By Joe Johnson
The widow of a man who was fatally shot over two years ago by Athens-Clarke police officers is seeking $10 million in a wrongful-death lawsuit that is pending in federal court.
The civil action arose from the “unlawful use of deadly force” against 34-year-old Thomas Wayne Swinford on March 8, 2019, according to the complaint filed by Jayné Swinford, who has since remarried.
The lawsuit was initially filed in Clarke County State Court in July, but was subsequently transferred to U.S. District Court for the Middle District of Georgia.
The lawsuit alleges that police knew that Swinford was suicidal and that he posed no immediate threat to officers who were positioned between 102 to 165 feet away from him while posted behind police cars, trees and ballistic shields.
Though police had equipment and tactics to bring the situation to a peaceful conclusion, such as using less-lethal munitions and deployment of units that specialize in dealing with barricaded subjects, they were never used, the federal complaint alleges.
The lawsuit names as defendants the Athens-Clarke County government, ACCPD Police Chief Cleveland Spruill, and seven officers who shot at Swinford while police had him barricaded in an empty parking lot.
When asked for comment from Spruill, ACCPD’s Public Information Officer Lt. Shaun Barnett said, “ACCPD has no comment on matters involving pending litigation.”
In correspondence with the Georgia Bureau of Investigation agent who conducted an independent examination of the shooting, then-District Attorney Ken Mauldin said, “After careful review of the entire GBI report and investigation…it is my opinion there was no criminal wrongdoing…”
Police said Swinford was shot because he approached officers while brandishing what was later found to be an airsoft gun that resembled an actual firearm.
However, the lawsuit claims that police knew that Swinford was suicidal and they did not follow policies that could have led to a non-violent conclusion of the incident.
Just three minutes before opening fire, “in a gesture wholly consistent with the ‘suicide by police’ basis for the entire incident, ACCPD observed Thomas kissing photographs of his family goodbye,” the lawsuit claims.
The lawsuit states that “as soon as seven different ACCPD officers started shooting at Thomas with the intention of killing him, he let go of the BB gun and collapsed face-first in the parking lot.”
The complaint continues: “Defendants continued to fire upon Thomas as he was flat on his face in the parking lot; and the BB gun was released from his hand and located approximately 6-8 feet from his reach.”
A report of an autopsy performed at the GBI’s Crime Lab indicates that Swinford was struck by six gunshots, including two in the back.
In a press conference two days after the shooting Spruill said, “We take no joy in having had to take Mr. Swinford’s life. It’s part of our job...When a person loses their life, whether it’s justified or not, we've somewhat failed at our mission.”
He said, “Multiple officers that were on scene at this point feared for their lives.”
The police chief said he called for the press conference “to talk about the facts” of the Swinford shooting, and during the press conference officer body-worn camera footage was played for reporters that showed how the incident unfolded from various vantage points.
However, the lawsuit called the video presentation “an incomplete compilation” of bodycam videos “purportedly to give you a better understanding of exactly what was occurring when the shooting took place.”
The lawsuit notes that it was impossible to independently fact-check Spruill’s explanation of events because the state Open Records Act exempts from public disclosure information about active investigations, which the Swinford shooting was due to ACCPD conducting an internal affairs investigation to determine potential violations of departmental policies, and the GBI examining the shooting to see if officers violated any laws.
The complaint cites Spruill’s own words from his LinkedIn profile in which he describes himself as being “uniquely qualified and experienced at building high performing...procedurally just police departments...officers how to deescalate encounters with armed individuals who are in mental crisis.”
Officers on the specially-trained Strategic Response Team (SRT) could have been deployed to try to deescalate the situation, but the unit was never dispatched to three different police barricades of Swinford that occurred prior to him being shot, the lawsuit claims.
“The issues invoked by the Swinford case are bigger than all of us because they relate to access to the truth, transparency in governance and policing, the use of deadly force by police, and the controversial legal issue related to the application of qualified immunity, said Jayné Swinford’s attorney, John Hollis Baker.
“My client contends that matters related to police shooting incidents such as the one involving Thomas Swinford, her former husband and father to her small children, must be comprehensively and truthfully disclosed to the victim’s family, the general public, and thoroughly investigated, without exception,” the attorney said. "If they are not, opportunities for accountability and informed discussions relating to policing practices are wasted.”
Incidents which led to Swinford being killed, according to a police incident report, began shortly before 3 p.m. March 8, when Swinford’s father reported that his son had stolen his wallet and his mother's 2014 Kia Sorento from their home on Beachum Drive.
Wayne Swinford reportedly told police that his son “wanted to buy drugs, but he would not take him to get some.”
Swinford’s parents reported to police that their son had been “behaving erratically,” Spruill said during the post-shooting press conference.
The lawsuit claims that even though Swinford had not committed any crimes, the police officers who initially responded to the Beachum Drive residence on Wayne Swinford’s report that his son “is on drugs and talked about killing himself” surrounded the home to create a barricaded gunman situation
Even prior to the day of the shooting, police were “well aware of the suicide threat posed by Swinford due to three previous suicide threat incidents involving Swinford, according to the federal complaint.
On the day of the shooting, not only Swinford’s father reported him as being suicidal, but Jayné Swinford reported to police that her husband “had been calling her repeatedly, threatening suicide or death by cop,” the lawsuit claims.
Additionally, the complaint alleges, “ACCPD knew that he had gone ‘live’ on Facebook earlier that day announcing his intention to die that day.”
One of the first responding officers told a dispatcher that Swinford was in possession of a handgun, at which time police formed a perimeter for “the alleged barricaded gunman situation,” according to the lawsuit.
