DEADLY FORCE INVESTIGATION: OFFICIAL, FULL REPORT

From Muscatine County Attorney's Office

Deadly Force Investigation Report

Shooting of JAY LARUE

February 8, 2006

Muscatine, Iowa

Released March 30, 2006, by the Muscatine County Attorney's Office

Gary R. Allison, Muscatine County Attorney

SUMMARY OF INVESTIGATION:

On February 8, 2006, law enforcement officers of the Muscatine County
Drug Task Force and the Iowa Division of Narcotics Enforcement
participated in the controlled purchase of methamphetamine from Jay
LaRue. Following a successful purchase of approximately one half
ounce of methamphetamine by an undercover officer from LaRue,
officers allowed LaRue to leave the area of the transaction in his
vehicle. An attempt was then made to have a marked law enforcement
vehicle effect a traffic stop of LaRue's vehicle. Before this could
occur, LaRue began driving away at a high rate of speed.

LaRue was involved in a pursuit with law enforcement that lasted for
several minutes. The pursuit ended when Muscatine County Sheriff's
Department Det. Terry Harrison used a "pit" maneuver to push LaRue's
vehicle off the road and stop it. Det. Harrison and several other
officers approached LaRue's vehicle in order to arrest him. During
the removal of LaRue from his vehicle Det. Harrison's service weapon
discharged one time, striking LaRue in the shoulder. LaRue was
provided medical treatment at the scene and was later transported to
Unity Hospital in Muscatine and then to the University of Iowa
Hospitals and Clinics. LaRue spent two days in the hospital before
being released.

Findings

Muscatine County Attorney Gary R. Allison has reviewed the
investigation into the shooting injury of Jay LaRue on February 8,
2006, and makes the following findings with respect to the filing of
criminal charges against Det. Terry Harrison:

1. There is conflicting evidence as to whether the shooting of LaRue
was the result of an accidental discharge of Det. Harrison's weapon
or whether the shooting was a deliberate action done to eliminate a
threat of serious bodily injury to Det. Harrison.

2. Regardless of the factual determination as to why the firearm was
discharged, there is no evidence of criminal intent or action on the
part of Det. Harrison nor is there sufficient evidence to prove
beyond a reasonable doubt that Det. Harrison was not justified in a
belief of danger posed by LaRue. As a result of these determinations
no charges will be filed against Det. Harrison in connection with
this incident.

Scope And Conduct Of Investigation

Upon the initial determination by the Muscatine County Sheriff's
Department that one of its detectives had been involved in the use of
deadly force which had resulted in injury to a person the department
requested the Iowa Division of Criminal Investigation ("DCI") conduct
a full investigation. This request was made in accordance with
departmental policy. This investigation has been conducted by the DCI
and the Muscatine County Attorney's Office. The Muscatine Police
Department provided valuable assistance in the forensic processing of
the scene of the shooting and the collection and preservation of
physical evidence. The Iowa State Patrol also assisted by
investigating the motor vehicle collisions that had occurred during
the pursuit of LaRue.

The Muscatine County Attorney's Office has been provided with a
complete copy of all DCI reports and interviews concerning this
investigation. The DCI has also provided photographic evidence from
the shooting scene as well as a tape of a squad car video that shows
the pursuit and shooting of LaRue.

Investigation Of Shooting Of Jay Larue

On December 29, 2005, a confidential informant acting under control
of the Muscatine County Drug Task Force ("MCDTF") met with Jay LaRue
("LaRue") in the parking lot of the Muscatine Wal-Mart. The
confidential informant purchased approximately 3.22 grams of "ice"
methamphetamine for $300. "Ice" methamphetamine is a particularly
pure form of methamphetamine which can command a higher street price.

