Pubdate: Tue, 06 Jan 2004
Source: Courier-Journal, The (KY)
Copyright: 2004 The Courier-Journal
Contact:  http://www.courier-journal.com/
Details: http://www.mapinc.org/media/97
Author: Laura Bauer
Bookmark: http://www.mapinc.org/people/michael+newby
Bookmark: http://www.mapinc.org/racial.htm (Racial Issues)

OFFICER TAKES THE FIFTH IN SHOOTING CASE

Mattingly Won't Talk To Police Until After Investigation Of Man's Death

Lamar Fuller, a friend of Michael Newby, stood across the street from
where Newby struggled with a police officer before being shot.
"Getting his GED, that was his New Year's resolution," Fuller said of
Newby.

A Louisville Metro Police officer who fatally shot a suspect in the
back during an undercover drug buy will not talk to police conducting
a criminal investigation into the death.

Officer McKenzie G. Mattingly, a four-year police veteran who was
placed on standard administrative leave immediately after the shooting
about 11:45p.m. Saturday in western Louisville, has "invoked his Fifth
Amendment rights," police spokeswoman Helene Kramer said.

Mattingly's attorneys advised him not to talk until police have
completed their criminal investigation into the death of 19-year-old
Michael Newby. Police Chief Robert White said Sunday that the
preliminary investigation indicated that Newby, who was carrying a
.45-caliber handgun, was shot three times in the back after he
struggled with Mattingly over the plainclothes officer's service handgun.

Fraternal Order of Police attorney Mary Sharp, who with FOP attorney
Mark Miller is representing Mattingly in the police department's
administrative review of the shooting, said Mattingly is "ready to
tell his story. But we felt this wasn't the time for it."

At the scene of the shooting, Mattingly briefly spoke with a member of
the Public Integrity Unit, which investigates shootings involving
police for possible criminal charges.

"Kramer said Mattingly's decision "hasn't stalled the investigation.
. We're reconstructing the homicide scene the way we would with any
homicide."

Attorney Steve Schroering, who is representing Mattingly in the
criminal investigation, said he agreed that Mattingly should not talk
to police yet.

"At this point in time and climate we need to let the investigation
run its course," Schroering said. "I want to make sure the facts of
this case come out and make sure he's cleared, because the shooting
was justified."

Newby is the second man, and first African American, fatally shot by
an officer since the Louisville and Jefferson County departments
merged Jan.6, 2003. He was the seventh African-American man to be shot
and killed by Louisville or metro police in the past five years.

Civil-rights groups have begun protesting Newby's killing, demanding
that White change a system they say is wrongfully killing black men.

"I hope (Chief White) doesn't come back to us with some justified
homicide," said Kristi Papailler, a member of the Fairness Campaign
who spoke out against the fatal shooting of James Edward Taylor by
Louisville police while he was handcuffed but holding a
box-cutter-type knife.

"Chief White has a wonderful opportunity here to redeem this system
that has failed us for many years," she said.

Without Mattingly to tell them what happened in the 4600 block of West
Market Street, investigators with the Public Integrity Unit are
talking with witnesses and other members of Mattingly's "flex" platoon
that was conducting a drug investigation Saturday night.

The shooting

Mattingly and four or five other officers in his flex platoon had been
working on a drug investigation involving at least three suspects,
including Newby. That investigation led them into the 6th District
late Saturday. Mattingly was posing as a person attempting to buy drugs.

He and Newby met along Market Street at Longworth Street outside the
H&S Groceries store. A short time later the two got into a struggle
over Mattingly's gun, and the gun went off.

Authorities say Newby ran off and Mattingly fired his weapon four
times. Three bullets hit Newby.

"We still don't know what the essence of the scuffle was," Kramer
said. "I don't know if the officer identified himself as an officer. I
don't know what was said between the two. We'd like to ask (Mattingly)
a lot of questions to find out what he experienced, what he thought,
what he perceived."

Police say they found a .45-caliber handgun in Newby's waistband, and
also drugs and paraphernalia. Authorities say they were testing the
drugs and would not elaborate on their type or the amount.

Newby had been arrested twice before, once for disorderly conduct for
confronting a security officer and another time when he was a juvenile
for carrying a concealed weapon.

Mattingly was wearing a listening device during the attempted drug
buy, but the incident was not taped, Kramer said. Police do not know
why it was not recorded.

"That will be part of the administrative investigation," Kramer
said.

Police also are not sure why Sixth District administrators were not
notified that the flex platoon from David District, in southwestern
Jefferson County, was working the drug investigation in the urban
district. Although such notification is not required, it is often practiced.

"We're looking into whether we need one (a policy)," Kramer said.
"There are administrative issues we need to look into to enhance our
police department."

All shootings involving officers are handled with two police
investigations: one conducted by the Professional Standards unit that
determines whether department policies and procedures were broken and
a second done by the Public Integrity Unit.

