PORTSMOUTH, Va. (WAVY) — 10 On Your Side is questioning the prosecutor, who last week said an officer won’t face charges for shooting an unarmed man in the chest, because it was accidental.
In June, Chesapeake Police Officer Elliott Boyd shot Michael Smith on South Street, while trying to serve him fugitive warrants from Maryland. The bullet remains lodged between Smith’s ribs and liver. His family is considering a civil suit, claiming the officer was guilty of at least simple negligence — and on that claim, the investigating Commonwealth’s Attorney agrees.
“All I heard was a pop. I heard a pop, a loud bang, and I was hit,” Smith told WAVY.com days after the incident from Portsmouth City Jail.
When Officer Boyd found Smith walking on a Portsmouth street, he was unarmed. But the officer didn’t know that and had reason to suspect otherwise.
“The officers were armed with the knowledge that [Smith] was wanted on burglary and firearms charges,” said Portsmouth Commonwealth’s Attorney Earle Mobley.
“The officer is left handed, and he’s driving the car. He’s trying to pull himself out of the car, then he pulls the trigger … that happened because he was transferring his gun from his left hand to the right hand, and then tried to exit the vehicle,” Mobley said. “You could see where his finger would slip off the side of the gun, onto the trigger, and then, because your muscles are contracting as you are getting out of the car, you could certainly pull the trigger.”
Mobley won’t charge Boyd because he said the shooting was an accident and that there was not criminal intent. But Smith’s attorney, Jim Lewis, doesn’t buy that whole story.
“Not only is that keystone cops, I find it incredible that [Boyd] could manage to hit Michael right square in the chest without aiming or trying to,” Lewis said.
10 On Your Side asked Mobley about accountability and what responsibility Boyd had in that scenario.
“There was negligence on the part of the officer, but in this case, I don’t believe there was gross negligence … I certainly see negligence in this case because the gun went off, and it shouldn’t have,” Mobley said.
Lewis seemed pleased to hear Mobley’s assessment: “That is very helpful information, maybe we will call Mr. Mobley to testify.”
Officer Boyd is on administrative duty, pending an internal investigation by the police department.
“I am not going to go so far as to say this was intentional, because I don’t have any basis for that, but from where I am, it defines gross negligence,” Lewis said.
Mobley does not agree with gross negligence, only simple negligence. Chesapeake Police Chief Kelvin Wright would only release the following statement:
The officer is still on administrative duty. In addition to the criminal investigation conducted by the Portsmouth Police Department, the Chesapeake Police Department Ethics and Conduct Section is conducting an administrative investigation. The purpose of this investigation is to review and determine if the department’s policies and procedures were correctly followed. The conduct of the officer, as it relates to the performance of his duties, will be evaluated and, if appropriate, corrective action will take place. The information revealed in the administrative investigation is confidential, as written in the State Code of Virginia and, therefore, will not be disclosed. I value the partnership we have with the Hampton Roads community as we work together to maintain public safety.
Jim Lewis said if he can’t reach a settlement with the city of Chesapeake and Officer Boyd, he will take his civil case to a Portsmouth jury.
“This is a case about how much Michael is entitled to recover, and if Chesapeake doesn’t want to take his injury seriously, then we are going to find out what a Portsmouth jury thinks,” Lewis said.