ATTORNEYS: Photo proves Darnell Wicker didn't swing saw, lunge a - WDRB 41 Louisville News

ATTORNEYS: Photo proves Darnell Wicker didn't swing saw, lunge at police before shooting

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A still image from a body camera video allegedly showing Darnell Wicker with a saw at his side when he is shot by LMPD. A still image from a body camera video allegedly showing Darnell Wicker with a saw at his side when he is shot by LMPD.

LOUISVILLE, Ky. (WDRB) -- Attorneys for the family of Darnell Wicker have made public a still image from a Louisville Metro Police body camera video they say shows Wicker holding a saw by his side -- not waving it or lunging toward officers -- as he is shot and killed on Aug. 8.

"They (LMPD) said he was raising and swinging it," said attorney Sam Aguiar, who represents Wicker’s daughters, Danielle Cleveland and Dominique Wicker in a wrongful death lawsuit against the city and police. "Clearly there's evidence that LMPD has that shows their officers shot this man repeatedly while he had a saw by his side, next to his tool bucket, and he was not making any kind of lunge."

An internal investigation by the LMPD Public Integrity Unit into the actions of Officers Taylor Banks, Beau Gadegaard and Brian Smith is still pending, according to an email from Alicia Smiley, a spokeswoman for the department.

The police department did not respond to a phone message seeking further comment. The picture from Banks' body camera, filed in court records Friday, is blurry and includes a red circle on where Wicker is holding the saw allegedly at the time he was shot. 

Aguiar said Mayor Greg Fischer has pledged transparency in this case -- and he says LMPD should have already announced that Wicker was shot while standing still with a saw by his side.

Aguiar points to LMPD's online transparency page where it still lists Aguiar as being armed with a "Knife/Saw." Aguiar said Wicker did not have a knife.

"They haven’t followed through on their pledge" of transparency, Aguiar said in an interview. "It has been three months. Actions speak louder than words."

Jean Porter, a spokeswoman for the mayor, said the city does not comment on pending litigation. 

Police initially said officers were responding to a domestic violence call when Wicker came out of the apartment armed with a knife and a tree saw.

Officers told him to drop his weapons, but instead, the man allegedly charged the officers, according to the initial reports. 

The department released body camera video that appears to show the officers yelling "drop it" at least five times, followed by the sounds of at least eight shots. 

"He came outside -- he came out the door and was holding a knife in his hand, he started kind of swinging it around a little bit and he kind of came at us and so we shot," Banks can be heard explaining on a body camera video.

A woman on the video is heard yelling, "They told him to put it down and then he started swinging it back and forth."

Aguiar said attorneys for the Wicker family filed the photo in federal court Friday because a response to a motion to dismiss the suit was due by Monday.

"We needed to put it out by the deadline," he said. "We were hoping they (LMPD) would come out and announce it first."

Police typically do not discuss a case while it is pending. 

As part of the response on Friday, attorneys for Wicker argued against a motion by attorneys for the officers to dismiss a complaint claiming police did not properly provide medical care to the dying man. 

The lawsuit argues that Wicker had "a right to medical care" beyond the officers just calling for an ambulance. It says the ambulance took 12 minutes to arrive and Wicker was handcuffed and officers "left him lying on the ground bleeding without providing any first aid."

But attorneys for the officers' attorneys have claimed they were not required to give him "on-scene medical care."

In a motion to dismiss that part of the suit last month, the attorneys argue that any claims of alleged negligence by officers in failing to assist Wicker “must be dismissed" because such care is not required by state law, adding it is a "non-existent constitutional right."

"Police officers are trained in the art of policing, not the medical sciences," attorneys for the LMPD officers wrote. "Treating multiple bullet wounds requires skill and training, and a police officer with only rudimentary medical training could easily make a gunshot victim's condition worse, not better."

In response, attorneys for the family argued that once a person is taken into custody, "that officer has a constitutional duty to provide adequate medical care to treat serious medical conditions" beyond calling EMS, according to court documents.

The officers must have had some first aid training "to do something to help Darnell other than just stand around and wait for an ambulance."

The attorneys for police cited a federal case out of Ohio in which officers did not apply a tourniquet to a man who had been shot. The U.S. District Court ruled that police officers had "fulfilled their duty" by calling for Emergency Medical Technicians to render aid. 

But attorneys for Wicker's family said other rulings have gone the other way, depending on how long it takes for EMS to respond. They cited another case from the U.S. Sixth Circuit in which it took EMS 12 minutes to respond that found "simply calling EMS may not have been enough."

Police, according to the response, "cannot act with deliberate indifference to a serious medical need of a person in his custody."

The federal lawsuit also claims the officers "unreasonably and unjustifiably cut off their blue lights prior to entering the parking lot of the apartment complex" and "did not announce themselves as law enforcement."

It alleges that the officers fired at Wicker "more than seven times within two seconds" of him walking outside.

Conrad, among others, are also named as defendants in the lawsuit. 

Wicker, 57, was shot and killed by Banks and Gadegaard. Smith did not fire his weapon.

Banks and Gadegaard, with the department since June 2015 and June 2014, respectively, are now on administrative leave until the investigation ends. Smith remains on regular duty.

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