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Judge hears arguments in McCree case
Attorneys and supporters announced a civil suit in the death of Ariane McCree in front of the Chester County Courthouse in 2020.
By TRAVIS JENKINS TJENKINS@ONLINECHESTER.COM
tjenkins
As they argued their cases, both sides of the civil suit filed over the death of Ariane McCree painted vastly different pictures of what led up to his 2019 death.
McCree was shot and killed by police in the parking lot of the Chester Walmart in November of 2019. After being detained for shoplifting, he bull-rushed an officer in the store's loss prevention office, fled the store and continued to run before allegedly fetching a gun from his car. An officer (Justin Baker) who was called to the scene to pick him up on the shoplifting charge ultimately encountered McCree in the parking lot, shot him, took his gun, then applied pressure to a chest wound until EMS arrived. McCree died shortly thereafter. The office of State Attorney General Alan Wilson absolved Baker and other officers entirely, saying they acted in defense of themselves and the public, but the McCree estate filed a civil suit against Baker and Officer Nick Harris, Walmart and the City of Chester (for whom the two officers worked).
The full report narrative of the investigation into the matter by the State Law Enforcement Division (SLED) said McCree had been "down" and "depressed" in the weeks leading up to the shooting. He was apparently disappointed that he had not had the opportunity to play football professionally and his usually upbeat demeanor was said to have changed after he was shot at and robbed while living in Tennessee. He had recently lost his job and was said to have been upset that he would not be able to buy his child Christmas presents. A friend of his had recently been killed and he was said to have become argumentative and was "talking out of his head." He had trouble sleeping and may have been awake for up to a week at the time of the incident.
Last August, a federal magistrate authored an opinion in favor of granting summary judgment to the defendants in the case. The McCree estate wants a jury trial in the matter and the two sides appeared Monday in front of Judge Joseph Anderson.
Colin Ram, attorney for the plaintiffs, acknowledged that McCree did go to Walmart and did leave with a lock set that cost around $45 without paying. However, Ram said as a former all-state football player at Chester High School that played at Jackson State, McCree was well known to most everyone in his small hometown. He told the cashier, "put it on my tab" before leaving. Ram said that cashier had a disciplinary history, however, of repeatedly failing to charge customers for purchased items. McCree did return later that morning with nearly enough money on his person to pay for the lock (he was reportedly about 60 cents short) and attempted to pay for the lock then. Ram said it was the Walmart loss prevention officer that gave the order to arrest and that McCree was actually handcuffed by an officer not certified to do so. All of that, combined with his being detained in the loss prevention office, qualified as an illegal arrest.
"He had a right to protest an illegal arrest," Ram said.
He also had a right to flee the loss prevention office, Ram alleged.
McCree ran from Harris in the parking lot and the two had a pair of brief encounters, during which Harris said he was headbutted. At some point, Harris said, "He's got a gun" and "shots fired" both of which Baker heard over the radio as he made his way to the store. Harris fired at McCree but ran out of ammunition. Ram said there was almost no way McCree, who was still handcuffed, would have been able to open a car door, find a gun and brandish the weapon. As he continued to reconstruct his version of the events, Anderson interjected with a question. Body camera footage shows McCree walked directly towards Baker and continued to do so even as Baker fired his gun at him. He ran from Harris until he allegedly retrieved his gun. If he did not have a gun, why didn't he continue to run, Anderson asked, or why didn't he at least take cover?
"I'm going to hide under a car, not continue walking towards (Baker)," Anderson said.
Ram apparently did not answer the question to Anderson's satisfaction because much later in the proceedings, he said, "you never really answered my earlier question." At that point, Ram said that McCree was likely disoriented and had actually been hit twice by shots from Harris (in the shoulder and hip).
"He was a dead man walking," Ram said.
Ram then argued that not only did McCree not get a gun from his car, he did not have a gun at all. He was searched in the loss prevention office before the chase began and that turned up nothing but a pocketknife. Had he had a gun, he would have most certainly have returned fire.
