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Federal trial for 2015 fatal shooting of veteran by OR police set to start Tuesday

Eugene Police tactical vehicle in the yard of Brian Babb's home after the March 30, 2015 shooting. (Eugene Police Department/Observer-Dispatch/TNS)

A wrongful death lawsuit filed by the family of a military veteran shot and killed by Eugene police nearly five years ago is headed for trial Tuesday in federal court.

An eight-member jury will decide if Brian Babb, 49, was armed and aimed a rifle at a Eugene police officer before being fatally shot March 30, 2015. The lawsuit — filed by Ronda McGowan, a personal representative for the estate of Babb, as well as Babb’s father Lee Babb, ex-wife Stephanie Woodcook and his children Connor Babb, 20, and Kaylee Babb, 24 — alleges unreasonable use of force, battery and wrongful death on the part of Eugene police officer Will Stutesman and the City of Eugene.

The trial begins at 9 a.m. in courtroom 2 in U.S. District Court in downtown Eugene.

Babb’s therapist asked police to make a welfare check March 30, 2015 after a suicidal Babb reported he had a handgun held to his head at his west Eugene home and had fired a round in the home. Police then arrived in a BearCat armored vehicle for protection and later began hailing Babb over a loudspeaker, which ultimately led Stutesman, standing in the armored vehicle’s roof turret, to fatally shoot Babb as he stood in his front door.

Stutesman said Babb had shouldered a scoped hunting rifle — which later was found to be unloaded — and aimed it just before the police officer fired. The officer told investigators he could see “the hole in the end of the barrel.”

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The lawsuit details Babb’s service in the U.S. Army and Oregon National Guard, including three tours of duty. He was wounded by enemy fire in Afghanistan, causing a traumatic brain injury. He was discharged with 130% disability rating, the lawsuit states. He also suffered from post-traumatic stress disorder.

The lawsuit states, Babb’s conversation with his therapist was a cooperative back and forth, in which it was clear he was following the conversation, de-escalating and calming down. Dispatch was listening to the conversation and relaying it to law enforcement, the lawsuit alleges. He also agreed to remove the magazine from the weapon and remove the chambered round.

“There was no indication that he was going to hurt himself or others,” the lawsuit states. “He agreed to come in the next day to meet with (his therapist) in a regular appointment. She even wrote down his appointment in her calendar. It was clear that the 45 minutes on the phone with (his therapist) had calmed him down and was productive.”

The lawsuit alleges that SWAT team members, including Stutesman, were aware of the tone of the conversation, arrived in a BearCat armored vehicle and escalated the situation by using a bullhorn to tell Babb to leave the house with his hands up.

Within minutes, Babb was dead, the lawsuit states, shot by Stutesman. Stutesman, according to the lawsuit, was “the only one who said that he saw Babb lift a rifle to his shoulder and aim it at Stutesman, who was standing behind the (BearCat’s) lid with his own rifle pointed at Babb.”

The lawsuit casts doubt on Stutesman’s statements, and the statements of another officer, specifically that he was “apparently” able to see through a fence, a column and a large leafy tree to see Babb armed with a rifle. It also casts doubt on the forensic evidence that anyone could have seen Babb from the BearCat, or that the weapon found on the porch was described as being “near the body” despite the body being inside of the house.

The lawsuit states a neighbor behind Babb’s house saw and photographed a uniformed Eugene police officer walk through his yard, climb the fence into Babb’s yard and enter the front of Babb’s property. “The timing of this entry is roughly around the time Stutesman shot Brian Babb. There is no report or information from the Eugene Police Department who this officer was and why he was entering the house,” the lawsuit states.

Babb’s family previously disputed that Babb had a rifle and aimed it at Stutesman. Their lawyer has offered the theory that a police officer jumped over the back fence of Babb’s home after the shooting and planted the rifle near Babb’s dead body before officers drove through a front fence in the BearCat to render aid and secure the scene. Eugene police have vehemently denied the allegation and provided evidence that that was not possible.

“Brian Babb was an American soldier who served our country,” Babb’s family attorney Andrew M. Stroth of Action Injury Law Group, LLC, based in Chicago said Friday. “From our perspective, the Eugene Police Department turned a standard well-being check into an aggressive military response with an armored BearCat vehicle and snipers that resulted in the tragic and unjustified death of Brian.”

A message to the attorney representing the city and its parties, Robert E. Franz Jr., was not returned.

After the shooting, former Lane County District Attorney Alex Gardner ruled that Stutesman acted in self-defense and wasn’t criminally liable for Babb’s killing.

Former Eugene Police Chief Pete Kerns announced at the conclusion of a review board that the sworn officers involved in the response followed department policies. The department did make a series of changes in department policy to improve the department’s response to individuals in a mental health crisis.

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© 2020 The Register-Guard