The lawsuit notes that even though SRT members were provided with “advanced training and special equipment to respond to incidents that are beyond the scope of the average police officer or investigator, and “the most common type of incident requiring the SRT’s response has been a barricaded gunman situation, the police department “deployed units without the specialized training and tools required for the Swinford situation.
After officers created a barricade around the Beachum Drive residence, “without any outstanding warrants or probable cause to suspect the commission of a crime,” officers told Swinford and his parents that they were “clearing the area,” according to the lawsuit.
About an hour and a half after the initial suicide threat call, police reportedly received a report that Swinford had taken his mother’s SUV without permission to which police issued a lookout that advised Swinford was under the influence of drugs and armed with a firearm.
When he returned with the vehicle a few minutes later, according to the lawsuit, officers again formed a perimeter, creating a second barricaded gunman situation that required the SRT, which again was not deployed, the lawsuit states.
Footage from officers’ body-worn cameras show officers brandishing rifles and handguns while taking cover behind police cars and trees and yelling for Swinford to drop the gun
According to the civil complaint, a few minutes later Swinford drove through the perimeter and in the process of fleeing ran over spike strips that flattened two of the SUV’s tires, at which time Swinford pulled the disabled vehicle into the parking lot of Holy Cross Luthran Church on West Lake Drive and parked it.
Then, for the third time, police “barricaded Thomas by surrounding him with patrol cars with emergency lights activated; and, showing deadly force by pointing their guns directly at him,” the lawsuit states.
Once again ignoring policy that the situation required deployment of the SRT, “at least 15 ACCPD non-SRT Units swarmed to the scene, taking cover behind their vehicles, trees or shields while pointing rifles, shotguns and handguns at Thomas,” the lawsuit claims.
According to Jayné Swinford’s complaint, police spent about 20 minutes using a loudspeaker system to put down his “gun” as he paced near the SUV.
“Thomas informed the ACCPD that he would ‘come out’ if he were permitted to speak to his wife; but, ACCPD purposefully prevented him from doing so by directing (his wife) not to speak to Thomas despite his attempts to call her multiple times,” the lawsuit alleges.
“My client contends that matters related to police shooting incidents such as the one involving Thomas Swinford, her former husband and father to her small children, must be comprehensively and truthfully disclosed to the victim’s family, the general public, and thoroughly investigated, without exception,” Baker said. “If they are not, opportunities for accountability and informed discussions relating to policing practices are wasted. In particular, the applicable rules of law relating to such matters in Georgia, as they presently exist, may provide for results that defy justice, as well as common sense. First, a municipal government is allowed to deny open records requests filed by a victim’s family, or anyone else, while an allegedly independent investigation is conducted by the GBI and District Attorney’s office. Neither the GBI nor a District Attorney is required to complete any such investigation by any deadline; or, even alert a victim’s family as to the results of any such investigation. That may be problematic in certain circumstances and defy common sense, given that there are hard and fast deadlines for filing claims related to injuries caused by violations of constitutional rights in police shooting cases, or otherwise. In other words, hypothetically, if elected or appointed government officials formed an intention to obfuscate acts of wrongdoing to avoid exposure to liability, they could drag out an investigation in furtherance of sweeping a case “under the rug” by design and/or keep the fact that the investigation had been completed to themselves. To state the obvious, any such “loophole” in applicable law and policies that would enable or allow for that to happen in any case is a problem.
According to the allegations of the complaint in the Swinford case, the ACCPD was on notice that Thomas Swinford struggled with addiction and mental health issues, and had made multiple threats of suicide. In particular, the complaint alleges that before ACCPD responded to the incident, they were
apprised of Thomas’ express intention to commit “suicide by cop” twice.
“Thomas’ suicide threat was the entire reason the police were involved in the first place because the Swinford family trusted them and needed them to help protect his life, if at all possible, rather than end it by resorting to deadly force in lieu of less-intrusive means to gain control such as those referenced in the complaint,” such as beanbags, 40mm sponge rounds, Tasers, and deployment of a crisis intervention team, or the SRT, Baker said.
The lawsuit alleges that each of the three barricaded gunman scenarios involving Swinford “separately and automatically ‘required’ deployment of the Strategic Response Team to de-escalated encounters with armed individuals who are in mental crisis in an attempt to save their lives.”
The attorney said that police officers should be held liable for actions that have deadly consequences.
“At present there is a significant disagreement amongst our federal courts as to the propriety and frequency that ‘qualified immunity’ should be used to throw out cases that would otherwise be heard by juries,” Baker said. “Since the issue is literally one of life and death, my client submits that it should be addressed with the entire truth at hand for each particular case, but that would not be possible if, for instance, a case was dismissed on qualified immunity grounds before the facts of the case are revealed in discovery. which is precisely the scenario my client is now facing.”
Baker pointed to U.S. Supreme Court Justice Sonia Sotomayor who has opined that courts should consider evidence in each case any measures that were available to the police that fall short of deadly force, something that courts are currently not required to consider in the U.S. Court of Appeals for the 11th Judicial Circuit, which includes cases in Georgia.
“If the police are actually trained, and equipped, to deploy less-intrusive and de-escalation measures whenever possible, why shouldn’t a conscious refusal to employ their training and use their equipment be relevant?” Baker said.
“Finally, in terms of the legal and social implications of the determination of the qualified immunity issue and why the issue is bigger than all of us, Justice Sotomayor said it better than my client or I ever could: “As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases...Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment. The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
The lawsuit seeks a jury trial and asks for $10 million in damages, an amount based on the full value of the life of Swinford who, according to mortality tables, was expected to have lived another 40 or more years, plus the loss of income to his family caused by his death, and “special and general damages.”