Man shot after holding BB gun sues Austin Police Department

AUSTIN (KXAN) — A man who was injured after an Austin Police sergeant shot him for having a gun which turned out to be a BB gun, is suing the Austin Police Department and the officer for using what he calls excessive force.

On March 18, Austin Police sergeant Greg White responded to a disturbance call at Red Oak Apartment complex at 6301 Berkman Drive in Northeast Austin. Police said White, who has been with APD for 17 years, came across Jawhari Smith, 23, who was armed with a semi-automatic pistol and was also involved in the disturbance with his girlfriend.

According to the lawsuit, Smith was walking to the apartment with an unloaded BB gun in his hand.  It goes on to say that White pulled his gun on Smith who told the officer it was only a BB gun.

“If he were to have pointed the gun at the officer, that might be a completely different story, but he didn’t,” said Scott Medlcok, one of the attorney’s from Edwards Law representing Smith.  “Mr.Smith did exactly what he should have done, he told the officer this isn’t a gun, it’s a BB gun, he dropped it and still got shot.”

The civil lawsuit states Sgt. White told smith to drop it, Smith told the officer again that it was a BB gun and then dropped it on the ground and that, “Despite this, and despite the fact that Mr. Smith had done absolutely nothing that could be perceived as threatening and was, in fact, unarmed, Sergeant White, shot Mr. Smith twice, once in the face and once in the shoulder.”

In March, Police Chief Art Acevedo addressed the media and stood behind his officer and said he feared for his life.  Contrary to what the lawsuit says, the chief said Smith did not listen to Sgt. White.

“When the sergeant sees (the weapon), he sees the suspect put it behind his back, allegedly, and then puts it back forward,” said Chief Art Acevedo at a media briefing in March. “The suspect at one point yells, ‘It’s a BB gun.’ The sergeant ordered the suspect several times to drop the weapon but the suspect did not comply.  The sergeant, in fear of his life, fired several rounds at the suspect.”

The lawsuit also accuses Acevedo of “acting outside the scope of his duties as a City Chief” and that he purposely misrepresented what happened by saying Smith had an Automatic Pistol.

In a different press conference three days after the shooting, Acevedo said when he got the scene no one could touch the evidence because crime scene investigators were still processing the area.  He admitted that when he looked at it, he too thought the BB gun was a semi-automatic pistol.

He went on to say that he did not regret putting information about about what he thought was a semi-automatic pistol early and that details change during investigations.

“It could be a water gun. Right? But, if it looks like a semi-automatic pistol the officer or the sergeant reasonably believes it was a semi-automatic pistol. That’s why we teach people to not be running around with realistic looking guns in public,” said Acevedo.

The lawsuit, which was filed by Smith’s attorney’s Jeff Edwards, Scott Medlock and Sean Flammer with Edwards Law, alleges that Sgt. White didn’t provide medical assistance and it wasn’t until another officer came tried to stop Smith’s shoulder from bleeding.

The lawsuit also cited that APD, “utilizes deadly force against unarmed individuals disproportionately when they are African American or minority.”

“The city of Austin police have an unfortunate tendency to shoot unarmed African-American Men and I wish I could say our client, Mr.Smith was the first and only victim of police brutality in the city of Austin but we all know that’s not true,” said Medlock.

The lawsuit lists five different cases where the city paid excessive force claims, the latest one being the case of Larry Jackson who was shot and killed by an officer in 2013.  Last month city council voted and approved $1.25 million dollar settlement with his family.

Smith was never charged with anything.  Sgt. White was placed on administrative leave while authorities investigated the shooting but is back to his normal duties.

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