Michael Ellerbe

An unarmed, 12-year-old boy fleeing from two Pennsylvania state troopers was not a threat to them when they shot him to death and his family should receive more $28 million in damages, a Pittsburgh jury has ruled.

The award in the excessive force case -– which included $24 million in punitive damages -- is one of the largest of its kind in Western Pennsylvania history. It was also a victory for controversial plaintiffs' attorney Geoffrey Fieger, who represented the family of Michael Ellerbe.

One of the officers, Cpl. Juan Curry, claimed his gun fired accidentally, missing Ellerbe, as he and Trooper Samuel Nassan chased him through a neighborhood of Uniontown, Pa., on Christmas Eve 2002. Nassan said he shot Ellerbe in the belief that the boy had opened fire on his fellow officer.

But neither of the officers ever saw Ellerbe with a gun during a pursuit which lasted about two minutes, and eyewitness testimony and physical evidence supported the plaintiffs' theory that they simply shot him to stop him from escaping. Nassan shot Ellerbe in the back and the plaintiffs argued that another shot fired by Curry grazed his arm.

“The jury has determined unanimously that these officers shot a little boy in the back and arm and lied about it,” Fieger said.

During a pivotal cross-examination, Fieger asked Nassan, “Why didn't you turn to Trooper Curry and say, 'Are you shot?' before you shot a child?”

“I had to stop the action, sir,” the trooper replied, using police jargon.

“He never turned around,” Fieger said. “He was running away. What action were you stopping? Some imaginary action?”

The pursuit began when the officers saw Ellerbe driving an SUV which had been reported stolen. He came to a stop in an alley, got out of the vehicle and ran away, with Nassan and Curry giving chase on foot.

Curry testified his gun went off as he climbed over a fence into the backyard of a home and insisted that “I never shot Michael Ellerbe.” A serration in the fence, he said, protruded into the trigger guard of the weapon, causing the trigger to pull.

But no gun residue was found along the fence and a forensics expert testified the trigger was pulled by Curry's trigger finger. “A reasonable juror could conclude defendant Curry’s testimony was not credible and determine that he intentionally fired his gun towards Ellerbe,” U.S. District Judge Joy Flowers Conti said in an opinion denying summary judgment.

Conti also ruled that “viewing the disputed facts in the light favorable to plaintiff, defendants had no reason to believe that the 5'2", 110 pound Ellerbe was armed, nor did they perceive an immediate threat to themselves or anyone else when they fired.”

An attorney for the troopers said they will appeal and a police union official called the verdict “an incredible injustice.” What may be incredible is that the state ever imagined a jury would buy Curry's explanation of how his gun fired.