Once McCree was shot by Baker and fell to the pavement, Baker ran towards him and removed a gun. Ram contended the gun was planted there. Testing indicated the DNA of three separate individuals was on the gun, with Baker and McCree being two of them. He said Harris could not be ruled out as the third person. Ram also noted inconsistencies in testimony from Harris (who he said is seeking disability for injuries and claims to have memory loss), Baker and bystanders. One eyewitness initially said McCree was holding a gun near his shoulder (which would not have been possible with him handcuffed behind his back) then recanted when interviewed by SLED and simply said she saw "a black man with a gun." Another claimed to have seen him fire his gun multiple times and then changed their story and Baker allegedly claimed, "He pulled a gun and started shooting at people." Harris said a person outside the store told him McCree was shooting, but Ram said that individual later said he didn't talk to Harris at all. He said Harris and Baker offered "an evolving narrative" and that SLED "coached" them.
"The jury has to hear that," he said.
There was not definitive evidence that McCree's gun (or the one planted on him per Ram) was actually fired.
Daniel Plyler, attorney for Baker, said his client's only frame of reference when he arrived on scene is that McCree had run, had a weapon, that shots had been fired and that Harris was out of ammo and desperately asking for help. Baker didn't change his answer, he said. He said, when asked, in the immediate aftermath of the incident that McCree had pulled a gun and started shooting at people because that was his understanding at the time based on the information he got from radio traffic. Once he'd viewed surveillance footage and got more information, his answer changed slightly based on the facts. He wasn't coached and did not lie about the events.
At one point, Ram said Baker struggled to identify the point in the video when he realized McCree had a gun. Plyler argued that he was able to pick a moment out when the gun was visible just not the exact moment when he presented it. He also said that the body camera footage is grainy and that the human eye, in real time at the event, was able to see and process things better and more quickly. Plyler showed an enhanced image of McCree from the video, which he said, clearly showed him holding a gun over his hip. At a certain point in the video, it is obvious that McCree is holding a gun, even without having to digitally enhance anything. Once Baker shot McCree and took him to the pavement, he rushed to him and very clearly removed the gun from his person.
"There is zero evidence he planted the gun," Plyler said.
Law enforcement eventually tracked down the fact that McCree had, in fact, purchased the gun from a pawn shop (Ram argued otherwise), which further discredits any idea that the weapon was planted on McCree at any point, Plyler said. In fact, he said family members acknowledged McCree had a gun, with one family member asking if the gun had been found and another stating that they thought it had already been taken as evidence. McCree's DNA was also on the trigger. As for the idea that McCree would not have been able to open his car door and grab a gun because he was handcuffed, Plyler reminded the Court that McCree was a college athlete and that he was able to open the door to the loss prevention office and escape while handcuffed.
Attorney Andrew Lindeman represented Harris during the proceedings. He said it is incorrect to say McCree specifically came back to the store to pay for the lock set. He left without paying, came back a short time later, briefly left again, then came in a third time. Even upon doing so, he seemed to mill around and did not approach a store employee to pay. Instead, he offered to pay only once store security staff approached him.
Lindeman said the idea put forth by Ram that the gun was planted on McCree had no basis in fact.
"There is no credible evidence," he said. "It is not plausible. When did they come together to exchange guns? Why place a loaded gun on a dangerous subject?"
McCree's vehicle was found with the doors open and the motor running, Lindeman said. He also mentioned DNA evidence, also mentioned McCree's DNA was found on the trigger and that the plaintiffs discussed DNA evidence but did not provide an expert witness on the subject. His client also could not be responsible for McCree's wrongful death because he did not fire the fatal shots.
David Morrison, representing the City of Chester, said the City could not be found liable for McCree's death because his arrest in and of itself did not kill McCree. While he conceded the first officer that encountered McCree did not have the power to arrest him, he added that he did not arrest him. He placed the cuffs on him but did so at the direction of Harris.
"They're trying to paint him as the arresting officer when there were three officers there," Morrison said.
He closed by saying the plaintiffs "have no evidence" to back their claims.
"They want to say all the witnesses are lying or wrong. They do a good job of trying to discredit," he said.
The final attorney to speak was Randi Lynn Roberts, representing Walmart. In her brief remarks, she primarily emphasized that Walmart did not arrest McCree or direct police to do so. They showed police evidence of McCree's shoplifting and the police decided to make the arrest.
Ram was allowed to respond and reiterated his belief that McCree did not have a gun, that the item Plyler identified as a gun was actually a reflective patch on McCree's sweatshirt, that McCree "didn't admit to any crime" and went back to the store to pay for the lock set and that Walmart pays off duty officers $30-an-hour to work security in their stores and for that kind of money "they do what you tell them to."
Anderson said he would take some time to consider all the evidence and arguments and issue an opinion at a later date.
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