Anchorage Daily News

More than five years ago, Alaska State Trooper Jesse Osborn shot and killed a man during a confrontation on the Kenai Peninsula.

A lawsuit against Osborn over the death of Casey Porter is now winding its way through federal court.

A three-judge panel of the San Francisco-based Ninth Circuit Court of Appeals heard arguments Wednesday in Anchorage over narrow legal issues that could determine who gets how much money.

Porter was killed early on Jan. 4, 2003, in a pullout near the Sterling Highway. A snowplow operator had called in a suspicious vehicle, and trooper Joseph Whittom was dispatched. Osborn responded too. Porter didn't follow Osborn's orders to get out of his car, and tried to drive away, a trooper investigation found. Osborn pepper sprayed him then, seconds later, fired five shots, killing Porter. The encounter turned deadly in less than a minute.

In December 2004, Porter's parents, Arthur and Kristie, sued in state court arguing that Osborn used excessive force and that their constitutional rights to be with their son were violated when he was killed. They also sued Whittom and the state of Alaska.

The case was moved to federal court. Only the claim against Osborn, in his capacity as a trooper, remains. U.S. District Judge John Sedwick ruled in September 2007 that there was enough evidence to ask a jury to decide if Osborn acted with "deliberate indifference."

But Osborn, who is represented by the attorney general's office, says that's not the right question.

Arguments on Wednesday revolved around the legal standard that should be used to evaluate Osborn's conduct. Did he act with "deliberate indifference?" Or should the case turn on whether his behavior "shocks the conscience?" Or, should he be immune?

Ruth Botstein, an assistant attorney general, argued that officers making split-second decisions in the field are entitled to more deference than those with ample time to deliberate. Under a shock-the-conscience standard, officers who fire a weapon in a dangerous situation should only be found liable if they mean to harm someone with no good reason, she says in her written brief. Protecting others from harm is a good reason, she says.

But what happens, asked Judge Raymond Fisher, when the emergency is created by an officer's "unlawful acts?" What if the officer causes the dangerous situation?

Whittom, the trooper on the scene who didn't shoot, initially told investigators he was shocked the situation resulted in a fatal shooting, noted Judge Dorothy Nelson, another member of the three-judge panel.

Botstein said Osborn had to act fast. He thought Porter was aiming his car toward Whittom, and that Whittom's life was in danger. And Whittom may not have fired, but he had his gun drawn and his finger on the trigger, the state lawyer said.

Mark Osterman of Kenai, representing Porter's parents, said Osborn's behavior was wrong whichever standard was used. Troopers had no reason to think Porter was breaking any laws that night, Osterman said. Osborn didn't even identify himself as a trooper, Osterman said, yet ran alongside Porter's car, his gun out.

The lawyer said after the hearing that it appears Porter was trying to steer around Whittom's patrol car, not ram it. Porter was disabled, and used a cane to work the clutch. He wasn't going very fast, and just how fast is one of the matters in dispute, Osterman said.

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 October 2007 "to pursue a career in his passion of sailing," according to a Department of Public Safety newsletter.

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