WAYNE -- A Kentucky man has filed suit against the city of Kenova, four of its police officers and two other city employees, alleging he was shot in the head by a police officer while working as a security guard at Big Sandy Superstore in Kenova.
Harry Duncan was alone guarding a tent set up outside Big Sandy during the night on Oct. 26, 2007, when he saw a man standing five feet away from him in a hooded sweatshirt who was pointing a gun at him, according to the complaint filed Oct. 16 in Wayne Circuit Court.
Without any warning, the man in the sweatshirt shot Duncan in the head, the suit states.
Before he was shot, Duncan claims he noticed the man was wearing a police badge and got a good look at the man's face.
"It was a stranger's face, but one he would never forget, and one that he would see that evening a few hours later," the suit states.
After shooting Duncan at about 1:26 a.m., the man quickly left and Duncan was able to climb into his car, where he called his girlfriend, Brenda Martin, on his cell phone, according to the complaint.
While Martin was calling Duncan's supervisors, Duncan drove himself to King's Daughter's Medical Center in Ashland, Ky., Duncan claims.
At about 3:04 a.m., Kenova police officer Joshua Stephens arrived at the hospital to investigate the shooting, according to the complaint.
However, Stephens was the same man who had shot Duncan earlier, the suit states.
"Officer Stephens presented in a very nervous, shaky, fidgety and unprofessional manner," the suit states. "He was wearing his uniform (a light blue shirt, with his badge on his shirt), which was very wrinkled, and his hair was messy. He was no longer garbed in the hooded sweatshirt that he was wearing when he shot plaintiff in the tent at the Big Sandy parking lot."
When Stephens asked Duncan who had shot him, Duncan claimed he was too scared to give a truthful answer and instead replied he did not know.
Instead of going straight home when he was released from the hospital about 4 a.m., Duncan and Martin went back to Big Sandy where they found Stephens searching the scene, according to the complaint.
"That morning, plaintiff, Brenda and Mr. Pemberton (Duncan's supervisor) observed Stephens searching for his bullet in the backdrop of the exact area where he had shot plaintiff only a few hours before," the suit states.
Neither Duncan nor Martin nor Pemberton could find Stephens' spent cartridge or bullet, Duncan claims.
They believe Stephens removed the cartridge after he shot Duncan, but could not find his bullet.
About two weeks after the shooting, Duncan met with Steve Jordan, a loss prevention manager at Big Sandy, and Pemberton to discuss what should be done.
Because the incident involved a Kenova officer, they were reluctant to meet with Kenova police, they claim.
Before he was a Kenova officer, Stephens worked for the Wayne County Sheriff's Department as a deputy, so they ruled out contacting them.
Stephens's brother was an officer with the West Virginia State Police, so the three counted out reaching to them.
Jordan agreed to call an FBI agent he knew to see if the FBI would be willing to investigate, the suit states.
In turn, the FBI recommended the case be turned over to Kenova Police Chief Steven Salyers, and Duncan claims he agreed.
Although Salyers agreed that Stephens owned a .45-caliber gun -– the same type that shot Duncan –- he denied the shooter was Stephens.
He reached the conclusion after watching a surveillance video that captured the incident, according to the suit.
The video also revealed other scenes before the shooting occurred, Duncan claims.
"The surveillance video depicts Officer Stephens at the loading dock at Big Sandy after 1 a.m., at which time he appeared to be stalking someone or something," the suit states. "At approximately 1:26 a.m., the video surveillance depicts a 'muzzle flash', which can be observed from a reflection on the rear door of a white semi-trailer in the immediate area where Officer Stephens had been standing only moments before the shooting."
Even though the video depicts Stephens at the scene, no report or investigative notes were issued and no arrests were made, Duncan claims.
Duncan believes that Stephens, Salyers and two other Kenova officers –- David Francis and David Reynolds -- acted together to cover up the shooting and "therefore participated in a civil conspiracy to deny plaintiff his constitutional rights," the suit states.
Because of the shooting, Duncan claims Stephens, Salyers, Francis and the city of Kenova denied him of his Fourth, Eight and 14th Amendment rights.
He also claims Stephens's intentional, offensive and unwanted action constituted battery and outrage.
Kenova is liable because of its employees' negligent actions and was negligent in the hiring, retention, training and supervision of its employees, the suit states.
Duncan is seeking unspecified compensatory, treble and punitive damages, plus attorney fees, costs and other relief the court deems just.
Timothy P. Rosinsky of Rosinsky Law Office in Huntington and Kerry A. Nessel of Nessel Law Firm in Huntington will be representing him.
Wayne Circuit Court case number: 08-C-279