On February 8, 2006, the confidential informant and a Special Agent
of the Iowa Division of Narcotics Enforcement (acting in an
undercover capacity) met with LaRue at Riggo's gas station located on
Stewart Road in Muscatine. The confidential informant and the
undercover agent purchased 13.5 grams of "ice" methamphetamine for
$1,300. LaRue had driven to Riggo's in a 1993 red Mazda MX-6 bearing
Iowa license plate 823BC. At the time of the transaction
investigators were aware that LaRue's privilege to operate a motor
vehicle in the State of Iowa was revoked due to a drug related
conviction. The plan was to allow LaRue to leave after the
transaction and then have a marked squad car effect a traffic stop.
At the time of the stop LaRue would be told that the only concern the
deputy had was LaRue's lack of a driver's license. LaRue would be
informed of the drug charges against him once he was taken into
custody for the driving charge. By this method investigators planned
to minimize the chance that LaRue would resist or flee and that the
arrest could be made with little risk.

LaRue drove away from Riggo's by going west on the Industrial
Connecter and then northeast on Grandview Avenue. He was being
followed by unmarked vehicles being driven by MCDTF personnel as a
marked unit moved through traffic to catch up. LaRue turned on Houser
Street and began traveling at a higher rate of speed. As Muscatine
County Dep. Mike Bailey approached the immediate area of LaRue
(driving a fully marked MCSO squad car), LaRue abruptly turned into a
business parking lot on Houser Street. Dep. Bailey pulled in to block
the exit from the lot. LaRue responded by reversing his direction of
travel and driving through the front yards of several businesses to
evade Dep. Bailey. LaRue drove through the yards of the businesses at
a high rate of speed. Several other officers (who were in unmarked
units) moved to block LaRue but avoided deliberately striking him
because LaRue was driving too fast for contact to be safe. LaRue's
vehicle did strike one unmarked law enforcement vehicle but did not
cause substantial damage to either vehicle. During this time Dep.
Bailey turned around and pursued LaRue as he turned south on Grandview.

LaRue drove south at a high rate of speed. The posted limit in the
area is 55 miles per hour. The defendant was driving in excess of 90
miles per hour. LaRue proceeded south on Grandview Avenue past the
point where it intersects with U.S. Hwy. 61. At this point LaRue
continued going straight and was southbound on Hwy. 61 and being
followed by several unmarked police vehicles and Dep. Bailey. Dep.
Bailey caught up with LaRue as he was just north of the intersection
of U.S. Hwy. 61 and 41st Avenue South. LaRue turned at the
intersection to take 41st Avenue to the east. As LaRue did so he
struck another vehicle at the intersection. Shortly thereafter
LaRue's vehicle was struck by Det. Harrison's vehicle. Det. Harrison
use a police maneuver referred to as a "pit" maneuver. This is
intended to stop a motor vehicle by causing it to spin out of
control. When Det. Harrison struck LaRue's vehicle it had the desired
affect and caused it to come to rest in the ditch. For details of the
direction of LaRue's travel see Exhibit A.

Det. Harrison and several other law enforcement officers approached
LaRue's vehicle with weapons drawn. Det. Harrison, who is left
handed, approached with his service weapon (a Glock .40 S&W caliber
handgun) in his left hand. As he got closer to the vehicle Det.
Harrison switched the weapon to his right hand and then reached for
the driver's side door handle with his left hand. Det. Harrison
opened the driver's side door and reached in with his left hand to
pull LaRue from the vehicle. At this time LaRue's hands were raised.
As LaRue was being pulled out of the vehicle Det. Harrison's service
weapon discharged one time. LaRue was struck in the top of his right
shoulder. Law enforcement personnel at the scene immediately rendered
first aid and summoned an ambulance. LaRue was taken by the Muscatine
Fire Department ambulance to Unity Hospital. LaRue was later
transported to the University of Iowa Hospitals and Clinics where he
was treated for two days. It should be noted that DCI investigators
have not been privy to LaRue's medical records and the specifics of
his injuries are not known exactly. It is understood by investigators
that LaRue's injuries were not life-threatening and that there is an
expectation of full recovery.

