E-Filed

04/15/2019 04:35:08 PM
Honorable D. Scott Mitchell
Clerk of the Court

IN THE COURT OF CRIMINAL APPEALS OF ALABAMA

WILLIAM BENJAMIN DARBY,

PETITIONER

vs . CASE NO,

STATE OF ALABAMA and

HONORABLE DONNA PATE

RESPPNDENTS

PETITION FOR WRIT OF MANDAMUS

ROBERT B. TUTEN
Attorney for Petitioner

Page 1 of 22
 FROM THE MADISON COUNTY CIRCUIT COURT

CASE NO.: CC18-3238 DSP

PETITION FOR WRIT OF MANDAMUS

COMES NOW the Petitioner, William Benjamin Darby, by

and through his undersigned attorney record, and petitions

this Honorable Court for a Writ of mandamus to Circuit

Judge Donna Pate of the Madison County Circuit Court. In

support thereof, the Petitioner states as follows:

Page 2 of 22
 I. TABLE OF AUTHORITIES

Ala. Code §13A-3-23 (1975) 2, 6 and 7

Garcynzski v. Palm Beach Sheriff's Office,

573 F.3d 1158 (11th Cir. 2009)

Montoute v. Carr,

114 F.3d 181 (11th Cir. 1997)

Page 3 of 22
 II . VERIFIED STATEMENT OF FACTS

1. On August 3, 2018, Mr. Darby was arrested pursuant to a

grand Jury indictment for murder. A copy of the indictment

is attached and incorporated herein as EXHIBIT A.

2. Pursuant to Ala. Code §13A-3-23, Mr. Darby raised the

issue of self defense and immunity in a Motion for Immunity

filed on January 19, 2019. A copy of the Motion is

attached and incorporated herein by reference as EXHIBIT B.

3. The facts of the matter, presented at the Immunity

Hearing, are that the Petitioner, an on duty patrol officer

with the Huntsville Police Department, was working a patrol

shift on April 3, 2018. A call came in to the Huntsville-

Page 4 of 22
 Madison County 911 Center in which the caller was

threatening suicide. The caller stated that he had a gun,

that he was about to "blow his brains out", and that the

front door of his residence was open. Three officers

responded to the call including the Petitioner, Officer

William Benjamin Darby. Officer Pegues and Officer Beckles

arrived on the scene before the Petitioner. They advised

HPD Dispatch of their arrival on the scene. All three

officers parked their patrol cars several houses away from

the subject house and approached the house on foot.

Upon arrival. Petitioner, Officer Darby was expecting

officers to "set up perimeter" as was the accepted

procedure for handling an armed subject call. However,

upon arrival. Petitioner did not immediately see the other

two officers. As he ran towards the house, the Petitioner

realized that Officer Pegues had failed to follow procedure

and training and had entered the house. Officer Pegues had

located the subject armed with a gun, sitting on a sofa

across the room to the right of the door, with a gun

pointed to his own head. Officer Pegues was having a

verbal exchange with the subject. Petitioner noted

Page 5 of 22
 that Officer Pegues had her gun drawn, but had the weapon

in the ready down or "sul" position and not aimed at the

subject. All three officers testified that Officer

Pegues did not have cover or concealment and had confronted

an armed subject with a gun in his hand, face to face.

Petitioner observed Officer Beckles standing just

outside the doorway to the house.^ Officer Beckles had his

gun drawn but also in the ready down or “sul" position.

Officer Beckles did not have a clear view of the subject.

All three officers were wearing body cameras. All

three body cameras were operating and recorded the incident

in question.

Dr. Pete Blair, a criminal justice college professor

from Texas testified at the immunity hearing. Dr. Blair

explained that he had obtained a Federal grant to study

police officer deaths from being shot in the line of duty.

The study focused on the action - reaction time between

armed subject and police officer. Dr. Blair explained that

Page 6 of 22
his study revealed that a police officer's reaction time is

much slower than a suspect's action.

