Originally Posted to Courthouse News

BY PHILIP A. JANQUART

San Francisco

A federal judge refused to dismiss all claims that police and a deputy district attorney conspired to kill a man in a sting operation, and routinely use a “tool” to cover up police misconduct.

Charles Burns died on May 10, 2013 in a hail of gunfire after surrendering to law enforcement officers, his parents John and Tammy Burns said in a February 2014 lawsuit against 22 officials and officers, the cities of Concord and Antioch and Contra Costa County.

The 59-page lawsuit paints a chaotic and bloody scene in which Burns was the passenger in a car driven by co-plaintiff Bobby Lawrence. As the two returned from Wal-Mart, where Burns had bought a Mother’s Day card, several unmarked police cars rammed to a stop.

Lawrence said he was hauled out of the car, assaulted and illegally detained for a prolonged period of time.

Burns got out of the car and “jogged approximately 20 feet” before stopping and surrendering to police, three of them lining up “in firing squad fashion” and “unload[ing] their weapons,” even after Burns’ body lay lifeless on the ground “in a pool of his own blood,” according to the 30-page complaint.

His parents say a Concord Police Department dog was then released to attack their motionless son. The dog’s handler retrieved the dog and then stood over him, firing two more rounds into his body.

“The officers then stood around and laughed and joked while Burns’ body lay open to the public for several hours, just feet away,” according to the complaint.

The police claimed they found drugs at Burns’ house, but the family’s attorney Peter Johnson said Charles did not have any drugs on his person when he was shot.

“My client is dead, and who deserves to be shot at all, let alone killed that way?” Johnson told Courthouse News.

Johnson said the killing was not justified because Burns put his hands in the air and “slumped his shoulders” in submission as he surrendered to police.

“I think they should be investigated for criminal charges, but the problem is that the DA is sitting on it,” Johnson said.

The case is complicated by the fact that Contra Costa County District Attorney Mark Peterson, the former mayor of Concord; Deputy District Attorneys Kevin Bell and Barry Grove; and Senior Inspector John Conaty are all defendants in the case.

The plaintiffs’ third amended complaint claims Bell helped plan and carry out the operation, and that Grove was one of four people who supervised the “illegal cover-up operation of the intentional killing of Charles Burns.”

Both Bell and Groves acted “consistent with a ‘police officer’ function of investigation as opposed to his prosecutorial function,” the complaint states.

Bell did not immediately respond to a voice message left at his office.

Central to the many accusations in the lawsuit is that law enforcement agencies and the district attorney’s office use a voluntary countywide law enforcement policy known as Law Enforcement Involved Fatality Investigation (LEIFI) to cover up police misconduct.

“The policy was originally meant to provide transparency,” Johnson said. “The theory is that it would involve more than one agency involved in investigations to give the appearance of transparency.

“In reality, if you are all on the same page, it will have the reverse effect, and there is a history here: not only is it happening among those agencies, but also within the District Attorney’s Office, which is responsible and involved. They could prosecute some of these cops, but they don’t.”

Johnson said Peterson was endorsed by the Concord Police Department during his campaign for district attorney.

The plaintiffs seek damages for violations of the Fourth and 14th Amendments and state law, unlawful seizure and excessive force, refusal of emergency medical care, unjustified and prolonged detention, unlawful arrest and false imprisonment, conspiracy, battery and unlawful use of lethal force.

The defendants, seeking dismissal, sought immunity, some claiming they were “only there” at the time of the killing. The City of Antioch said it is not responsible for what happened to Burns.

U.S. District Judge Laurel Beeler dismissed seven of the nine claims, including the claims against Contra Costa County and the City of Antioch for participation in the alleged cover up, and failure to properly train Concord police officers.

“The allegations nonetheless are relevant to the excessive force and false arrest claims,” she wrote.

She refused to dismiss the conspiracy charge.She found that the plaintiffs “sufficiently allege a conspiracy claim against the Concord officer defendants and Mr. Bell.

“The circumstantial evidence is sufficient to infer that the Concord officer defendants and Mr. Bell agreed to use excessive force against Charles Burns and shared that common objective, even if all of them did not know the exact details of the plan.”

Attempts to contact a spokesperson for the Concord Police Department were unsuccessful.

The defendants have until April 23 to answer the plaintiffs’ third amended complaint.