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David Ware, Killed By Police: a Vindication

Illustration by Melanie Cervantes.

The killing of David Ware by an Ypsilanti Police Department officer in 2007 appears, in 2016, as just a variation of a standard and sick script that plays out with regularity.

Two officers pursued Ware as he fled from the scene of a drug bust outside The Keg Party Store. Ypsilanti Police Department Officer Uriah Hamilton fired the three shots from behind Ware, killing the unarmed 29 year old. The officer’s justification: “I thought he was turning around and reaching for a gun.”

All that officers found on his body was cash. No gun. And while Hamilton and the YPD would have preferred it be a dead man’s word against their own, a witness saw the killing go down from his home.

And the witness says Ware never turned around or reached for his belt.

The short of it is clear: White YPD officer Uriah Hamilton killed an unarmed black man, who presented no threat, by shooting him in the back.

“They robbed my son of his life, and they robbed my grandchildren. I have grandkids who sit up and cry about their dad, and what can I tell them? What can I tell them to bring their dad back? We sit up and cry, and it’s like it happened yesterday,” said Ware’s mother, Maudess Marie Sutton.

The city of Ypsilanti rejected a RAW FOIA request for information on the circumstances around Hamilton’s departure from the YPD long after the shooting. It’s unclear when and why he left the force, but news articles show he remained employed after the 2010 settlement. Regardless, Washtenaw County Prosecuting Attorney Brian Mackie never brought charges against Officer Hamilton; Sutton said the YPD never punished him; and the City’s insurance company paid the $450,000 settlement.

In other words, Officer Hamilton faced no consequences for his killing of David Ware.

The only form of justice came in a civil suit. Ware’s family sued Hamilton and the city of Ypsilanti in federal court, and in the subsequent hearings, Hamilton argued that Ware turned around. Hamilton asked Judge Avern Cohn to dismiss the suit on the grounds that there was no factual dispute over what happened: Hamilton did the right thing, and the facts support that, the defense argued.

They also pointed to forensic evidence presented by Washtenaw County Medical Examiner Bader Cassin.

Court documents show Cassin reported the fatal bullet hit Ware at an angle that could conceivably indicate that Ware turned to look over his shoulder. But, Cassin continued, it could also mean the shooter fired from an angle that caused the entrance wound.

Hamilton asserted that the entry angle proves Ware turned around.

“[Hamilton] is mistaken,” Judge Cohn wrote in his ruling.

Cohn found enough uncertainty in Cassin’s observation and a large enough gap between the police and witness’s account that he denied Hamilton’s request to dismiss the case. Faced with a jury trial, Hamilton and the city opted to settle, paying Ware’s family $450,000 for his murder.

The killing came at least seven years before names like Eric Garner, Michael Brown, Aura Rosser, Trayvon Martin, and, most recently, Alton Sterling and Philando Castile, landed in headlines.

What the Ware case shows is white police needlessly killing black women and men isn’t a new phenomenon. To the contrary, the case is evidence of a pattern of injustice carried out by law enforcement with some regularity prior to the age of cell phone cameras and social media.

It also provides some context for 2016 events and helps explain that the national outrage over the most recent murders didn’t appear out of thin air—the problem has always been here, it’s just documented better in 2016.

The media covering Ware’s killing failed to mention it left a family without a father, brother, and son. There was also no article on the federal judge’s concerns over the killing, or on the city of Ypsilanti and Officer Hamilton settling with the Ware family for $450,000.

The record needs to be set straight.

Making a Villain

While there’s no denying Ware was caught up in illegal activities at that moment in his life, Ypsilanti and its police department took pains to paint him as a dangerous criminal and a serious threat to the public. The media repeated this official line, noting a rap video Ware made that showed drugs and guns.

The goal of villainizing is to justify killing, yet it’s unreasonable to think that someone with a non-violent minor criminal record and a rap video is more deserving of a bullet in the back.

Ware’s family, of course, saw a different person than Officer Hamilton, and certainly not one deserving of death. His sister, Alethia Ostfeld, described her brother as “the kind of guy who would give the shirt off his back, who loved his family, and was passionate about music. Rapping was his way of transforming his passion for music into entertainment.”

The family spent the kids’ youngest years in Inkster, but Sutton said she wanted her kids to grow up in a better environment, so they moved to Belleville. Ware wasn’t a perfect student, Sutton said, but wasn’t a problem child either. She described him as a “normal kid” who was raised in the church. She acknowledged he made some questionable choices later in life, but said he was never the serious criminal police painted him to be.

“My son was a loving kid. He did no more to get in trouble than most kids. He really wasn’t that bad. He ended up making bad choices, but all kids make bad choices,” Sutton said. “He wasn’t a thug. He wasn’t in a drug cartel or nothing like that.”