Therefore an officer, even with their own weapon drawn,

can not react quickly enough to defend themselves if an

armed suspect suddenly decides to shoot the officer. This

is the case even if the armed subject's gun is not

pointed at the officer.

Officer Ron Keiker, a police academy officer survival

instructor, testified at the immunity hearing. Officer

Keiker explained that understanding action - reaction time

changed the way police officers are trained. Officer

Keiker explained that it takes an armed subject 4/lOths of

a second to shoot an officer while it takes the average

officer 8/lOths of a second, or twice as long to react to

the armed subject shooting a police officer. Consequently,

a police officer can not react quickly enough to avoid

being shot if an armed subject suddenly decides to shoot an

officer.

Page 7 of 22
 According to Mr. Keiker, the current state of police

training is that an armed subject poses an immediate and

imminent threat to police even if the subject's gun is not

pointed at the police.

FBI Special Agent Curtis Parker testified at the

immunity hearing. Agent Parker explained that he teaches

an Officer Survival Tactics School for local law

enforcement every October on Redstone Arsenal, Alabama.

Agent Parker explained that the petitioner, Officer Darby,

attended his school in October of 2017, just six

months before this incident. Agent Parker reiterated

previous testimony by Dr. Blair and Officer Keiker

regarding action - reaction time. Agent Parker explained

that his school involves scenario training and that one of

the scenarios used was an officer confronting a subject

with a gun. Agent parker explained that an armed subject

poses an imminent threat to police officers. Officers can

not react quickly enough to defend themselves should an

armed subject suddenly decide to shoot an officer. Agent

Parker further explained that it makes no difference

whether an officer has his gun pointed at the armed

Page 8 of 22
 subject or not. Agent Parker further explained that it

makes no difference where the armed subject is pointing

his gun. If an armed subject has a gun in his hand then he

poses an immediate and imminent threat to police and can

suddenly shoot on officer before the officer can react to

defend himself.

The Petitioner, Officer Darby, also testified at the

immunity hearing. The Petitioner explained that he arrived

on the scene expecting to find the other officers setting

up a perimeter. Officers on the scene had advised HPD

Dispatch over the radio that there was a subject with a gun

inside the house. Petitioner heard the radio traffic.

When he located the other two officers. Officer Beckles was

standing on the front stoop of the house just outside the

front door. He had his weapon drawn, in one hand against

his mid section pointed toward the ground. The Petitioner

observed Officer Pegues standing inside the house without

cover or concealment. She had her pistol in one hand near

her midsection pointed toward the floor. Officer Pegues

was having a verbal exchange with someone in the house.

Petitioner could not see the subject initially. As

Page 9 of 22
 he approached the doorway, he noticed that Officer Pegues

appeared to have stalled in her communication with the

subject and her breathing appeared to to be labored.

Officer Beckles appeared to be coaching Officer Pegues as

to what to do next. Officer Beckles, in a low voice, said

to Officer Pegues "put the gun down". Petitioner

perceived that Officer Pegues was beginning to panic. She

was breathing heavily and not communicating effectively.

Officer Pegues had disregarded her own safety, had failed

to follow training and officer survival protocol. Officer

Pegues then began repeating in a loud voice to the subject,

"Put the gun down. Put the gun down".

To the Petitioner, Officer Pegues appeared to be under

tremendous stress. He told her to point her weapon at the

subject because he could kill her. Briefly, Officer Pegues

raised her weapon but immediately lowered it to its

previous down position.

The Petitioner, feared for the life of Officer Pegues

and realized that by confronting an armed subject face to

face, without cover or concealment, her life was in

Page 10 of 22
 imminent peril should the subject suddenly decide to shoot

at police. Because the petitioner could not see the armed

subject, he decided his only option was to enter the house.

Petitioner observed the subject armed with a gun pointed to

the side of his own head. Petitioner realized that the

armed subject had the means, ability and opportunity to

shoot the officers before they could react to defend

themselves.

