Robin Sage Trial to Start
Next week in federal court, a lawsuit heads to trial over a tragic incident in which a Moore County sheriff's deputy shot and killed one soldier and wounded another during a Special Forces training exercise called Robin Sage.
Motions are to be heard this week, with jury trial to begin Oct. 13 in Greensboro at the federal courthouse for the Middle District of North Carolina. The suit seeks damages from the Moore County Sheriff's Department and the county's insurer.
At issue is whether or not then-Deputy Randall Butler used excessive force in an altercation stemming from confrontation with two soldiers in civilian clothes and their volunteer trainer who thought Butler stopped their vehicle as part of a training scenario. Butler thought his life in danger from three armed men about to kill him. The soldiers' guns were loaded with blanks.
"This case arises out of tragic events that unfolded on the day of Feb. 23, 2002, in Moore County," the federal court judge said in a statement of the case. "On that date, defendant Moore County Deputy Sheriff Randall Butler shot and killed Tallas Tomeny and shot and seriously wounded plaintiff Phelps, both Green Beret Special Forces soldiers."
Phelps, Butler and a man named Charles Leiber directly witnessed the incident. While their testimony concerning the events they witnessed is similar in some ways, it is also different as to certain important facts, the court said.
A jury will decide whose account to believe and what the true facts are.
According to court documents, as part of the Army's Robin Sage training exercise, Phelps and Tomeny left their base camp that day for reconnaissance on a railroad bridge. They received a ride from Leiber, a civilian assisting the military in his free time.
Leiber was driving a Ford Ranger pickup truck with Tomeny giving directions in the passenger seat. Tomeny had a backpack containing various items, including the two halves of an M-4 assault rifle.
Phelps rode in the bed of the truck with a tackle box and two fishing rods. All wore plain clothes. The zipper to the main compartment with the M-4 rifle was covered by a flap, and Phelps maintains that Tomeny never opened that zipper.
Whether he did or not is one of the facts at issue in the case. Butler says he opened it himself and saw an assault weapon in the pack, according to court records. But Phelps contends that Butler eventually got upset and grabbed the bag away from Tomeny.
At one point, Tomeny was pulled off balance toward Butler, who was able to wrest the backpack from Tomeny with his left hand and throw it across his body to the ground near the front driver's side wheel of the patrol car. He also pushed Tomeny back. Phelps claims that Butler then drew his pistol with the safety off. Tomeny had his hands up. Butler reholstered the pistol, pulled his pepper spray, and began spraying Tomeny in the face, again according to Phelps' sworn statement in court documents.
Tomeny backed away, toward the passenger side of the truck, while screaming and cursing. The truck had side boards on the bed rails and Tomeny largely passed out of Phelps' view behind the boards as he backed up. Phelps, not wanting to be pepper sprayed, stood, jumped out of the back of the truck, and ran to grab the backpack, according to the statement.
He swore that he still believed that all of this was part of the training exercise and that he intended to grab the backpack and run to the edge of the woods to distance himself from Butler and formulate a plan.
Instead, he said heard two rapid shots behind him. He tried to stop and turn, but slipped on the wet pavement and fell. After landing on all fours, he saw Butler turn to face him and he heard two more shots.
One of those last two shots hit him in the right arm, and the other hit him in the chest. The bullet that hit his chest punctured his diaphragm, liver and intestines before lodging in his left hip. As Phelps lay on the ground, Butler approached him. Phelps cursed him and asked how he could not know they were in the military. Butler allegedly told him to shut up and stay down or he would shoot him again.
Tomeny, shot in the chest, was pronounced dead at the scene. Phelps was hospitalized for 13 days.
'On a Recon'
Leiber's account differs at the point that he and Butler entered the patrol car. Leiber claims that Butler questioned him as to where he lived and what he was doing, and he replied that he was from Pineland and that the men in his truck were two migrant workers who were going fishing, court documents say.
He claimed to have picked them up in Pineland. In response to further questioning, he stated that the men were doing "recon."
