Jury should hear trooper shooting case, judge says

That's a question that a jury likely will decide, under a recent ruling by a federal judge.

The shooting happened early on Jan. 4, 2003. A snowplow operator had called in a suspicious vehicle at the pullout off the Sterling Highway. Osborn and another trooper, Joseph Whittom, responded. A trooper investigation found that Casey Porter, who was disabled and used a cane to walk, didn't follow Osborn's orders to get out of his car. Osborn pepper-sprayed him, then, seconds later as Porter's car moved forward, fired five shots, killing the man, the trooper investigation found.

After the shooting, Osborn told investigators he thought Porter's car was going to hit Whittom and that he shot to protect his fellow officer.

Porter's parents, Arthur and Kristie Porter, are suing Osborn in federal court. Osborn has been trying to get the case tossed without a trial, on the basis that he has immunity as a law enforcement officer.

U.S. District Judge John Sedwick ruled against him in 2007 and he took the matter to the San Francisco-based 9th Circuit Court of Appeals. A three-judge panel in October 2008 clarified the standard for deciding the case, considering the fast-moving circumstances of the incident.

"Here the events in the pullout were in constant flux, with much yelling, confusion and a driver who was refusing to exit or stop his car. To be sure, the record contains facts suggesting that Osborn's own conduct created and agitated this escalating situation and that his reactions were disproportionate to the situation he faced," Judge Raymond Fisher wrote in the opinion.

For the Porters to win, the appellate panel ruled, "they must demonstrate that Osborn acted with a purpose to harm Casey that was unrelated to legitimate law enforcement objectives." The 9th Circuit sent the case back to Sedwick.

Now in his new ruling, one of several issued earlier this month, Sedwick wrote that Osborn's motives in firing into Porter's vehicle were in dispute, so the case should be decided by a jury unless the two sides could reach a settlement.

Osborn had argued that his only motive was to protect Whittom. But Sedwick noted that right after the shooting, the other trooper told investigators that he "couldn't believe that shots were fired in a situation like this."

Sedwick wrote that "the question remains whether Osborn perhaps sought to 'get even' or teach Casey a lesson for attempting to flee the scene, refusing to keep his hands on the steering wheel, or otherwise objecting to his detention."

Among other issues covered in Sedwick's Dec. 17 order:

• A ruling that a newspaper story about Osborn's history as a trooper would not be allowed as evidence. But the judge didn't rule out testimony from people who had violent or questionable confrontations with Osborn.

• A ruling denying a request to bar Porter's toxicology reports. The judge said he needed more information.

The Porters contend their son's condition didn't give Osborn cause to shoot and jurors shouldn't hear about it.

"The Defense wishes to establish that Casey Porter was a hopped-up, drug addict laying in wait at a turnout along the Kenai Keys with a desire to run down a police officer. Not only is the description wrong, such description defies the events in this case," Mark Osterman, the Porters' attorney, wrote in a court filing.

The judge scheduled a hearing for May 11 to set a trial but urged everyone to try to negotiate an end to the case before that.

In February 2006, the state settled an earlier suit with different plaintiffs for $310,000. It was filed on behalf of Porter's estate, represented by the mother of one of Porter's children.

Osborn resigned from the troopers in 2007 to pursue a career in sailing, according to a Department of Public Safety newsletter.

Efforts to reach Osterman and Ruth Botstein, the assistant attorney general representing Osborn, were unsuccessful Tuesday.

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390.