The Petitioner, in a clear and loud voice ordered the

subject to drop the gun. The subject refused and shook his

head from side to side in the negative. The Petitioner

again ordered the armed subject to drop the gun stating

"I'm not going to tell you again". The armed subject

shrugged his shoulders and refused to drop the gun. The

Petitioner, feeling he had no other alternative, fired a

single slug from a shotgun killing the subject.

In her testimony at the Immunity Hearing, Officer

Pegues could not explain the HPD standard operating

procedure for responding to a call of an armed subject

Officer Pegues testified that a Huntsville Police

Page 11 of 22
 Department Shooting Review Board had cleared Petitioner

and found that his actions were within Department policy.

She further testified that the Board recommended that she

undergo remedial training in threat assessment and officer

survival. Nonetheless, Officer Pegues refused to admit

that her life had been in danger or that she had violated

department training and policy regarding response to

an armed subject. However, she did admit that she zoned

out during the confrontation. She believed that she had

her firearm trained on the armed subject when in fact she

did not. She did not realize this until she viewed her

body camera video during the Shooting Review Board hearing.

Officer Beckles testified that shooting the armed

subject was "inevitable". As the Petitioner fired his

shotgun, Officer Beckles was placing his finger on the

trigger of his own weapon preparing to shoot too.

One should realize that these events occurred in a

matter of seconds. The Petitioner's mental state and

reasonableness should be judged not as an average, ordinary

person, but as a highly trained police officer with

Page 12 of 22
person, but as a highly trained police officer with

specialized threat assessment and officer survival

training, skills and experience.

The Honorable Court Denied the Petition. The Court's

Order is attached hereto as EXHIBIT C.

A transcript of the testimony summarized above can be

obtained from the court reporter.

 STATE OF ALABAMA )

COUNTY OF MADISON )

I, the undersigned, a Notary Public in and for said

County and State, do hereby certify that Robert B. Tuten,

whose name is signed to the foregoing, and who is known to

me, acknowledged before me on this day that, being informed

of the contents of the said document, that the said

contents are true and correct to the best of his knowledge

and belief.

Sworn to and subscribed before me this 15th day of

April, 2019.

Page 14 of 22
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II. STATEMENT OF THE ISSUE PRESENTED

Whether the Respondent committed clear abuse of discretion

in denying the Petitioner's request for immunity pursuant

to Ala. Code §13A-3-23 (1975).

Page 15 of 22
 III. STATEMENT OF RELIEF SOUGHT

Petitioner seeks an Order directing the Respondent to enter

ap Order granting immunity pursuant to Ala. Code §13A 3-23

(1975) as the Petitioner was acting in self defense and the

defense of others.

IV. WHY THE WRIT SHOULD ISSUE

A Writ of Mandamus should issue in this case because under

Ala. Code §13A-3-23 (1875), the Petitioner is entitled to

immunity if he proves, by a preponderance of the evidence,

that he reasonably acted in self defense. The testimony

presented to the Court by three independent sources

involved in research and police training showed how

Page 16 of 22
 action / reaction times make confronting an armed subject

places an officer in imminent danger. Even though the

armed subject never pointed his gun at officers, had the

armed subject suddenly decided to shoot an officer,

officers could not react in time to defend themselves.

There are no State precedent setting cases on point.

However, the 11th Circuit Court of Appeals has addressed

the issue in civil cases. The black letter law has equal

application to the case at hand.

In 1997, the 11th Circuit considered the case of Montoute

V. Carr, 114 F.3d 181 (11th Cir. 1997) and more recently in

2009 in the case of Garcynzske v. Palm Beach Sheriff'’s

Office, 573 F.3d 1158 (11th Cir. 2009)The Federal court

considered whether a police officer has to wait for an

armed subject to point his weapon at police before using

deadly force. In both Montoute and Garcynzski, armed

subjects had ignored orders by police to drop their

weapons. As here, Garcynzski was armed and threatening

suicide. In both cases, the 11th Circuit ruled that where

orders by police to drop a weapon go unheeded, officers are

Page 17 of 22
 not required to wait until the armed subject points his gun

at officers to use deadly force. In each of those cases,

the officers' use of deadly force was objectively

reasonable.

