Bourbon County

Bourbon deputy says he thought man was armed

Only two men know what really happened on the night of Sept. 21, 2007, about 8:30 p.m., on Tucker's farm in Bourbon County.

On Tuesday, a federal jury heard both Deputy Sheriff Ed Rodgers and the man he found on that farm that night, Robert Brewer, describe their memories of that night.

Brewer was shot while under a tree, his unattached prosthetic leg leaning against it.

Aside from the fact that an unarmed Brewer was injured, the versions bore no resemblance to each other. Brewer and his estate assert that Rodgers deprived Brewer of his rights and that he and Deputy Guy Turner showed deliberate indifference to his need for medical aid.

U.S. District Judge Jennifer B. Coffman's courtroom heard a day full of conflicting scenarios and alternate possibilities for what could or should have occurred when Rodgers was sent on a routine call to check on Brewer, who had been walking around the area and, according to neighbor Charles Henney, drinking all afternoon.

Rodgers took the stand first and never wavered as he told how he approached the tree where Brewer was located and noticed a man peeping around it, "trying not to be seen." He says he got on his car's public address system and told the man to come out. According to Rodgers, Brewer responded: "I have guns, and I'll kill all you sons of bitches. Leave me alone."

It was then, said Rodgers, that he saw Brewer assume the position of a person holding a long gun, sighting his target from behind the tree.

Rodgers said he ducked into his cruiser "in fear of his life." He drew his weapon. He said he saw a blur and heard Brewer become more excited and more vocal. He said he believed he saw a muzzle flash.

Then he fired, hitting Brewer in his upper chest, neck and left forearm. Upon seeing that Brewer was bleeding badly, he called for an ambulance and searched in vain for the weapon he thought he had seen.

Within seconds, he said, Turner arrived as backup.

Brewer's attorney, Ed Cooley, questioned whether Rodgers had shot only one round. Rodgers insisted he had. Cooley asked when the trigger was pulled, before or after the flash, as what Rodgers said on the communications audiotape might have suggested differently.

Rodgers stood firm: He said he did what he thought he had to do; he thought he saw a gun; he thought he had no choice.

Cooley responded with expert "use of force" witness Dr. Michael Lyman, professor of criminal justice at Columbia College in Columbia, Mo., the author of seven policing textbooks. Lyman had been a law enforcement officer for 11 years with the Kansas Bureau of Investigation, among other agencies.

His conclusion, he said, was that "the use of deadly force by Deputy Rodgers was excessive and unjustifiable. It served no objective or reasonable purpose. It was not supported by nationally recognized standards of care."

Deadly force, said Lyman, "must be a last resort; Deputy Rodgers had viable options." Those included, he said, retreating to a defensive stance and waiting for the backup he knew was coming.

Rodgers' attorney, Shelby Kinkead Jr., argued that there is "no duty to retreat" in Kentucky law.

Lyman agreed. "I never said there was a duty to retreat. I said there was a viable option."

It was late afternoon by the time the audiotaped voice of Brewer was heard in the courtroom. Brewer died in early 2009, and his deposition is serving as his testimony.

Brewer's version of the night in question is simple: He had not drunk very much. He saw a car tearing through the field toward him with its lights ablaze. He thought it was the farm manager. He went around the side of the tree. That's when he heard the gunshot and it hit him in the chest. Then he was shot again.

He said he never exchanged words with the officer.

The trial continues at 9 a.m. Wednesday at the federal courthouse in Lexington.

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