A Philadelphia law firm via a civil lawsuit filed against two Jonestown-based state police troopers has claimed that a video obtained by the law firm shows that a 2020 fatal shooting in Jackson Township involving those troopers was not justified.
In its second amended complaint (PDF) filed in federal court in Harrisburg last August, the law firm of Kline and Specter alleges, on behalf of Charity Thome’s estate, that the account of the events as described by state troopers Jay Splain and Matthew Haber on March 16, 2020, does not match the content on the video of the shooting the firm has obtained via a subpoena.
LebTown has not been able to procure a copy of the video or independently verify these claims. However, in a footnote to the complaint, Thome’s attorneys tell the court that “a CD containing a copy of this video is being hand-delivered to the Clerk of Court, where it will remain on file in this matter.” LebTown has requested a copy of the video, but a representative of the Clerk was unable to say on Jan. 4 how it could be obtained.
Generally, exhibits to court filings are public record.
Last Thursday, the New York Times published an investigative article claiming that trooper Splain has been involved in four fatal shootings during his 15-year career, including the Thome incident and another one that killed 40-year-old Andy Dzwonchyk of Jonestown, in November 2021.
The Times noted that “prosecutors and a grand jury concluded that Trooper Splain’s first three lethal shootings were justified, and an inquiry into the most recent one is ongoing.”
A spokesperson for attorney Thomas Kline said the firm declines to make any public comments concerning the lawsuit they filed on behalf of Derek Thome, who is the administrator of his aunt’s estate.
Lebanon County District Attorney Pier Hess Graf said that she has no comment about the Times article because the investigation in the Dzwonchyk incident is still ongoing and added that there is “never a timeframe regarding any investigation” conducted by her office.
The incident
In the early morning hours of March 16, 2020, police reported that Thome drove away from the scene of her former home in the 1700 block of Heilmandale Road, North Lebanon Township, after she attempted illegal entry, and was pursued, first by North Lebanon Township police and then by state police who joined the 10-mile chase.
It ended in the 500 block of King Street after Splain used a Precision Immobilization Maneuver (P.I.T.) to force Thome’s car off the road and into a field. A P.I.T. Maneuver is a pursuit tactic by which a pursuing car can force a fleeing car to turn sideways abruptly, causing the driver to lose control and stop.
What happens next is the basis for the Thome family’s civil lawsuit, which claims that “this was not a justified shooting and … constituted excessive, unnecessary force, in violation of Ms. Thome’s constitutional rights.”
In its suit, Thome’s estate claims inconsistencies between what officers Splain and Haber, who is the other defendant in the Thome lawsuit, said happened and what the audio and video footage actually shows.
The lawsuit alleges timeline discrepancies between what the troopers’ statements said happened and what is shown on the video and heard on the audio.
The Thome lawsuit indicates that Splain and Haber were interviewed by “police” and then later state in the complaint that, “Troopers Splain and Haber were also interviewed by the Pennsylvania State Police in the fallout of the shooting for administrative purposes and possible criminal charges.”
The lawsuit says, “According to Defendants, as stated in their interviews, they issued multiple verbal commands to Ms. Thome before fatally shooting her.”
The lawsuit says that Trooper Haber had reported in his interview that both he and Splain had given verbal commands such as “stop the vehicle” and “get out of the vehicle.” The lawsuit says that Splain also related in his interview that he was “yelling commands.”
The suit further claims, “When he was asked what commands he gave, Trooper Splain stated that he commanded Ms. Thome, ‘Stop, Stop, get out of the car, show me your hands.’”
According to the suit, an audio track on the video includes sirens, police radio communications, a vehicle collision, and a rapid succession of gunshots. The suit alleges that, “No verbal commands by Troopers Haber or Splain, or any officer for that matter, can be heard on the video (or audio). Moreover, the video thoroughly discredits Trooper Splain’s claims regarding the timeline and series of events that took place.”
The suit then says the audio and video evidence does not support Haber and Splain issuing any verbal commands, adding that “Trooper Splain stated during his interview that thirty seconds elapsed from when he got out of his vehicle to when he and Trooper Haber started shooting, which is not true, as shown on the video.”
Instead, the lawsuit says mere seconds elapsed from the time both Splain and Haber exited their vehicle and when Splain fired the first shot.
“As shown on the video, at most, nine seconds elapsed between when Trooper Splain performed the P.I.T. maneuver (i.e., before he and Trooper Haber got out of the car) and when he and Trooper Haber started shooting.
The suit further claims, based on timestamps imprinted on the video, that “only five seconds elapsed between when Trooper Splain got out of the car and when he and Trooper Haber started shooting“ and adds that “only three seconds elapsed between when Trooper Haber got out of the car and when he and Trooper Splain started shooting.“
“Once again, no verbal commands can be heard on the video,” the suit alleges.
The lawsuit goes on to say, “Trooper Splain … fired his weapon first, by his estimate, four or five times, and then again one or two times. Moreover, Trooper Haber … on his first official day on the job outside of his training, fired his weapon second, exactly twice. Ms. Thome died instantly (or almost instantly) from her gunshot wounds.”
Finally, the lawsuit claims that “an autopsy revealed that Ms. Thome was shot seven times,” that “during this incident, no police officers were injured in any way” and “by all accounts, Ms. Thome was unarmed when defendants decided to shoot her seven times and kill her.”