Immediately after the shooting of LaRue, Det. Harrison and another
officer were providing first aid to LaRue. The other officer (who had
been pulling up in his vehicle when the actual shot had been fired)
asked why LaRue was bleeding. At this time Det. Harrison stated, "I
had an accidental discharge." It should be noted that the normal
police terminology for the unintentional firing of a weapon is
"accidental discharge." This other officer repeated this statement to
his supervisor in a telephone call which occurred shortly after fire
department personnel arrived at the scene and took over the care of
LaRue. This statement to the supervisor was witnesses by yet another
officer. Two other officers present recall hearing the phrase
"accidental discharge" during this period of time but cannot recall
who said the phrase. LaRue, in an interview done the following day at
the hospital stated that shortly after being shot he heard the word
"discharged" stated by Det. Harrison.

Det. Harrison told his immediate supervisor at the scene (after the
conversation described above) that he had intentionally shot LaRue
because LaRue was not following his verbal orders and that LaRue had
dropped his right hand down toward LaRue's waist during the encounter
at the vehicle. Det. Harrison further stated that he thought the
suspect was reaching for a weapon and that the shooting of LaRue was
deliberate.

Det. Harrison was formally interviewed by DCI investigators
approximately three hours after the shooting. Det. Harrison informed
DCI investigators that he fired his weapon because he perceived a
threat from LaRue as LaRue was being pulled from the vehicle. Det.
Harrison further informed DCI investigators that he believed that
LaRue's right hand dropped down and that LaRue was possibly reaching
for a weapon. Det. Harrison stated he perceived a threat to himself
from LaRue's action and fired his weapon to eliminate that threat.

LaRue's vehicle was seized and later searched pursuant to a search
warrant. During the search of the vehicle investigators found the
preserialized U.S. Currency used to purchase the methamphetamine from
LaRue on February 8 as well as an additional quantity of
methamphetamine. Investigators did not find a weapon in the vehicle,
at the scene of the shooting, or in LaRue's clothing. There is no
evidence that LaRue had a weapon in his possession during this incident.

Upon being released from the hospital LaRue was arrested for his
involvement in the drug trafficking activity described above and the
eluding from law enforcement. If convicted of all charges against him
LaRue faces substantial prison time. As of the date of this report
LaRue has entered pleas of not guilty to all charges and those
charges are still pending.

Applicable Provisions Of Iowa Law

The shooting of one person by other potentially implicates numerous
provisions of the Iowa Criminal Code. The most serious offense
available under these facts would be the charge of Attempt to Commit
Murder (a felony offense punishable by a mandatory 25 year prison
sentence). The least serious charge available would be Assault (a
simple misdemeanor punishable by a 30 days jail and/or a fine of
$500). A listing of the potential charges and the elements of proof
of each are included as Exhibit B to this report.

Under Iowa law there are two types of intent that would apply to the
burden of proof for these potential charges, general intent and
specific intent. A jury would be instructed that general intent means
the following:

To commit a crime a person must intend to do an act which is against
the law. While it is not necessary that a person knows the act is
against the law, it is necessary that the person was aware he was
doing the act and he did it voluntarily, not by mistake or accident.
You may, but are not required to, conclude a person intends the
natural results of his acts.

Iowa Uniform Criminal Jury Instruction 200.1.

The concept of specific intent builds on the definition of general
intent to require proof of a specific purpose to be accomplished:

"Specific intent" means not only being aware of doing an act and
doing it voluntarily, but in addition, doing it with a specific
purpose in mind.

Because determining the defendant's specific intent requires you to
decide what he was thinking when an act was done, it is seldom
capable of direct proof. Therefore, you should consider the facts and
circumstances surrounding the act to determine the defendant's
specific intent. You may, but are not required to, conclude a person
intends the natural results of his acts.

Iowa Uniform Criminal Jury Instruction 200.2.

Specific intent is generally considered to be a more difficult
element to prove due to the necessity of the jury to make a
determination of the person's plan or purpose in engaging in the
criminal act. Although general intent offenses are still difficult to
prove, there is less of a requirement to show what was in the
defendant's head when the offense was committed.

If it were to be determined that the shooting of LaRue was the result
of an accidental discharge the prosecution would be unable to show
that Det. Harrison had the requisite criminal intent because it could
not be said that the shooting of LaRue was done "voluntarily, not by
mistake or accident" as those terms are used in the jury instruction.
In that the prosecution would be unable to prove the existence of
general intent, the somewhat higher level of proof needed to show
specific intent could also not be met.

