Both attorneys engaged in a wrongful death lawsuit filed by the family of Christian Alberto Sierra, the17-year-old Purcellville resident who was shot and killed by a Purcellville Police officer in 2014, now have a firm grasp on what they’ll be allowed to argue and who they’ll be allowed to call to the witness stand when the six-day trial begins Oct. 28.
Circuit Court Judge James Howe Brown, Jr. ruled Tuesday thatJulia Judkins, the municipal law attorney representing former Purcellville Police officer Timothy Hood, would be allowed to use multiple affirmative defenses during the trial. He also clarified that certain expert witness testimony would be allowed and that neither Judkins, nor Thomas Plofchan, the attorney representing the Sierra family, would be allowed to use the phrase “general orders” or the word “suicide” in their comments in front of the jury.
On May 24, 2014, Sierra, then a junior at Loudoun Valley High School, cut himself with a 3-inch paring knife and threatened to kill himself outside his Frazer Drive home. Hood responded to the scene following a 2:14 p.m. 911 call.
According to case documents, Hood knew the call was made for a mentally ill resident who was threatening suicide. When he arrived on the scene, he drove 40 feet past Sierra, got out of his car, drew his gun, pointed it at Sierra and yelled for Sierra to put the knife down.
Sierra stood up and moved toward Hood, who then fired four rounds into Sierra’s chest at point-blank range. Moments later, medical teams attempted reviving Sierra, but soon pronounced him dead on the scene.
Sierra’s parents, Edwardo and Sandra, subsequently filed a civil lawsuit against Hood, then-town Police Chief Darryl Smith and the Town of Purcellville for $10.24 million for “sorrow, mental anguish and solace which include society, companionship, comfort, guidance, kindly offices and advice of Christian” and “reasonable funeral expenses.” They also sued for $1 million in punitive damages.
According to Brown’s ruling this week, Judkins can argue that there was probable cause for Hood to use deadly force because Sierra had threatened bodily harm; that Sierra was contributorily negligent for approaching Hood with a knife; that Sierra’s parents were contributorily negligent in discontinuing their son’s psychiatric treatment leading up to his death; and that Sierra assumed the risk of being shot and killed when he approached Hood with a knife.
Plofchan argued that probable cause wasn’t an appropriate affirmative defense to use of deadly force because Hood wasn’t investigating a crime, but was responding to a call related to a potentially suicidal teen. He also argued that contributory negligence shouldn’t be a defense because it can’t be used in cases involving gross negligence. He argued that Hood was grossly negligent in his actions.
Brown also ruled that neither Plofchan nor Judkins would be allowed to use the phrase “general orders” during the trial because, he said, the Purcellville Police Department General Orders are intended for internal use only and should not be used to set standards of care.
While Plofchan said he intended to use the general orders in his argument as being indicative of the standard of care Hood should have practiced and not the actual standard of care, Judkins argued that Plofchan shouldn’t be allowed to use the general orders in his argument that Hood lacked prudence in his actions. “My client’s conduct should be judged by [the conduct of] a reasonable police officer,” she said.
Brown also ruled that neither party would be allowed to use the word “suicide” during the trial, but that Judkins could use the phrase “suicide by cop” if she first lays a proper foundation to do so. He noted that “suicide” should not be used as a synonym for “kill himself.”
Plofchan argued that “suicide by cop” shouldn’t be used at all during the trial because it “invites improper speculation” as to Sierra’s mindset and because of its legal relevance—suicide is a crime in Virginia. He emphasized that witnesses are not allowed to use a conclusion of law when testifying in a civil case. While Judkins said she didn’t plan to solicit her witnesses to use the phrase, she argued that she should at least be allowed to use it in her closing argument.
On the topic of witnesses, Brown opted to not rule on a request by Plofchan to disallow expert testimony from multiple law enforcement officers, including the two Virginia State Police special agents who investigated the shooting and two Northern Virginia Criminal Justice Academy instructors. Brown said he couldn’t definitively rule on the request without evidence, which the trial will present. “I can’t rule in a vacuum on that,” he said.
Plofchan argued that expert testimony from the state’s investigators shouldn’t be allowed because they would ultimately reconstruct the May 2014 shooting. He pointed to “accident reconstruction,” which Virginia has, in most all cases, disallowed in the courtroom.
He also argued that expert testimony from Sgt. Todd Markley, the criminal justice academy’s use of force supervisor, and Jay LaLuz, the academy’s firearms and control tactics specialist, would “improperly influence the jury” because it would focus on general training that the academy provides cadets and not the actual training Hood received.
But Judkins argued that jurors, who aren’t trained in law enforcement practices, need experts to explain how cadets learn to handle real life situations.
Brown said the court would need to bring in more potential jurors than what’s normally required when making a final jury selection, since the incident has garnered substantial media attention in the past five years and many of the potential jurors are likely to have read about it.
Brown ended the three-hour hearing by telling Judkins and Plofchan that he hoped they’ll find a way to settle the case before the trial is set to begin.