Lingering questions

People in the neighborhood where Newby - who dropped out of Pleasure
Ridge Park High School years ago and recently was seeking to earn his
General Educational Development certificate - was killed say they
cannot begin to understand what happened.

"Why shoot a kid in the back and shoot him three times?" asked Morris
Thomas Sr., a longtime resident of the neighborhood where Newby grew
up playing basketball with friends.

Thomas, who has known Newby's family for years, said police need to
release more information.

Others neighbors agree.

"Why fire shots if you're not in danger?" asked Carmen Pope, 31, who
was working at a liquor store near H&S Groceries earlier Saturday
night before the shooting. "I don't know how you can be a threat when
you're running from people."

In a meeting with Metro Mayor Jerry Abramson late yesterday, White
said the investigative report of the shooting will be sent to the
commonwealth's attorney within a month.

Harry Rothgerber, first assistant attorney for the Jefferson
commonwealth's attorney's office, said the office had not received
information about the shooting.

"If there is one thing the community should have learned from the
James Taylor case is that nobody should speculate on what did happen,
or what could happen or what will happen until all the facts are in,"
he said.

"Once we receive the final report, we'll make a decision."

The police department's policy authorizes an officer to use deadly
force if he or she believes the suspect is "an immediate threat of
death or serious injury to the officer or another."

The policy recommends that the officer issue a verbal warning before
using deadly force.

But Lt. Col. Steve Conrad, who oversees the department's policy
revisions, said a plainclothes officer is not required to identify
himself before using force if a threat is immediate.

Police policy also authorizes officers to use deadly force to prevent
an escape if the suspect already was placed under arrest and if the
officer believes the suspect is likely to endanger human life unless
apprehended immediately.

White introduced the revised use-of-force policies after the
Louisville and Jefferson County police departments merged.

"We felt it was really important to set the tone for our officers,"
Conrad said.

A troubled past

Newby had been arrested twice before and once ran from officers on
Market Street while he was carrying a gun, according to police reports.

According to court records, on Jan.18, 1999, Newby, then a tall
14-year-old middle school student, was walking slowly east along the
4100 block of West Market Street and acting suspiciously.

When police tried to stop Newby, he ran into an alley, stopped and
pulled out a chrome-plated handgun and threw it down, according to the
police report. Police caught Newby a short time later and found a
.380-caliber semiautomatic handgun nearby. Newby was charged with
carrying a concealed deadly weapon, a felony.

Newby, then a Kennedy Middle School seventh-grader, pleaded guilty on
Jan.20, 1999, and was sentenced to 45 days in jail. The sentence was
conditionally discharged until he turned 18, provided he was not
arrested again. The weapon was confiscated.

Newby was arrested again Dec.22, 2002, on charges of disorderly
conduct, resisting arrest and third-degree assault after he allegedly
assaulted a security officer.

Newby became "disruptive" when a security guard escorted him out of a
club at 3001 S. Seventh St., according to court records. Newby then
allegedly assaulted a police officer.

He pleaded guilty to disorderly conduct and was fined $102.50, with
the other charges dismissed. He was sentenced to 45 days in jail,
which was conditionally discharged.

He failed to show up for court last March to pay his fine. A warrant
was issued for his arrest, according to Debbie Linnig Michals, a
spokeswoman for the Jefferson County Circuit clerk's office.

Another side of Newby

Family and friends say they knew a much different Michael Newby. His
friends called him "Newby." His family knew him as "Li'l Mike."

They talked of his love of making others laugh and playing pranks or
telling jokes.

"He would sneak up behind me and say `Boo!' and I'd say `Stop, Mike,'"
said Helen Swain, Newby's aunt. "He was such a fun-loving person. ...
He wasn't a trouble kind of guy. He was always dancing and making
jokes and playing."

Newby told his friends that this year would be different. He told them
last week that he was going to get his GED and possibly become a
veterinarian, as his aunt hoped he would be.

"Getting his GED, that was his New Year's resolution," Lamar Fuller
said yesterday as he stood along Market Street, several feet from
where his friend was shot. "The cops took that away from him three
days into the New Year."

More than two dozen family members, friends and civil-rights activists
met late yesterday afternoon to mobilize for protests and rallies.

The Rev. Louis Coleman, the director of the Justice Resource Center,
predicted that investigators would rule that Newby's killing was
"justifiable homicide."

"It will be business as usual," a skeptical Coleman
said.

The Rev. Alvin Herring of New Covenant Community African Methodist
Episcopal Church in Jeffersontown urged his fellow clergy to protest
loudly.

"It is time for us in the ministerial community to stop being nice
about this," he said. "White people have to understand that this is an
ill visited in our community now, but it will be visited on their
community next."
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MAP posted-by: Larry Seguin