Bourbon County Deputy Sheriff Ed Rodgers' first civil trial ended in a mistrial in July.
His second trial begins Monday in U.S. District Court in Lexington.
Eight jurors could not agree last summer whether Rodgers was justified in thinking that Robert Brewer had a weapon and had fired it at the deputy before the officer opened fire.
That night — Sept. 7, 2007 — a despondent Brewer had been drinking and smoking marijuana all day in a field near Coulthard Lane. The deputy was asked to check on him after a neighbor called out of concern for Brewer's well-being. Brewer, who was well-known to the deputy, was on the ground with his prosthetic leg leaning against a tree when the deputy approached him.
Rodgers testified that he then saw a long gun in Brewer's hands and saw a muzzle flash before firing his own weapon. A bullet from Rodgers' service revolver hit Brewer's neck and left forearm. The wounds were not life-threatening. Brewer died in early 2009 of other causes.
His widow filed a federal lawsuit against the Bourbon County sheriff and Rodgers, accusing the deputy of violating the civil rights of her husband. The jury's job was to determine whether Rodgers overstepped his bounds or whether Brewer's actions had caused Rodgers to do what an objectively reasonable officer might do in the same circumstance.
After the first jury was unable to reach a verdict, U.S. District Judge Jennifer B. Coffman ordered the parties to arbitration. That proved equally unsuccessful.
Coffman has made it clear in post-trial rulings that she will allow little variation from the first trial.
"There will be no surprises," said plaintiff's attorney Ed Cooley. "The order may change, but we are looking at presentation of the same testimony. By virtue of court order, we will have the same trial exhibits. The court has limited us to that."
Defendant's attorney Shelby Kinkead Jr. agreed. "There will be some tweaking, but the judge has strongly indicated that she wants us to try the same case."
Last summer, both sides presented expert "use of force" testimony as well as opinions from medical and forensic specialists. And both sides offered conflicting versions of what happened that night. A second Bourbon County officer did not arrive on scene until just after the shooting.
The questions about that night are what need to be unraveled by a jury. Was Rodgers' behavior reasonable? Did he have other more reasonable alternatives to shooting at Brewer? Should he have taken them?
The trial is expected to run through Wednesday.