A man whose shooting by Fairfax County police three years ago sparked sharp criticism from a judge was convicted yesterday of assaulting a police officer. The jury recommended a three-year sentence for Keith B. Davis, now 63.
The case was the second involving the police tactical unit to draw a judicial rebuke in the spring of 2000. The Virginia Court of Appeals earlier strongly scolded tactical officers who illegally entered an apartment during a 1997 drug investigation; prosecutors then dropped the case.
Davis's case began one night in January 2000 when he shot at black-clad tactical officers as they piled into his townhouse, and was shot in the face in return. Fairfax Circuit Court Judge Stanley P. Klein promised in a pretrial ruling in 2000 that he would instruct the jury that the police entry had been illegal, but he reversed himself last week after hearing all the evidence, including Davis's testimony.
Klein did instruct jurors that they could acquit Davis if they found that he had acted in self-defense. After deliberating for two days last week and two hours yesterday, they voted to convict.
In January 2000, Davis was in the 12th month of a hunger strike to protest the 1978 suspension of his law license in Minnesota. He moved to the Washington area in 1985.
Davis posted regular updates on his protest and hunger strike on the Internet and began e-mailing and faxing Fairfax police and the FBI, warning them not to intervene. On Jan. 24, 2000, he e-mailed his last will and testament to his son, who alerted authorities.
Fairfax police consulted with mental health officials, who had visited Davis before. Authorities decided to obtain a temporary detention order allowing police to take Davis to a treatment facility. That night, Lt. Tom Trapp of the tactical unit, wearing civilian clothes, knocked on Davis's door in the 3000 block of Southern Elm Court, near Fairfax Circle.
Trial testimony indicated that Trapp tried to lure Davis outside by telling him his parked car had been hit. Three tactical officers in black jumpsuits with "POLICE" written on their chests crouched nearby.
When one of the officers leaned forward, he crunched some frozen snow. Trapp and Davis looked his way, and Trapp testified that he tried to grab Davis and pull him outside. Instead, Davis spun away and ran inside.
Three officers charged in after him. Davis testified he pulled a 9mm pistol out of his waistband. Officer Don Cooke said that Davis fired one shot, which missed him, and that he responded with two shots, one of which hit Davis in the face. A second officer then fired five "beanbag" rounds at Davis, and he was taken into custody.
In May 2000, Davis's attorney filed a motion to suppress the evidence of Davis's shot, arguing that it was in response to an illegal entry. Klein declined but did issue a blistering criticism of police.
"Some of the judges of this court have reluctantly concluded that some members of the [tactical] unit see the Fourth Amendment as a distraction they need to work around rather than a requirement of the United States Constitution," he said.
Klein noted that Virginia law allows a person to use reasonable force to repel an illegal arrest, and that he would instruct the jury that "the issue for them . . . is whether the force that was utilized by Mr. Davis was, in fact, reasonable."
The trial was delayed for more than two years after Davis was found mentally incompetent. That finding was reversed in September.
When Davis gave his version of events on the witness stand last week, he undercut the judge's intentions. Davis said he didn't know it was the police at his door, or that Trapp's fender-bender story was a ruse. He said he didn't see the crouching tactical officers or hear them crunch the snow.
Davis said Trapp hit him hard in the chest, then dove out of the way. He then saw "this mass of black," he said, describing the three tactical officers. But even after they entered his home, Davis said, he still didn't identify them as police.
Assistant Commonwealth's Attorney John Murphy argued that Klein shouldn't tell the jury the police entry was illegal if Davis didn't know it was the police. Public Defender Martin W. Lester responded that Davis "believed that no one had a legal right to interfere" with his hunger strike.
Davis faced a maximum five-year prison sentence. He has served more than two years in Central State Hospital, where he was treated for mental illness. He told the jurors they had "convicted an innocent man."
A police spokeswoman, Lt. Amy Lubas, said in a statement yesterday that the tactical officers twice identified themselves as police before Davis shot at them.
"Far from reckless, this operation was meticulously planned to minimize risk to everyone involved," she said.