Baltimore jury finds use of lethal force during traffic stop was justified

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A Baltimore police officer acted reasonably when he shot and killed a Cherry Hill man who was fleeing from a traffic stop, a city jury decided Thursday afternoon.

Attorneys for the family of Ernest Oliver, 39, had argued Oliver did nothing to justify the use of lethal force, but lawyers for Officer Ryan Diener were able to convince the jurors that Diener fired because he believed Oliver was armed and turning to shoot at the pursuing officers.

James H. Fields, an attorney representing Diener, said the jury, which only deliberated an hour after a seven-day trial, correctly recognized that “Officer Diener was merely doing his job and left with no alternative but to act as he did under the circumstances.”

During the course of the trial before Baltimore City Circuit Judge W. Michel Pierson, Diener and his Southern District colleagues all testified to seeing a gun as Oliver took off on his moped, which was confirmed by a tape of the radio transmission from their squad car at that time.

But no weapon was ever found, and A. Dwight Pettit, an attorney for Oliver’s estate and children, told the jury that one had been “manufactured” to support the officers’ story.

After the verdict, however, he conceded the consistency of the officers’ story regarding the weapon made the difference.

“I think the radio transmission carried the day,” he said. “That was probably their strongest piece of evidence.”

Asked about the possibility of race being a factor in a trial where the family of a black man killed by a white officer was asking an all-black jury for compensation, Fields said the result showed the jury kept an open mind and listened well. They rejected battery, gross negligence, constitutional violations and wrongful death counts.

“I don’t think the jury saw race,” he said. “I think they saw facts and evidence.”

Fatal shot

According to court testimony, around 8 p.m. on Aug. 4, 2006, Diener and his fellow “flex squad” officers tried to stop Oliver — in part, because as an older man on a scooter he fit the profile of a drug dealer. But he led them on a half-mile chase through Cherry Hill, ditching his scooter at the alley behind the 600 block of Roundview Road and dashing away on foot.

“He didn’t cause any of that but he had an obligation” as a police officer to address the situation, Fields said. Diener has been with the police force since July 2003.

When Oliver allegedly turned while reaching toward his waist, Diener fired four shots from his 40-caliber Glock handgun, one of which passed through Oliver’s right lung.

Oliver was pronounced dead at the Maryland Shock Trauma Center minutes later. An autopsy revealed the wound path was “back to front,” according to his family’s civil suit.

Police also found drugs near Oliver’s body. Oliver had previously been convicted of drug dealing on three occasions and had been charged with assault and armed robbery.

‘A perfect eye witness’

In his closing arguments, Pettit admitted Oliver had fled from police on an unregistered moped without a helmet but rejected officers’ testimony that Oliver ever turned back toward pursuing officers as he ran away from them down the alley.

“That bullet hits Mr. Oliver directly in the back and comes directly out the front,” Pettit told the jury. “Mr. Oliver wasn’t turning. … Mr. Oliver was running for his life.”

Pettit, who tried the case along with Matthew Bennett, relied heavily on the testimony of Clinton Jones, a longtime neighbor of Oliver. Jones, whom Pettit called “a perfect eyewitness” and “a very, very good witness,” claimed he was at the scene and said Oliver never turned around before Diener shot him.

Fields, however, pointed to inaccuracies in Jones’ recollection, such as his estimate of Diener’s height — Jones said 6 feet 8 inches but Diener’s a slight 6 feet — and how Diener was running with his weapon cocked and pointed at Oliver.

“No officer in his right mind would do that,” Fields said. Fields imitated Jones’ voice and mocked his repetition of the word “approximate” as a way to give inexact testimony.

Fields, of Jones & Associates P.C., which has a contract with the city to represent its officers in such cases, said even though a gun was never recovered, Diener reasonably believed Oliver still had one in his pants.

“He’s not to wait to see a weapon because if he does, it’s too late,” Fields said. “There’s no do-overs; there’s no replays.”

As for where the alleged gun could have disappeared to, Fields said the scene was over a large area and that officers struggled to keep people and car traffic from passing through it.

“There’s opportunity for it to have been removed,” Fields said of the “chaos” that ensued that evening. He called the scene “totally contaminated.”

Missing weapon

Renita Smith, the mother of one of Oliver’s four surviving children, attended the trial with the mothers of Oliver’s other children and his brother Antoine, the representative of Oliver’s estate. She said she never knew Oliver to “associate” with guns and did not believe he had one that day, nor did she think anyone could have picked up the gun officers suggest he jettisoned while fleeing.

“I don’t think anybody picked up anything because there was nothing to pick up,” she said. “Why would they pick up the gun and not the cell phone?”

Fields said the officers tried mightily to find the gun, employing dogs and a helicopter, but emphasized that they were not required to produce it. He said Oliver put himself in harm’s way when he violated law after law.

“He set into motion a series of events that caused his death that day,” Fields said.