City, police respond to wrongful death lawsuit

ELKHART — Elkhart Police officers named in a wrongful death lawsuit disagree with the version it gives of the events surrounding a December 2016 fatal shooting.

The lawsuit filed against five officers and the City of Elkhart claims that Norman Gary’s rights were violated because of the failure of the city and police department to properly train officers. The 29-year-old was shot and killed Dec. 4, 2016, by two Elkhart police officers who were responding to the sound of gunfire in the 1800 block of DeCamp Avenue.

Gary’s sister, Lameka Gary, filed the lawsuit in district court in November, about eight months after a grand jury decided no charges would be filed against the officers, Nathan Lanzen and Leonard Dolshenko. It additionally names Brandan Roundtree, then-Chief Ed Windbigler and then-Assistant Chief Todd Thayer.

It includes claims that Windbigler interfered with an official independent investigation of the fatal shooting in a number of ways, including interviewing and assisting the officers in developing diagrams of the scene and their interpretation of the facts without placing them under oath or requiring that they sign affidavits containing their statements.

It also says he failed to preserve or record the interviews with the officers or to turn over to the Indiana State Police the recordings, records, statements and diagrams they made.

Defendants’ response

In a response filed on behalf of the city and the officers in February, attorney Julie Havenith notes where they agree with the account of the shooting given in the lawsuit and where they dispute its claims. 

Dolshenko, Lanzen and Roundtree were responding to a burglary report at 541 Capital Blvd. when they heard multiple gunshots. Lanzen and Dolshenko ran toward 1807 DeCamp Ave., about a block away, Lanzen in the lead with his gun drawn.

They say in the court filing that the gunshots stopped before Dolshenko rounded the corner onto DeCamp.  

They agree that Lanzen saw a dark SUV drive north on DeCamp at high speed and then that he and Dolshenko saw a vehicle traveling down a nearby alleyway. They agree that neither of them saw or heard gunshots coming from the vehicle.

They say they didn’t have enough information to admit or deny a claim that there was no evidence that gunshots came from the vehicle in the alley. They say the same about a claim that no witnesses at the party at 1807 DeCamp saw shots being fired from the vehicle and a claim that Lanzen confirmed that a person lying on the sidewalk had been shot.

All three officers deny an allegation that none of them had enough knowledge of the facts to lead a trained officer to believe that any occupant of the vehicle had committed any offense. The filing denies claims that Lanzen wasn’t in the path of the vehicle but was north of the alley, investigating the person on the ground, and had allowed the vehicle to exit the alley onto DeCamp.

They admit that Lanzen and Dolshenko did not order the vehicle to stop but say it was because they did not have time to do so.

They agree that Lanzen fired shots at the vehicle and that he didn’t see any of the occupants of the vehicle at the time or know anything about their identity. They agree that Lanzen was acting under the authority of the law when he opened fire but deny claims that he unlawfully used excessive and deadly force or opened fire without probable cause.

Dolshenko opened fire next. In the filing they similarly deny that, while he did not see or know anything about the identity of the occupants either, he acted in a way a trained officer would not have in the circumstances. 

They deny claims that the occupants of the vehicle, which included Norman Gary, did not pose a threat to them at any time or that Gary had not committed any criminal offense in their presence. They deny a claim that Norman Gary was not armed.

They admit that Elkhart Police never determined who fired the shots that the officers heard.

Immunity claims

In the filing, they also deny a series of accusations that the city and Windbigler failed to properly train the officers about use of deadly force or the maintenance and use of their recording equipment. They also deny the claims about Windbigler and Thayer interfering with the investigation by the Indiana State Police.

The response includes a number of claims about the defendants being immune from liability under Indiana law and the lawsuit being barred by a two-year statute of limitations. And it includes claims that the suit cannot be brought on because Norman Gary assumed the risk of injury and because his “negligence and/or criminal, willful, wanton and reckless behavior was the proximate cause” of his death.

The filing also includes a demand for trial by jury.

The next hearing scheduled on the lawsuit is a preliminary pretrial conference Wednesday in U.S. District Court in South Bend.

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