But a final report issued several weeks later was scrubbed of those critical statements.

Both reports found Mann's use of deadly force was “objectively reasonable.” There was one dissenting member on that finding.

Allen County Prosecutor Karen Richards decided no charges would be filed against Mann before either report was finished.

Frey said if the initial report stood, Mann would have been disciplined and that discipline would have been public record. But since it didn't, Arnos couldn't learn facts needed to file suit – such as that a chokehold was used.

He said police told the media there was an altercation. “There wasn't an altercation. He was strangled and pulled off the fence and shot,” Frey said.

Ayers set a Monday deadline for proposed orders.

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