A Writ of Mandamus should be issued in this case because

the Petitioner raised the issue of immunity under Ala, Code

§13A-3“23 (1975). The Petitioner provided the Court with

ample evidence demonstrating that self defense was

reasonable under the circumstances. Judging the

Petitioner's actions from the standpoint of a reasonable

police officer, the Petitioner met his burden of proof and

proved he is entitled to immunity as a matter of law by a

preponderance of the evidence.

Wherefore the Petitioner respectfully requests that this

honorable Court grant his Petition for Writ of Mandamus and

enter an Order directing the respondent to grant the

Petitioner's request for immunity from prosecution pursuant

to Ala. Code §13A-3-23 (1975).

Page 18 of 22
Respectfully submitted this 15th day of April, 2019.

/s/ ROBERT B. TUTEN

Robert B. Tuten (ASB-4036-E56-R)

Attorney for Petitioner

Page 19 of 22
 CERTIFICATE of SERVICE

I hereby certify that i have served a copy of the foregoing

upon the following parties:

Honorable Judge Donna Pate

Madison County Circuit court

100 Northside Square 8th Floor

Huntsville, AL 35801

Honorable Tim Gann

Honorable Tim Douthit

Madison County District Attorney's Office

100 Northside Square

Huntsville, AL 35801

Debra Kizer, Clerk

Madison County Circuit Court Clerk

100 Northside Square

Page 20 of 22
Huntsville, AL 35801

by e-filing, hand delivery or U.S. mail, properly addressed

postage prepaid, this 15th day of April, 2019.

/s/ ROBERT B. TUTEN

ROBERT B. TUTEN

Page 21 of 22
 INDEX TO EXHIBITS

1. EXHIBIT A - Copy of the Indictment

2. EXHIBIT B - Copy of Petitioner's Motion for Immunity

pursuant to Ala. Code §13A-3-23

3. EXHIBIT C - Court Order Denying Immunity

Page 22 of 22
 DOCLfMENT I

EXHIBIT
C C / f - 3 ^ 3 5 ’P ^ P
T
(STONo Arrest DateijjZiHL I Csse \o. G.J. No. 290

A TRUE BILL, presented to the judge Presiding in open Qpurt by Ihe Foreman of this Grand Jury, in the
presence of A7 other members of the Grand Jury, this jDTiL day of July A D. 20J 8, and filed in open
Court this date.

A f \ rj . ... A r , f A iiiiim u iS
^ GVand JuryFdrcman ( 'A w W ir n ic CircuidCo^if Date ~~
Madison County, Alabinna, [
\ 1 IJ'** JudicialCircuit [

THE STATE OF ALABAIVIA

Vs.
WILLIAM DARBY

CHARGES;
L Murder

---------------------------- l . a » . ' -7 (/
It is ordered and adjudged by the Court that bail be fixed at Done this

A y ■Judge Presiding

CIRCUIT COURT
JULY 20)8
TERM

Robert L. Broussard
District Attorney
Twenty-Third Judicial Circuit
 DOCUMENT

SID No Arrejt Datt: Q/Q/Q I Case N’o. GJ.No, 290

Count 1
MURDER - REGULAR
The Grand Jury of said County charge, that before the finding of this Indictment,
WILLIAM DARBY, whose name is unknown to the Grand Juiy other than as stated, did
intentionally.cause the death of another person, to-wit: Jeffrey Parker, by shooting him
with a handgun, in violation of Section 13A-6-2 of the CODE OF ALABAMA, against
the peace and dignity of the State of Alabama.
 DOCUMENT 1

Witnesses:

Investigator
Joshua Vogel
HPD P. O. Box 2085
Huntsville, AL 35804

Officer
Dewayne Mccarver
HPD P. O. Box 2085
Huntsville, AL 35804

Officer
Joe Debore
HPD P. O. Box 2085
Huntsville, AL 35804
 DOCUMENT I

GRAND JURY NUMBER 290

WILLIAM DARBY
(DEFENDANT)

