The Washington Post
March 25, 2003 Tuesday
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Final Edition
Man Guilty in Confrontation With Police;
Fairfax Judge Called Officers' Entry Illegal in 2000
Incident, Then Reversed Himself
BYLINE: Tom Jackman, Washington Post Staff Writer
SECTION: METRO; Pg. B07
LENGTH: 797 words
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.