Haber and Splain have filed an answer to Thome’s second amended complaint, stating in part: “Ms. Thome ignored Troopers Splain and Haber’s verbal commands and looked right at Trooper Splain as she grabbed the gear shift and slammed down on the gas slamming into Officer Haase’s police cruiser. She did not take her foot off the gas and continued to accelerate upon ramming into Officer Haase’s police cruiser.”
The troopers’ answer generally maintains that Thome’s shooting was justified and that they did nothing wrong.
Allegations in Thome’s complaint are not considered evidence, and again, LebTown has not independently reviewed the video or otherwise been able to determine the veracity of these claims. Thome’s estate, just as every plaintiff in every civil lawsuit, must prove its allegations with sufficient evidence in order to recover monetary damages. Generally, defendants in civil lawsuits are not required to prove they acted properly.
Concerning the video that is part of the exhibits submitted for the Thome lawsuit, LebTown asked the district attorney if she watched the video. She was also asked if there is the possibility of reopening an investigation of the Thome matter given this latest event that the Times reported involved Splain.
“I can’t tell you with regard to their pleading what they are referring to,” said Hess Graf. “I haven’t read any of the pleadings and, frankly, I don’t intend to. Every video that was taken by law enforcement with regard to that incident, we have reviewed, yes. We are not looking to reopen what happened in that prior matter, I am fully confident in the findings that we rendered, in the press release that we issued, and the statements that I made.”
A day after announcing in late April 2020 that her investigation into the March 16 fatal shooting of Thome had cleared the four officers involved, Hess Graf spoke to LebTown about the investigation and the process that led to her finding.
Hess Graf said that during the pursuit Thome not only ran through stop signs and traffic controls at high speed, but “in the final minutes of the pursuit, there were moments when she was rolling her window down and throwing metal objects at the first pursuing car, which at that point was the State Police.” Hess Graf described some of those objects as “auto parts.”
Hess Graf told LebTown police attempts to disable Thome’s car with the P.I.T. maneuver was unsuccessful. The chase ended only when Thome lost control and skidded into a field along the unlit roadway.
Hess Graf then said that, “She then accelerated and rammed a North Lebanon Township police car with an officer inside. After she ignored commands to stop, state troopers fired into her car, fatally wounding her.”
When asked by LebTown if the Pennsylvania State Police would reopen an investigation into the Splain-involved shootings in Lebanon County given the discrepancies reported by the New York Times, PSP communications director Cpl. Brent Miller said in an email statement submitted on Tuesday that:
“In each case, both criminal and internal investigations were conducted. The Pennsylvania State Police (PSP) does not intend to reopen any of these investigations.”
When told that various media reports indicate that Splain was on administrative leave following the Dzwonchyk incident last November while others state he is on desk assignment, Miller responded:
“Both “administrative leave” and “desk assignment” are inaccurate. Trooper Jay Splain is currently on administrative duty. Administrative duty is a modified duty assignment where a member performs work which may be outside of their normally assigned duties, functions, and responsibilities. It is standard policy to assign a member who is involved in an officer-involved shooting/serious police incident to administrative duties while the incident is under investigation.”
On Monday, following a request last week for comment on the Times article that says Splain has been involved in four shootings, Miller also said in an email statement:
“Every officer involved shooting involving a Pennsylvania State Police Trooper is thoroughly investigated criminally and administratively, and the decision as to whether criminal charges will be brought is solely within the discretion of the independent elected District Attorney of the relevant jurisdiction. Other than the incident on November 7, for which the investigation is still open, with respect to each of the shootings identified an investigation was completed and the decision that Trooper Splain’s actions were legally justified under Pennsylvania Law was made by the District Attorney and or grand jury.”
Spotlight PA has reported an unintroduced bill by state Sen. Art Haywood (D-Montgomery) that would require that the state Attorney General be given new powers to investigate all police killings, which would remove that authority out of the hands of district attorneys.
American Civil Liberties Union legal director Witold “Vic” J. Walczak said that, while the legislator’s bill would be a good start to bring about reform, more needs to be done.
He cited the need for greater transparency and to help ensure independent review of incidents outside of the “buddy investigating a buddy” system that currently prevails in law enforcement agencies across Pennsylvania.
“There’s a reason that it is important for police departments to publish information about complaints about the use of force by various officers, about complaints about officers,” said Walczak. “One incident may not trigger any kind of alert but if you have an officer who has eight complaints, or three or four deadly shootings, then you need to look at that employee in a different light.
“As the Times story points out, most officers go their entire careers without having a deadly force incident and here you have a single officer with four of them, all of which raise alarms,” said Walczak. “Every single one of those four shootings (involving Splain) raises serious concerns.”
Hess Graf said that while she understands why attorneys provide legal representation to defendants in criminal matters and in civil suits like the one filed in the Thome lawsuit, she added she’s never worked as one nor will she ever.
”While I have not done the work of that Philadelphia law firm that represents the family, I understand why all these people exist,” said Hess Graf. “It’s their job to take facts and to take evidence and try to twist it and present it in a certain fashion. That’s their job. We see it in criminal court all the time. There’s nothing more infuriating than a defense attorney’s closing argument in just about every single trial I’ve ever done — and that’s all this (Thome civil lawsuit) is. But we did a solid, thorough investigation in the last shooting and I stand behind my team and the findings we rendered — not the state police, what we rendered.”
Chris Coyle contributed reporting to this article.
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