Date of Birth: ^ ^ |/
Race: Caucasian
Sex: M
SSN: ^ H >

Address:

Hartselle AL 35640
 DOCUMENT 1

WRIT OF ARRBST GRAND JORY INDICTMENT

STATE OF AliABAKA MADISON COONTY CIRCUIT COURT
AGBHCY NUMBER: 201808262 WARRANT NUMBER: GJ 2018 000290.08
OTHER CASE NHRj .
TO ANY LAWFUL OFFICER OF THE STATE OF ALABAMA:
YOU.ARB HEREBY COMMANDED TO ARREST WILLIAM DARBY AND BRINS
HIM/HER BEFORE THB CIRCUIT COURT OF MADISON COUNTY TO ANSWER THE STATE
OP ALABAMA ON A CHARGE(S) OP:
_ MURDER CLASS: A TYPE: F COUNTS: 001
AND HAVE YOU THEN AND THERE THIS WRIT WITH YOUR RETURN THEREON.
YOU WILL RECEIVE UNTO YOUR CUSTODY AND DETAIN HIM/HER UNTIL THE
_______ DAY O F ______________, OR UNTIL LEGALLY DISCHARGED.
DATED THIS 03 DAY OF AUGUST, 2018.
BOND SET AT: (1} $20,000,00 BOND TYPE:

CIRCUIT
gUPOg/CSgaK/MACISTRATK OF*Cl -COURT
CHARGES: MURDER 13A-006-002 F FELONY
NAME: will : ALIAS:
ADDRESS: ALIAS!
ADDRESS:
CITY: STATE: AL
?5 5 nK: ^ § ^ 8 888*^0000 EXT: 000
BWPLQVVKNT:
DOB: ■i||Vi RACE: W SEX; M HAIR:
EYE: ^^^E I T . O'OQT
. GHT: 600
SID: 000000000 SSNN: ^ ^ ■ 9 DL NUK:
E X E C U T I O N
EXECUTED THE WITHIN WARRANT BY ARRESTING THE DEFENDANT AND
(l/) PLACING DEPENDANT IN THE MADISON COUNTY JAIL
( ) RELEASING DEFENDANT ON APPEARANCE BOND

A
THIS DAY OF

SHERIFF
Dorni
3 n \ / IgxTfccff e r s o n
BTT

OPERATOR: TAG DATE: 08/03/2018

 EXHIBIT ELECTRONICALLY FILED
I O il 1/18/2019 10.52 AM
47-CC-2018-003238.00
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
DEBRA KIZER, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

STATE OF ALABAMA,

PLAINTIFF,

v^. CASE NO. CC18-3238 DSP

WILLIAM DARBY.

DEFENDANT

MOTION FOR IMMUNITY FROM PROSECUTION

AND REQUEST FOR EVIDENTIARY HEARING

COMES NOW, Officer William ‘Ben’ Darby, by and through the undersigned attorney,
and respectfully requests an evidentiary hearing and at the conclusion of the evidentiary hearing
this cause be dismissed and Defendant be discharged without further obligation of this Court for
the reasons stated below:

1. §13A-3-23(a)(l) reads as follows: “A person is justified in using physical force upon another
person in order to defend himself or herself or a third person from what he or she reasonably
believes to be the use or imminent use of unlawful physical force by that other person, and he
may use a degree of force which he or she reasonably believes to be necessary for that
purpose. A person may use deadly ph>sical force, and is legally presumed to be justified in
using deadly physical force in self-defense or the defense of another person pursuant to
subdivision (4). if the person reasonably believes that another person is using or about to use
unlawful deadly physical force.

2. § l3A-3-23(b) reads as follows: "A person who is justified under subsection (a), in using
physical force, including deadly physical force, and who is not engaged in an unlawful activity
and is in any place where he or she has the right to be has no duty to retreat and has the right
to stand his or her ground.”

3. §l3A-3-23(d) reads as follows: "A person who uses force, including deadly physical force, as
justified and permitted in this section is immune from criminal prosecution and civil action for
the use of such force, unless the force was determined to be unlawful.”