In the event it is determined that the shooting of LaRue was a
deliberate act and not an accident the prosecution would be required
to prove that Det. Harrison acted without justification in the
shooting of LaRue. To determine whether his actions were legally
justified it is important to review the relevant provisions of Iowa
law which define the rights and duties of persons who use such force
against another. Iowa Code 704.1 provides the following definition
of reasonable force:

"Reasonable force" is that force and no more which a reasonable
person, in like circumstances, would judge to be necessary to prevent
an injury or loss and can include deadly force if it is reasonable to
believe that such force is necessary to avoid injury or risk to one's
life or safety or the life or safety of another, or it is reasonable
to believe that such force is necessary to resist a like force or
threat. Reasonable force, including deadly force, may be used even if
an alternative course of action is available if the alternative
entails a risk to life or safety, or the life or safety of a third
party, or requires one to abandon or retreat from one's dwelling or
place of business or employment.

Several comments regarding this provision are necessary. First, it
makes no distinction between the use of reasonable force by a peace
officer or a civilian. Second, it contains an objective component in
that it asks what a "reasonable person" would judge to be necessary.

Put another way, an unreasonable belief that force is necessary in a
particular situation, even if genuinely held, is not sufficient.
Finally, the actor is required to pursue an alternative course of
action (such as retreat) unless such alternative would fall under one
of the defined exceptions. It should also be noted that a person may
use reasonable force regardless of whether the unlawful force is
directed at themselves or another. Iowa Code 704.3.

The definition of reasonable force references the term "deadly
force." This term is defined by Iowa Code 704.2:

The term "deadly force" means any of the following:

1. Force used for the purpose of causing serious injury.

2. Force which the actor knows or reasonably should know will create
a strong probability that serious injury will result.

3. The discharge of a firearm, other than a firearm loaded with less
lethal munitions and discharged by a peace officer, corrections
officer, or corrections official in the line of duty, in the
direction of some person with the knowledge of the person's presence
there, even though no intent to inflict serious injury can be shown.

4. The discharge of a firearm, other than a firearm loaded with less
lethal munitions and discharged by a peace officer, corrections
officer, or corrections official in the line of duty, at a vehicle in
which a person is known to be.

As used in this section, "less lethal munitions" means projectiles
which are designed to stun, temporarily incapacitate, or cause
temporary discomfort to a person without penetrating the person's body.

There is no doubt that Det. Harrison used deadly force in this incident.

Although the question presented to the Muscatine County Attorney is
limited to whether the Iowa Code was violated by Det. Harrison, an
analysis of federal constitutional law may provide a useful context
for the evaluation of his conduct. The U.S. Supreme Court has
observed the following regarding the use of force in the context of
the Fourth Amendment's protections against unreasonable search and
seizure (the use of deadly force being the ultimate "seizure" that can occur):

The "reasonableness" of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight With respect to a claim of
excessive force, the same standard of reasonableness at the moment
applies: Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates the Fourth
Amendment. The calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and rapidly
evolving-about the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the "reasonableness"
inquiry in an excessive force case is an objective one: the question
is whether the officers' actions are "objectively reasonable" in
light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation. An officer's evil
intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer's good
intentions make an objectively unreasonable use of force constitutional.

Graham v. Connor, 490 N.W.2d 386, 396-97 (1989) (internal citations omitted).

The use of deadly force in this incident cannot be separated from the
highly dangerous actions of LaRue which preceded it. LaRue had
committed a serious felony offense which would likely cause him to be
imprisoned for a substantial period of time. When officers tried to
stop his vehicle he fled in a particularly reckless and wanton
fashion. LaRue had endangered numerous lives in the minutes before
his vehicle was stopped. Indeed, this pursuit only ended when Det.
Harrison deliberately caused a traffic collision. Under these
circumstances it is understandable that an officer's sensitivity to
the potential of violence would be heightened and a reasonable person
in that officer's position might interpret LaRue's arm movements as a
threat. Under the facts presented it cannot be said that the
prosecution would be able to prove beyond a reasonable doubt that the
actions of Det. Harrison were not justified.