Lawyer: Cop killed 'innocent man ... take responsibility for it'

Frederick McAllister, was shot and killed by Bridgeport Police in 2008. On Tuesday, Oct. 23, 2012, a jury cleared the city of Bridgeport and Officer Brian Fitzgerald in the fatal shooting. Frederick McAllister, was shot and killed by Bridgeport Police in 2008. On Tuesday, Oct. 23, 2012, a jury cleared the city of Bridgeport and Officer Brian Fitzgerald in the fatal shooting. Photo: Contributed Photo Photo: Contributed Photo Image 1 of / 1 Caption Close Lawyer: Cop killed 'innocent man ... take responsibility for it' 1 / 1 Back to Gallery

BRIDGEPORT -- The lawyer for the family of a South Carolina man fatally shot in the back by a city police officer following a chase four years ago urged a Superior Court jury Tuesday to find the city responsible for the police officer's actions.

"If a police officer shoots an unarmed, misidentified man in the back, they must tell the truth and take responsibility for the death they caused," Antonio Ponvert III told the jury of three men and three women as he began his case in the civil trial. "We trust our police to serve and protect us, but here, they killed an innocent man, and now they are trying to avoid taking responsibility for what they did."

Family of the dead man, Frederick McAllister, sobbed in the back of the crowded courtroom as Ponvert spoke on their behalf.

But Associate City Attorney Betsy Edwards countered that under state law, Lt. Brian Fitzgerald, who sat by her side at the defense table, did nothing wrong.

"Police officers are not required to gamble with their lives; we don't expect them to go into dangerous situations and determine if someone is armed by taking a bullet," she told the jury. "A police officer is allowed to shoot a suspect before the suspect shoots them. If they wait to see a gun, they have already been shot."

The lawsuit, filed by McAllister's family, contends Fitzgerald was not in danger and violated Police Department procedures when he shot 33-year-old McAllister at the Success Village housing complex Jan. 31, 2008. The city and Police Department are at fault for McAllister's death for failing to properly train Fitzgerald, according to the lawsuit.

Fitzgerald fatally shot the unarmed McAllister following a chase in which police mistook McAllister for his cousin, Justin Dewitt Ellerbe, who was wanted by South Carolina police on outstanding felony charges.

Then-State's Attorney Jonathan Benedict later cleared Fitzgerald of any criminal wrongdoing in the incident. He is scheduled to testify during this trial.

The trial before Judge Dale Radcliffe is expected to take two months. It was standing room only on the first day as spectators crowded into the sixth-floor courtroom to hear opening arguments.

Ponvert, who told the jurors to consider him a teacher, painted Fitzgerald as a gung-ho cop who left an off-duty road post to jump into an undercover operation without permission or even knowing who he was chasing.

While Edwards, assisted by recently retired judge Bruce Levin, responded that McAllister's death was his own doing because he had the choice to pull over and surrender to police instead of running. She said witnesses for both the plaintiffs and defense will agree the shooting was lawful, given the circumstances.

Following opening arguments, Ponvert called Police Detective William Reilly to the stand as his first witness.

According to a State Police investigation of the incident, police officers that evening had been issued a flier with Ellerbe's photograph and told that he was previously seen with a Desert Eagle handgun and was driving a red/burgundy SUV.

About 8:30 p.m., a dispatch message was broadcast to officers that an informant had seen Ellerbe, armed with the handgun, parking a maroon SUV on Hewitt Street. Police subsequently set up surveillance there.

Shortly before 11 p.m. police saw two men approach the SUV. When the vehicle began to drive away, officers in cruisers -- emergency lights flashing and sirens blaring -- attempted to stop the SUV, but it sped off toward Boston Avenue.

Fitzgerald, who was not among the officers in the original pursuit, saw the SUV driving right at his patrol car as he approached Barnum Avenue and Willow Street. He swerved to avoid a collision, then pursued the SUV. During the chase, the SUV drove across a store parking lot and across a curb before crashing into a chain-link fence and a tree on Granfield Avenue.

The driver of the SUV got out and began advancing toward the officer with his hand in his front waistband, according to the investigation. Fitzgerald drew his gun and ordered the man to stop and drop his weapon, but instead the man swore at him and appeared to aim a gun at the officer, the report states.

Fearing for his life, Fitzgerald fired three shots at the man, but missed, according to the report.

As the man turned sideways toward Fitzgerald, the officer told investigators that he thought he heard a gunshot and responded by firing three shots. The man dropped to one knee, threw something on the ground and ran into Success Village.

While this was going on, Fitzgerald noticed a second man in the SUV, but focused on the driver, who he believed was firing at him, the report states.

Fitzgerald chased the first man, and caught up with him in a walkway between buildings 19 and 20. The officer ordered the man to stop, but the man reached into his waistband and turned toward the officer, the report says.

Fitzgerald, thinking the man might be reaching for a weapon, ordered him to show his hands. When the man failed to comply, Fitzgerald fired a single shot that he initially believed had missed. However, as the man turned to face the officer, Fitzgerald noticed a large blood stain on the man's chest.

McAllister was later taken to Bridgeport Hospital, where he died.

There was no gun found where McAllister fell, and the object Fitzgerald saw him discard prior to the foot pursuit was found to be a BlackBerry.

Five grams of cocaine were found in the dead man's shirt pocket, according to the report. A loaded revolver was found in the SUV.

dtepfer@ctpost.com; 203-330-6308; http://twitter.com/dantepfer