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The State of NoVa
Posted at 03:59 PM ET, 11/17/2011

Fairfax police sued in David Masters shooting

A Manassas attorney has sued Fairfax County, its police department and the officer who shot and killed David A. Masters, an unarmed motorist, just barely beating the two-year deadline for filing a civil lawsuit.


David A. Masters, days before he was shot and killed by Fairfax County Officer David S. Ziants. Masters’ brother-in-law filed a wrongful death suit in the case. (Courtesy of Gail Masters)
The suit names Masters’s still grieving ex-wife and stepdaughters, who administer his estate, as the plaintiffs. But the women never gave their consent to file the action.

The lawyer who filed the suit, Jon E. Shields of Manassas, said he needed to file the action before the statute of limitations expired, and that Masters’s ex-wife and stepdaughters were not performing their duty as estate administrators.

Gail Masters, David Masters’ ex-wife, best friend and caretaker when he was shot and killed Nov. 13, 2009, said she had no interest in a lawsuit. She said Shields had not contacted her or her daughter, Courtney Hubbard, before naming them as plaintiffs. The lawsuit states that Shields represents Masters and Hubbard, who is wrongly identified as “Courtney Masters.”

If the suit is declared invalid, it could signal the end of any legal action against Fairfax or former Officer David S. Ziants, who killed Masters and was fired by the Fairfax police earlier this year. That, in turn, would prevent lawyers, Masters’s family or the public from ever seeing the investigative reports, witness statements and in-car video tapes of the incident, which police typically withhold except under subpoena in civil cases such as these.

David Masters, a former Green Beret who was living on disability benefits after a job accident, lived in Fredericksburg. In 2007, he prepared a will naming Hubbard and Gail Masters as his heirs and executors. He was largely estranged from his natural family, including his sister in Manassas. Shields, the attorney, is married to David Masters’s sister, Joyce Shields.

On Nov. 13, 2009, police were looking for Masters after he stole some flowers out of a planter at a business in Hybla Valley. A few minutes later, officers saw Masters’s Chevrolet Blazer and pulled in behind him at the intersection of Route 1 and Fort Hunt Road.

Prosecutors said Ziants stood alongside Masters and ordered him out of the car. Instead, the Blazer rolled slowly forward. Ziants mistakenly thought that Masters had struck another officer, that Masters was reaching for a gun and that the Blazer was stolen, prosecutors said. He fired twice, killing Masters. Ziants was cleared of criminal wrongdoing.

Shields filed suit on Monday in Prince William County Circuit Court against Fairfax County, the Fairfax Board of Supervisors, the Fairfax police, Chief David M. Rohrer, and Ziants. Prince William was chosen because it is where Ziants lives, according to the suit.

Under Virginia law, only the administrators of a dead person’s estate may file a wrongful death suit, on behalf of the estate. But Virginia law also states that only family members may recover damages from such a suit. Hubbard and Gail Masters, the stepdaughter and ex-wife, do not qualify as family members under the law.

Shields said that Hubbard and Gail Masters have “a fiduciary duty to the statutory beneficiaries,” meaning his wife and other surviving members of David Masters’s family. David Masters’s mother also lives in Manassas, his father lives in Florida, and he also has a brother in Rhode Island. “I’m taking steps to protect them,” Shields said.


Gail Masters, ex-wife of David A. Masters, and her daughter Courtney Hubbard at the spot on Route 1 in Fairfax County where David Masters' truck came to rest after he was shot and killed by a Fairfax County police officer. (Tom Jackman - THE WASHINGTON POST)
He said he had difficulty contacting Hubbard and Gail Masters, who now live in David Masters’s trailer in Fredericksburg. He said if they did not join the lawsuit, he would “take other steps to have them substituted,” meaning he would go court in Fredericksburg and try to have them replaced as administrators of David Masters’s estate.

Shields said “it would be a tragedy for Fairfax County to benefit” from a lack of legal action, “and go without having to answer questions about what happened that day.” He added, “This can probably be resolved in a short amount of time.”

Fairfax County, its police department, police chief and board of supervisors almost certainly will invoke sovereign immunity in the case and be dismissed out of the case, if prior suits are any indication. Governmental bodies can only be held liable if their policies or practices are grossly negligent. Fairfax police fired Ziants for violating their policies on use of deadly force.

The county will defend Ziants, as an officer at the time of his actions, and if the suit proceeded past preliminary motions to the discovery stage, the police would have to provide the relevant parts of their investigative file. Police departments may disclose or withhold investigative files under Virginia law, and Fairfax police always withhold them, but they must be disclosed under subpoena.

Fairfax police declined to comment on the pending litigation. Ziants could not be reached for comment.

Gail Masters and Courtney Hubbard declined to comment on the suit, other than to say they had not authorized Shields to file it. They do not have interest in any litigation, and were anxious for the two-year deadline to pass.

By  |  03:59 PM ET, 11/17/2011

Categories:  Fairfax County, Police, Courts | Tags:  David Masters, Jon Shields, Virginia

 
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