The family of a wrecker driver who was shot and killed by an off-duty Houston Police officer at the Woodland Hills Village Apartments nearly two years ago has filed a civil rights suit in federal court against the officer, the city of Houston and the apartment complex where the deadly shooting occurred.

According to a complaint filed in the Southern District Court of Texas in March, the common-law wife along with the father of 39-year-old John T. Barnes alleges Officer Ryan Gardiner "shot and killed John T. Barnes under circumstances where no reasonable police officer would have done so."

The family's attorney, David Hodges, told The Observer in a phone interview that Barnes and his common-law wife Karen Echols were squabbling outside the door to their ground-level apartment on the evening of August 1, 2009, when Officer Ryan Gardiner, who was working an extra job as a security guard on the premises, decided to step in.

"They weren't getting physical, or screaming at the top of their lungs. The next-door neighbor said they weren't disturbing them. There wasn't even enough of a commotion for Gardiner to get involved," Hodges said. "When Gardiner approached John and ordered him to get on the ground for no reason whatsoever, that was an unlawful order."

The complaint states Gardiner was wearing his official HPD uniform when Barnes, who Hodges says was unarmed, refused to comply with the order and pushed Gardiner away from him. Hodges argues Barnes was within his rights to do so.

"John was entitled to push this officer, and that's when Gardiner attacked him," Hodges said. "All the witnesses say Gardiner was the aggressor in this. This wasn't some guy who attacked a police officer, it was the other way around."

Gardiner, Hodges said, shot Barnes several times from about 10 feet away. The suit alleges Gardiner deprived Barnes of his Fourth Amendment rights by employing excessive and deadly force without reasonable cause, and by failing to immediately summon medical help following the shooting.

According to Hodges, Barnes had made a living as a wrecker driver for 22 years, since age 17. But, he said, Barnes also had a great respect for the law, knew his rights under the law and even worked in law enforcement himself at one point.

Houston Police officials said in the aftermath of the shooting that Barnes had wrestled Gardiner's taser gun away from the officer, a claim Hodges said is vehemently denied by witnesses to the incident. Gardiner was nevertheless no-billed by a Harris County grand jury and no criminal charges were ever filed.

"The assistant district attorney called only two witnesses to testify in front of the grand jury - one was Ms. Echols, and the other was Officer Gardiner." Hodges said. "It was her word against his, and the grand jury decided to believe Gardiner. They didn't call the independent witnesses they knew would have told a different story. For me, that's disturbing. You could indict a ham sandwich if you wanted to - the thing is, you have to want to."

According to Hodges, HPD failed to discipline Gardiner, who he says has a track record of having used his taser gun more often than any other HPD officer. Gardiner had also been involved in two prior shooting incidents involving unarmed civilians, he said - once missing his shot, and the second time causing injury. The third time, Hodges said, Gardiner managed to take a life.

Hodges claims the city of Houston took other steps in an attempt to sweep the shooting under the carpet, saying the city exercised the privilege to suppress the release of Barnes' autopsy report, even after the grand jury returned the no-bill and the criminal proceedings had come to an end. Normally public record, the city denied release of the documents and did not produce them until the civil suit was announced, Hodges said, which gave attorneys the right to obtain the autopsy report in the discovery stage anyway.

"The evidence is unfavorable to them, so they kept it secret," Hodges said. "Once we finally got the autopsy report, we saw that Mr. Barnes had been shot once in the chest, and six times in the back. I think it's clear that when someone has their back to you, they're not posing a threat. To shoot them six times in the back is a case of excessive force on the part of this officer."

Hodges said Barnes' family is still devastated by the loss. Barnes left behind two children, 13 and 14 at the time, as well as his parents and step-children he was very close to.

"Fundamentally, Mr. Barnes' family wants to see Officer Gardiner removed from the police force," Hodges said. "We're also hoping to affect a change in the city of Houston and HPD regarding the disciplining of officers involved in shootings. We as citizens are allowed to resist unlawful force. People think well, it's the police. But they have to follow the law like everybody else. Just because you were issued a peace officers license does not give you carte blanche authority to violate the law."

Barnes' family is suing for pecuniary loss, mental anguish, loss of household services, and loss of inheritance. Hodges said no dollar amount has been attached to the law suit, and any monies awarded are left to the jury's discretion.

As of April 28, none of the defendants had entered a response to the suit and no attorneys of record were listed.