4. If §13A-3-23(d) provides immunity from criminal prosecution, the Defendant must be given
an opportunity to be heard prior to trial and present evidence of why he is entitled to that
immunity. Immunity is not an affirmative defense, but an complete bar to prosecution.
 DOCUMENT 45

5. At the time of the shooting made the basis for these charges, the Defendant vvas an on-duty
Huntsville Police Officer, responding to a call of a man with a gun inside a residence
threatening suicide. In responding to said call, the Defendant acted in accordance with
Alabama law, and within the policies and procedures established by the Huntsville Police
Department.

6. The shooting occurred on or about April 2, 2018.

7. The Defendant was indicted on or about August 3, 2018.

8. For an officer to be convicted of Murder resulting from an on-duty shooting, the facts of the
incident would have to be so bizarre that there is no rational explanation for the officer’s
actions.

9. The defendant contends that, acting in his official capacity as a Huntsville Police Officer, he
was acting in self defense and in the reasonable defense of others pursuant to and under
Alabama Code §13A-3-23, at the time of the shooting that resulted in the decedent’s death.
Alabama Code §13A-3-23 states that,

"a person who uses force, including deadly physical force, as justified and permitted in this
section is immune from criminal prosecution and civil action for the use of such force, unless
the force was determined to be unlawful.”

10. In addition, Alabama Code §13A-3-23(d)(2) states,

“Prior to the commencement of a trial in a case in which a defense is claimed under this
section, the court having jurisdiction over the case, upon motion of the defendant, shall conduct a
pretrial hearing to determine whether force, including deadly physical force, used by the
defendant was Justified or whether is was unlawful under this section. During any pretrial
hearing to determine immunity, the defendant must show by a preponderance of the evidence
that he or she is immune from criminal prosecution.”

11. Defendant hereby moves this Honorable Court to hold a hearing at its earliest convenience on
the "immunity issue.”

WHEREFORE, above premises considered. Defendant prays that an evidentiary hearing

date will be scheduled as to his immunity claim, and upon a review of the relevant facts the
Defendant be found immune from this and any other criminal prosecution or civil action and that
the Defendant be discharged without further obiigation of this Court, pursuant to Alabama Code
§ 13A-3-23.
 DOCl IMENT 45

Respectfully submitted this the 17"’ day of Januaiy, 2019.

/s / Robert B. Tuten
ROBERT B. TUTEN (TUT002)

Attorney for Defendant

CERTIFICATE OF SERVICE

This document has been filed electronically and served upon opposing counsel pursuant
to the Administrative Procedure for Filing Signing and Verifying Documents by Electronic
Means in the Alabama Judicial System. For any opposing counsel or unrepresented parties who
are not registered to file electronically, a copy of this pleading shall be served via the U.S. mail,
postage pre-paid, to the litigant’s address as maintained in the office of the Circuit Clerk.

Done this 17'*’ day of January, 2019.

/s / Robert B. Tuten
ROBERT B. TUTEN
 ELECTRONICALLY FILED
4/4/2019 9:03 AM
47-CC-2018-003238,00
CIRCUIT COURT OF
MADISON COUNTY. ALABAMA
DEBRA KIZER, CLERK
IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

STATE OF ALABAMA )
)
V. ) Case No.: CC-2018-003238.00
)
DARBY WILLIAM
Defendant.

ORDER

On motion of defendant, an immunity hearing was held herein on April 3, 2019. The
State of Alabama was represented by Hon. Tim Gann and Hon. Tim Douthit.
Defendant was present and was represented by Hon. Robert Tuten.

Upon consideration of the evidence presented and applicable law, it is ORDERED that
defendant's motion for immunity be and the same hereby is DENIED.

Pursuant to Smith \/. State, 2018 WL 4275449 (Sept. 2018), further proceedings herein
are STAYED so that defendant may pursue his appellate remedies.

DONE this 4*" day of April, 2019.

Isl DONNA S. PATE

CIRCUIT JUDGE