Growing up, he struggled with the loss of his father who died when Ware was young, and he cried for his dad at night, Sutton said. While looking for a father figure, Ware turned to his older brother, Leon, who died in a car accident several years before Ware’s death.

A father of six, Ware had mouths to feed. He struggled to keep a regular job, and is suspected of having begun to deal drugs at some point in his mid 20s. His family said that because he never brought that part of his life around them, they weren’t aware of it. What everyone close to him did know, however, was how committed he was to taking care of and providing for his children.

Ostfeld added that Ware wasn’t violent and he told her he would never carry a gun because he didn’t want to get shot by the police.

But what about the rap video police pointed to in an attempt to assassinate Ware’s character? His family says that was for show, and noted that rappers everywhere make videos displaying drugs and guns, but this should give no one permission to shoot them in the back.

The officers knew Ware, Ostfeld said, and knew where he, his family, and his friends lived. They also knew he wasn’t a threat and could’ve found him the next day instead of shooting him.

“So he made a bad decision. Let him live. I would much rather have my brother alive and facing charges than dead. I don’t understand how you can justify shooting someone who’s unarmed and running away from you,” Ostfeld said. “The media made no mention of the sting that went wrong. What I got from the media was that he made a bad decision, he was involved with drug activity, he was a rapper, he rapped about drugs, so we killed him and that’s OK. This buy-and-bust sting operation was planned by the police, so they had much more control of the situation and therefore more responsibility for the outcome.”

And when he was killed, Ware and his family had little money—so little that they couldn’t afford a headstone for his grave. That’s not the type of end a kingpin meets, family members said.

Rick Ruby, an attorney who represented the family in its civil suit, said the police presented an inaccurate picture of Ware—but that’s what police do.

“He was a small-time operator, but they acted like he was a major kingpin. It was ridiculous,” Ruby said.

Shot Him in the Street “Like a Dog”

The events leading up to the murder aren’t disputed, and are laid out clearly by Judge Cohn in federal court documents.

A LAWNET team that included YPD, Michigan State Police, and Washtenaw County Sheriff’s Office personnel set up Ware and his cousin, Maurice Moore, in a sting operation. Cohn wrote that the deal went down in The Keg parking lot. Immediately after the exchange of money for cocaine between Ware and an undercover officer took place, police moved in.

Moore started driving away, so WCSO Deputy Sam Wallace fired three shots at the driver’s side window. That prompted Moore to stop, jump out of the car, and drop to the ground, court documents show.

But Ware jumped out, threw his drugs, and started running down nearby Arcade Street.

Judge Cohn wrote that Michigan State Police LT. Jerry Cooley yelled, “Don’t make me shoot!” as Ware fled. Wallace began to give chase, but slipped on ice.

Hamilton then began chasing Ware down Arcade Street, and told the judge that he thought Wallace had been shot. But Wallace clearly had not been shot as he quickly joined the chase. Both officers reported yelling, “Police! Stop!” as they pursued Ware.

Jerry McCullough, a then 17 year old who lived with his family on Arcade Street, heard the commotion. He looked out his window, Cohn wrote. and saw Wallace and Hamilton running side by side, though Hamilton claimed he didn’t see or hear Wallace.

Officer Wallace told the court he saw Ware looking back over his shoulder, but “did not see a weapon and did not feel he was in imminent danger, so he did not fire his gun,” Cohn wrote.

McCullough’s version differs there, Cohn continued. McCullough reported Ware “ran straight down the street” and he was “positive” Ware did not look back over his shoulder, and that Ware was “just running.”

Hamilton told the court he saw Ware look back over his right shoulder and saw Ware’s hand “reach into his waistband.”

But, Judge Cohn noted, “[Hamilton] later said that he did not know if he actually saw Ware’s hand.”

“No one ever saw a gun, warned each other that there was a gun, or is sure that he was going for a waistband,” Judge Cohn wrote.

Still, Hamilton fired three times.

Cassin reported the fatal bullet entered the right side of Ware’s back while he was upright, and the next two entered while he was supine. “Wallace said Ware was on his stomach and Cooley turned him over, at which point money flew out of his left hand,” Judge Cohn wrote.

“The Question”

“The question is: Did Hamilton have probable cause to believe that Ware posed a serious danger to him or others while Ware was running away from the scene of a cocaine-bust?” Cohn wrote in his order.

Hamilton and the City argued that Hamilton believed Ware was armed and had shot Wallace. The defense also asked the court to ignore the eyewitness account, and argued that medical examiner Cassin’s testimony and forensic evidence proved that Ware had turned around.

Judge Cohn disagreed.

“Hamilton’s erroneous belief that Ware was armed and had shot Wallace is not sufficient to create probable cause when Ware was fleeing at the time he was shot,” Cohn said.

He added that forensic evidence “supports both Hamilton’s and [the Ware estate’s] versions of the facts.”