He testified in his deposition that when it "appeared" Tomeny was not going to show any more of the contents of the bag, Butler pulled out his pistol and then reholstered it. He states that Tomeny responded by pulling an orange from the bag. Leiber said he did not remember anyone opening the main compartment of the backpack.
Leiber's deposition states that he does not remember ever observing Tomeny's hands reach behind his back. This is one of the main points at issue between his statement and that of Butler.
According to Leiber, when the pepper spray seemed to run out, Butler immediately pulled his pistol and fired two shots at Tomeny. At that time, Phelps jumped off the truck and ran.
Butler's account differs markedly on certain key facts that will be before the jury if the case proceeds to trial. According to his statement, he was on patrol in northern Moore County that day.
While he had general knowledge that the military sometimes trained in Moore County, he said he did not know of the existence of the Robin Sage exercise, did not know its details, and did not know that any exercise was being conducted in the area that day.
Butler said he had, however, heard that there had recently been a series of property crimes in the area, including burglaries of homes and outbuildings.
Because of four factors -- the unsolved property crimes in the area, seeing the same truck in the area earlier in the day with a person riding in the back and apparently asleep in cold weather, the actions of the passenger, and the turns that the truck made after being sighted and followed -- Butler became suspicious and pulled the truck over.
According to Butler, Leiber told him first that he and his passengers were going fishing, then added that they were migrant workers. When asked which it was, Leiber allegedly replied that he was trying to find work for migrant workers. Butler thought this answer to be odd because it was winter, and there were no crops in the fields. Finally, Leiber told Butler he was "on a recon."
At this point, Butler left Leiber in the car and approached Tomeny's window. As Tomeny rolled down the window, Butler said in his statement, that he noticed the backpack on the floor of the truck and felt that Tomeny was uncomfortable and trying to hide the bag. He asked Tomeny to step out and show him the contents of the bag. He also noticed that Phelps continued sleeping or pretending to sleep and considered this suspicious under the circumstances.
'Kill Him Now'
Butler's sworn deposition says he asked Tomeny to open the pack and Tomeny said he would, but did not. Butler testified in his deposition that Tomeny acted oddly by unzipping the bag halfway and then quickly zipping it closed again. Butler says he then unzipped the backpack himself and saw what he thought were two machine guns in the bag.
After Butler saw the guns, he and Tomeny struggled over the bag, the statement says. Butler was able to take the bag from Tomeny and throw it near the front, driver's side tire of his patrol car. When he turned back, he claims that he felt and saw Tomeny's hands near the pistol on his right hip. He then drew the gun with his right hand and pushed Tomeny away with his left while commanding him to stay back.
When Tomeny did move away, Butler reholstered his gun, but he states that Tomeny moved toward him again, he said in the deposition. Butler then attempted to pepper spray Tomeny. Butler said he believed that Tomeny turned his head, causing the pepper spray to miss him. He claims that he heard Tomeny yell, "It's too late. It's too late, you're dead."
According to Butler' statement, Tomeny then began pointing and saying "You're dead. You're dead." Finally, Tomeny yelled to Phelps, "Go ahead. Shoot him. Kill him. Kill him." He also screamed "Kill him now."
Phelps then got up from the truck, jumped out and rushed toward the backpack. Butler believed that Phelps was going for the guns and that he actually saw part of the guns come out of the bag as Phelps grabbed it and turned to face him. He stated that he also saw, with his peripheral vision, Tomeny reaching behind his back as if to pull something from his pants. Butler claims he warned Phelps verbally but, when Phelps did not respond, he then shot Phelps.
After shooting Phelps, he turned to face Tomeny. Because Tomeny was still reaching behind his back as if for a weapon, he shot Tomeny and retreated to the back of the car where he could cover Leiber while calling for backup.
Based on their version of the facts, Phelps and Tomeny's father filed suit against Butler in both his individual and official capacities, Lane Carter in his official capacity and Fidelity and Deposit Co. of Maryland.
Carter was not actually sheriff at the time of the shootings. However, because the suit is only against him in his official capacity, he is the named defendant in the suit, which is really against the Sheriff's Office.
Contact John Chappell at 783-5841 or by e-mail at firstname.lastname@example.org.
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