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Civil trial set to begin over 2004 Clayton police shooting

Posted September 9, 2009
Updated September 21, 2009

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— Jury selection began Wednesday in a federal lawsuit filed by a man who was shot by Clayton police five years ago.

Three officers searching for an escaped probationer fired at Manuel Pena, then 60, at his mobile home on Feb. 2, 2004. Two bullets struck Pena in the upper body.

Pena is seeking compensatory and punitive damages for physical and emotional injuries, as well as property damage, lost wages and medical expenses. He filed suit against the town and officers Jeffrey Ray Porter, James Bennett Barbour and Jason Glenn Barnes.

Manuel Pena suit against Clayton and police officers Clayton man sues, town, officers over shooting

The suit, which was filed in December 2004, alleges that the officers used excessive force against Pena, who did not pose an immediate or deadly threat.

"They came onto my land and shot my father in the middle of the night because they let someone else go," said Pena's son, Hector Pena.

In the suit, Manuel Pena's lawyers say he went to his door late at night armed with a .22-caliber rifle because he thought a predator had frightened his chickens and dogs. Pena, a U.S. citizen who speaks little English, did not hear or understand the officers' instructions to put down his weapon, according to the suit.

Four months after the shooting, then-Johnston County District Attorney Tom Locke cleared the officers of wrongdoing, based on findings from the State Bureau of Investigation.

According to Locke's 2004 report, Pena came to the door with a rifle after officers knocked on the door and announced themselves. He didn't respond to commands to drop the gun, and officers first fired when he moved the weapon "as if to shoulder it," the report states. After going back into his trailer, Pena came back onto the porch still holding the rifle and appeared to point it in the officers' direction, according to the report.

Officers fired 16 rounds at Pena and into his house, according to both the lawsuit and the district attorney's report.

The suit alleges that Porter and Barbour violated department policy by firing into an occupied house when they couldn't clearly see the person inside. It also contends that the search of Pena's property was unjustified because the officers didn't have a warrant.

The probationer the officers were looking for, Rudy Gonzales, wasn't known to be violent or armed, according to the suit.

Gonzalez jumped out of a probation officer's vehicle in Pena's neighborhood, prompting the search.

He was on probation for three counts of breaking into and stealing items from vehicles, as well operating a vehicle without a license, according to state Department of Correction records. He served four months in prison after being caught in February 2004.

The federal trial is expected to begin next week, and lawyers for both sides have been ordered not to discuss the case until the trial is over.

"The judge has made it clear to us, and we also understand we shouldn't speak about it," said Wade Smith, Pena's attorney.

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