Hamilton further argued that probable cause may exist to shoot a suspected felon who is unarmed and fleeing if there is a reason to believe that he poses an immediate threat to himself or others.

“While this legal premise may be true, it cannot be applied to Ware, who posed no threat to anyone as he ran down Arcade Street,” Judge Cohn responded.

Bottom line, according to Judge Cohn: “Ware posed no threat of harm when he was shot.”

With all the unclear facts surrounding the shooting, Judge Cohn wrote, the case should go to trial.

Attorney Rick Ruby underscored the importance of a witness catching the killing.

“Our witness, McCullough, is an independent guy. He has no dog in the fight. The cop is going to say what the cop is going to say—they have to come up with something to justify killing,” Ruby said. “McCullough said, ‘No, it didn’t happen that way,’ so that created a question of fact.

“Now, if we didn’t have McCullough, then we don’t have any evidence, and we’re out of there. McCullough is a game changer,” he added.

Prosecuting Attorney Mackie: Killing is Justified

In a statement to RAW, Washtenaw County Prosecutor Brian Mackie said previous case law establishes that it is justifiable homicide to prevent a fleeing felon from escaping by killing them.

The U.S. Supreme Court wrote in Tennessee V. Garner (1985) that police can’t shoot someone who is fleeing without first determining if they present a threat. However, that was a civil case, and Mackie cited the case of the Michigan Supreme Court V. Couch (1990), in which police killed a fleeing a man. The Michigan Supreme Court ruled that police killing a fleeing suspect doesn’t open an officer to criminal charges, though a civil case can go forward.

“I have to follow the law,” Mackie said.

But not everyone fully agrees with Mackie’s assessment. Civil rights attorney Bill Goodman called the Couch ruling a “nasty opinion” and noted there was dissent. He also pointed out that the suspect killed in the Couch case first tried to grab an officer’s gun before fleeing, so he did present a threat at one point. In a case like Ware’s, in which a threat never existed that opinion shouldn’t necessarily apply, Goodman said.

He pointed to the Malice Green case as proof that police officers can and should be charged for misconduct.

“It seems to me, to say as a blanket matter … that there can be no consideration of a criminal case is wrong,” Goodman told RAW.

Regardless, Mackie never brought charges against Officer Hamilton, the Ypsilanti Police Department never punished Hamilton, and the City’s insurance company paid the $450,000 settlement.

A Family Still Grieving

When yet another police killing stokes national outrage over police treatment of people of color in the U.S., Ware’s family experiences flashbacks.

Ostfeld, Ware’s sister, says she doesn’t hate police officers, but believes fear and a lack of cultural proficiency among officers leads to problems in their interactions with black people.

“Some police don’t value their lives. They don’t feel like black men bring value to the community, or they are a valued person in society, so no one will care if they are killed. That’s how I feel when I read these stories, and that’s how I felt when my brother was killed,” she said.

“Some officers look at it as one less black man to deal with. That was my impression of the officer who killed my brother. Uriah Hamilton didn’t see a brother, a father, a man who loved life and loved his family.”

Ware’s mother, Maudess Marie Sutton, says she’s still angry and struggles to move on.

“I don’t want to look at the picture of my son because I hurt so bad. I don’t know how I’m supposed to feel. I don’t know. I’m still looking for the answer,” she said, fighting back tears.

“Every day I wake up and I don’t think, I grieve. I don’t know what to do with it. It’s a mental thing. It’s something that I can’t explain, that I don’t have words for. I don’t know what to do with something like this. I’m afraid to think about it, Lord keep me.”

Sutton stressed that she’s not prejudiced, but she said she doesn’t see white people killed as frequently as black people.

“My son got a raw deal. He got shot in the back by Uriah Hamilton. My son did not have a gun, and they shot him down in the street like a dog.”

“God will have the last say so. I have forgiven Uriah Hamilton, but I’d like to ask him one question: How would you feel if your son, who was unarmed and running away, was shot in the back by a police officer? What happened to my son shouldn’t happen to anyone.”

A Headstone for David

On January 23, 2007—seven years before the Ferguson Rebellion ignited the Black Lives Matter movement—a young man named David Ware died after having been shot in the back while running away from law enforcement agents in Ypsilanti, Michigan. He was unarmed. Local media, police, and the county prosecutor had nothing much to say about David’s death, save for the fact that it was “justified.”

Nine years later, in a piece called “David Ware: A Vindication,” Radical Washtenaw set the record straight, and redescribed this killing as another in a long line of unjustifiable police killings of Black civilians.

While doing research for the story, we learned that David Ware’s grave is still unmarked. At his family’s request, we join them as they set about to raise funds for a headstone for David.

If you can, please chip in, and consider sharing the url:

http://youcaring.com/headstone4david

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