Still waiting on St. Augustine Record to write a story quoting Judge Brian J. Davis, with a link to his 22-page decision, issued on March 30, 2018 (Good Friday/Passover).
Apparently, the St. Augustine Record still has no PACER.gov account.
Or is it waiting for "spin" from Sheriff DAVID SHOAR, who changed his name from "HOAR" in 1994?
You tell me. For comparison, I've appended The St. Augustine Record's belated second story, which finally quotes the summary judgment order and gives a link to the landmark decision by Judge Brian J. Davis.
Here's The New York Times story:
READ THE FINDINGS ...
Banks’ suit against FDLE agent in O’Connell case dismissed
By Jared Keever
Posted Apr 4, 2018 at 2:01 AM
Updated Apr 5, 2018 at 6:48 AM
While a federal judge’s recent ruling in a civil case, filed by a St. Johns County sheriff’s deputy against the Florida Department of Law Enforcement agent who had investigated the shooting death of the deputy’s girlfriend, didn’t shed any more light on what happened the night the 24-year-old mother died, it did close one of the remaining unfinished chapters in the years-long Michelle O’Connell controversy by answering the question as to whether FDLE Agent Rusty Rodgers had violated the rights of Deputy Jeremy Banks during his investigation.
In an order filed Friday, U.S. District Court Judge Brian Davis, of the Middle District of Florida, granted Rodgers’ motion for final summary judgement in the case that Banks originally filed in circuit court in St. Johns County in November of 2013 and has been working its way through the federal court since 2014.
Banks had alleged that Rodgers, among other things, had provided false information to obtain search warrants and unlawfully detained Banks at one point during the investigation into O’Connell’s death.
O’Connell was found the evening of Sept. 2, 2010, in Banks’ home suffering from a gunshot wound through her mouth.
Rodgers was assigned to the case by FDLE after O’Connell’s family raised concerns about the original investigation — conducted by the St. Johns County Sheriff’s Office — that ultimately concluded the death was a suicide.
The gun that killed O’Connell was Banks’ service weapon, and her family has said that she wouldn’t have harmed herself. Banks, who placed the 911 call the night she died saying that she shot herself, maintains his innocence and is still a deputy with the Sheriff’s Office.
The case, which has since been reviewed by multiple medical examiners, remains classified as a suicide, and at least two special prosecutors have looked at it and found there is not enough evidence to bring criminal charges against Banks.
O’Connell’s death has also been the subject of two lengthy articles from The New York Times and a PBS Frontline documentary.
READ THE FINDINGS ...
The most recent New York Times story, published in June, painted St. Johns County Sheriff David Shoar as having waged a public campaign to discredit Rodgers and his investigation into the death.
Davis’ order hinged largely on whether or not Rodgers was entitled to qualified immunity which would protect him from a lawsuit for his actions during the investigation. Proving that he wasn’t so entitled was a tall task, Davis pointed out, citing a quote from case law that such immunity protects “all but the plainly incompetent or those who knowingly violate the law.”
What Davis ultimately found was that, while Rodgers certainly showed some bias in the handling of his investigation, given what he knew at the time he detained Banks on April 14, 2011, and secured search warrants in the case, the FDLE investigator was acting within his duties and had probable cause to believe that a homicide may have been committed.
Some of what he is believed to have known was listed by Davis in a lengthy footnote on page 10 of the order, and includes that Banks and O’Connell had been fighting the night she died, that she was packing to leave him, that two neighbors reported hearing a woman scream “help” followed by two gunshots, that an expert had determined that homicide was more probable than suicide, and that that expert’s opinion had persuaded a medical examiner to consider changing the manner of death from suicide to homicide.
“Even in the light most favorable to the Deputy Banks, the record, considered in its entirety, reflects a thoughtful examination of difficult facts and circumstances inconsistent with the invidious bias Deputy Banks would have the Court find,” Davis wrote. “Certainly Agent Rodgers’ investigation was imperfect, but that does not render his actions unconstitutional. Moreover, the presence of any bias does not undercut the clear existence of probable cause in this case.”
“While Deputy Banks has sufficiently convinced the Court of Agent Rodgers’ bias, neither the arguments nor questions of fact considered in their totality persuade the Court that there has been a reckless disregard for the truth or that there is operative an animus so invidious that the truth cannot be found,” the order continues. “Rather, the Court finds that a reasonable officer from the facts known at the time of Deputy Banks’ detention would have probable cause for homicide.”
Rodgers’ attorney William Sheppard told The Record on Tuesday that Davis’ ruling was what he anticipated because it was in keeping with the law.
“We are pleased,” he said, “not surprised in the least.”
What he didn’t understand, he said, was the reason for the lawsuit in the first place.
“I don’t think the motivation was money,” he said. “I am not sure what the motivation was.”
He brushed off the judge’s mention of “bias” in his client’s investigation and said he expects law enforcement officers do carry bias in their work.
“If you don’t suspect people you probably aren’t going to convict them, are you?” he said.
The investigation Sheppard took issue with was the initial one done by the Sheriff’s Office.
“It wasn’t an investigation, it was a fumble,” Sheppard said. “Exclamation point.”
Davis’ Friday order also denied Banks’ attorney Mac McLeod’s motion, filed in March 2017, to strike Rodgers’ pleadings and defenses and enter a default judgement against Rodgers.
It was the denial of that motion, which alleges that Rodgers perjured himself in the proceedings, that McLeod said Tuesday was as disappointing as the summary judgement dismissing the case.
“That that went unsanctioned is what bothered us,” he said.
As for motivation, McLeod maintains that Rodgers lied in pursuing prosecution of Banks, that doing so was “purposeful,” and that Banks’ life was “turned upside down” by Rodgers’ conduct. Had the decision gone the other way, he said, Banks would have been entitled to damages paid from a state officers’ fund.
“We’re obviously extremely disappointed,” McLeod said. “We believe there were disputed issues and [the case] should have proceeded to a jury.”
They have 30 days to file an appeal, McLeod said, adding that he and others will be reviewing that possibility in the next five to 10 days.