DeKalb police shooting case to go to trial

A jury must decide whether DeKalb County police were justified when they shot and killed Dirk Smith in his Lithonia home five years ago, the federal appeals court in Atlanta has ruled.

Smith was killed after he barricaded himself in a bathroom and told police he refused to

Credit: Bill Rankin

Credit: Bill Rankin

comply with their orders to drop a knife because he didn't trust them. In its decision, the 11th U.S. Circuit Court of Appeals sent the case back to federal court for a trial.

The lawsuit was filed in 2012 against DeKalb County and six police officers by Smith's widow on behalf of herself and the couple's two children. The police officers were later cleared of any criminal wrongdoing by the district attorney.

The shooting occurred in March 2010 after Smith and his wife went on vacation. While they were gone, a friend kept watch over their two children at the family home.

But while they were away, the Smiths had an argument that led to Dirk Smith cutting short his vacation and returning for home.

While her husband was headed back, Estelle Smith called him. During the conversation, they agreed he should seek counseling. She then called the house sitter and instructed him not to let her husband into the house until he sought out help.

When Dirk Smith arrived home, he couldn't get inside because he'd forgotten his keys. And the house sitter told him what his wife had said and wouldn't let him in.

Smith then walked to the back of the house and began banging on a sliding glass door. Eventually, he threw a rock through the glass and entered the home. He then went upstairs and used a knife he’d taken from the kitchen to jimmy open two bedroom doors that had been locked during the vacation.

The house sitter then called Estelle Smith and told her what was happening. She told him to call police, which he did.

Two DeKalb officers arrived 15 minutes later. One of them got on the phone with Estelle Smith, who told the officer her husband was stressed out and needed someone to talk to.

The officers then went inside the house and found Dirk Smith at the top of the stairs,  holding the kitchen knife down by his side.

They ordered Smith to drop the knife, but he refused. He said he was in his own home and he’d put the knife down only if they’d put their guns down.

When Smith continued to ignore the officer’s demands, Officer Charles Ings fired his Taser at Smith. Smith screamed, fell down, then got up and ran into the bathroom.

One of the Smith’s children has since testified that he saw his father drop the kitchen knife when he was tased, and Estelle Smith has testified that her son told her he saw an officer pick the knife up off the floor.

While Dirk Smith barricaded himself inside the bathroom, more officers arrived. After they failed to convince Smith to come out, Officer Richard LePage Jr. kicked the bathroom door down, and Sgt. Vincent Gamble ordered that Smith be tased once again.

After that, Smith briefly retreated to a bathroom closet and then charged out. Officers have testified that Smith had the kitchen knife raised and was slashing it.

Ings shot Smith in the chest and LePage shot Smith in the neck and the head. Smith collapsed and soon died from his gunshot wounds.

Gamble later said he removed the knife from Smith's hand. But the court record contains a photo of the knife on the floor by Smith's foot, not his hand, the 11th Circuit ruling said.

Estelle Smith’s lawsuit alleged the police illegally entered the Smiths’ home, used excessive force by tasing her husband and illegally used deadly force when they shot and killed him.

Credit: Bill Rankin

Credit: Bill Rankin

In its decision, issued Aug. 25, the 11th Circuit said the officers were justified in entering the Smith home when they did because police need to be able to act swiftly during an emergency. In this case, the court said, the officers had been told Smith should not have been inside the house, that he had smashed a glass door to get inside, that he was emotional and that his kids were inside.

Similarly, the court said the officers were justified in using the Taser on Smith. The first time they did it,  Smith was armed with a knife and officers did not use the Taser until it was clear that Smith wasn't going to cooperate,  the court said.

The second time the Taser was employed also occurred while Smith continued to refuse to comply with their demands. "In this tense situation, we cannot say the officers' single use of a taser on Mr. Smith was unreasonable," said the ruling, written by Judge Beverly Martin.

The fatal shooting is another matter, because there are differing accounts as to whether Smith was holding a knife when he was shot and killed, the ruling said. While the officers said Smith emerged from the bathroom holding a knife and slashing it, the plaintiffs contend he dropped the knife when he was tased the first time and didn't pick it back up.

Martin noted it is not the appeals court's function "to weigh the facts and decide the truth of the matter" at this stage of the litigation.

In her lawsuit, Estelle Smith challenged most of the officers' actions the day of her husband's death.

"Many of those actions were reasonable under these tragic circumstances," Martin wrote. "But we cannot say, as a matter of law, that Officers Ings and LePage acted appropriately when they shot and killed Mr. Smith. It is for a jury to decide whether their actions were justified."