Phelps Testifies in Lawsuit
Opening arguments and testimony began Wednesday in a civil lawsuit brought by a former Special Forces soldier against the Moore County Sheriff's Department and the deputy who shot and wounded him.
Former Deputy Randall Butler shot Lt. Tallas Tomeny and Sgt. Stephen Phelps during a Special Forces training exercise in February 2002. Tomeny died, and Phelps was badly wounded. Both were student soldiers and thought Butler was playing a role in a training scenario, according to testimony Phelps gave Wednesday. When Butler stopped the pickup they were riding in, it was because the men driving around Robbins in a truck that Saturday aroused his suspicions, according to Butler's lawyer.
Butler was on the lookout for criminals responsible for a number of daylight burglaries in the upper part of the county. The day was cold, according to the testimony. Tomeny and Phelps were bundled up against the weather. Tomeny rode in front, on the passenger side, with a civilian volunteer, Charles Leiber, driving the truck. Phelps huddled in back, crouched against the cab. He had two fishing rods and a tackle box, part of his cover story as a farm worker with a day off, Phelps said in court.
He was the first witness in his lawsuit alleging Butler was reckless and negligent when he shot the two soldiers. The case is being heard before Judge William Osteen in Federal District Court for the Middle District of North Carolina in Greensboro.
Phelps' lawyer, Carlos Mahoney, told jurors in an opening statement that his client did nothing to justify Butler's attack. He said the deputy lost his professional restraint and acted irresponsibly when he shot the two soldiers.
Mahoney's version has Butler first pepper-spraying Tomeny, then shooting him twice before turning his gun on Phelps, who was trying to get away. On the other hand, defense attorney Jim Morgan says nobody told Butler about the Army games. He'd never heard of Robin Sage, the culminating exercise that takes place now eight times a year in 15 N.C. counties.
Butler spent most of his 15 years of law enforcement in Lee County, where he is now second in command of the Lee County Sheriff's Office as chief deputy. His stint in Moore County as a road deputy was a temporary detour in Butler's career.
When he found himself alone with three suspicious men in a deserted church parking lot and glimpsed an M4 assault rifle in a black carry-on bag Tomeny had been trying to hide, Butler believed he was in mortal peril, according to his lawyer.
He tussled with Tomeny over that bag, his lawyer said and Phelps testified. Then, according to both opening statement and testimony, Butler pulled it away and threw it back toward his patrol car.
At that moment he felt Tomeny reaching for his sidearm, Morgan said. Turning, he used his left hand to pepper spray Tomeny, who turned his head. Then Butler pulled his handgun, and Phelps dove from the truck, heading for the bag and its assault rifle.
Phelps testified he only wanted to keep from being washed out or having to repeat the program for giving up his weapon. He said he was heading for the woods and taking the M4 along with him.
Morgan said Butler saw Phelps heading to get the gun, and felt his life "hanging by a thread." Butler shot to defend his life, not knowing the men were playing a soldiers' game and thought him in on it, according to Morgan.
Phelps said Leiber had stopped and called in at one point, and they'd seen the deputy more than once. When Butler stopped them, Phelps said he assumed they were in a test scenario. They'd be graded on their reaction.
He told the court his training when confronted by law enforcement was to assume they were the enemy in the imaginary country of Pineland which they had infiltrated to aid local resistance fighters played by volunteers like Leiber.
The standard procedure was to first try and talk your way out of trouble, second try bribery (with fake Pineland currency that looks like Monopoly money) and last of all to submit to capture.
Another version of the standard procedure ends differently, Morgan told the court. It says that if bribery fails, kill the policeman. Each version assumes the police are playing roles. According to his lawyer, Butler wasn't.
At one point, Phelps dropped to the courtroom floor to show jurors the position he had been in when he was shot. A lawyer took the position he said Butler was in when he fired, over to Phelps' left and in front of him about 10 feet.
Phelps' testimony continues tomorrow as he explains to the court the injuries from which he says he still suffers. Local EMT workers from Moore County are expected to be the next witnesses called by Phelps' attorneys.
This current trial will ask this jury to decide whether to believe Butler, Phelps or Leiber. All three of their accounts differ to one degree or another, especially on the question of who Butler shot first, and what the soldiers said and did in the moments before, during and after the shootings.
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