B.C. man who was mistaken for target, shot by police in 2013 has lawsuit dismissed
Nearly a decade ago, members of B.C.'s anti-gang police unit conducted a takedown in the parking lot of a Surrey strip mall.
They believed they were arresting a notorious criminal with a history of violent firearms offences and numerous outstanding warrants.
But they had the wrong guy.
The man they actually targeted was Michael Minchin, who was not armed when Const. Vicken Movsessian shot him in the chest during the takedown on Nov. 7, 2013.
On Wednesday, a B.C. Supreme Court judge dismissed Minchin's civil lawsuit against Movsessian, finding that the civilian had not proven the officer was negligent in his actions.
According to Justice Nitya Iyer's decision, four officers – including Movsessian – from the Combined Forces Special Enforcement Unit of British Columbia were tasked with arresting Corey Foster in the takedown.
Before leaving the detachment, Movsessian was given a "target sheet" with a photo of Foster and some details about his appearance, the decision reads. He was also given "a CFSEU press release" describing Foster as having ties to the Independent Soldiers gang and 30 outstanding warrants for his arrest, some of them related to firearms use.
"As well, Const. Movsessian was informed that Mr. Foster might be at a particular address in Surrey, that he was looking to obtain a firearm and for two people to help him commit a home invasion, and that Mr. Foster was addicted to and actively using GHB (Gamma-Hydroxybutyrate)," the decision reads.
Iyer notes that Movsessian had "never seen or interacted with" either Foster or Minchin before the takedown.
The decision details the steps police took on the day, beginning by going to the address where they believed Foster might be, then following a Toyota Camry that left that address with three people inside.
The officers reported watching Minchin get out of the vehicle at another address, go into the carport and retrieve a package from its rafters, and get back into the vehicle, according to the decision.
They then followed the Camry to the strip mall, where Minchin and another man went into a restaurant. At that point, Iyer writes, the surveillance team – which did not include Movsessian – identified Minchin incorrectly as Foster, and Movsessian's uniformed team began preparing for the takedown.
Movsessian was driving an unmarked Chevrolet Tahoe that police planned to use to block the Camry into its parking space. Because of another vehicle in the parking lot, however, the vehicles were positioned differently than planned, leaving Movsessian closest to Minchin, according to the decision.
Movsessian got out of the Tahoe and drew his weapon.
"He testified that he aimed it at the rear seat passenger’s torso, calling out that he was police and instructing that person to show his hands," Iyer writes in her decision.
"He saw the rear seat passenger’s face very close to the window and his hands near his face. He noticed that the person’s eyes were darting from side to side. Const. Movsessian saw that he was complying with the instruction and turned to shut his car door. However, before he actually did that, he noticed that the rear seat passenger had moved away from the window, out of the illumination of the lights, and that his hands were no longer visible."
The constable told the court that he saw movement in the backseat, which he interpreted as Minchin bracing his foot against the floor in order to lift his body up, as though grabbing something from his back pocket.
"Const. Movsessian shot the person through the rear passenger window, shattering the glass, and hitting him in the upper left chest near his shoulder," the decision reads.
"He saw the person’s body flung against the driver’s side window from the force of the blow. He saw the person’s hands in the air near his ears and heard him yell 'don’t shoot, don’t shoot.' As he approached the vehicle, Cst. Movsessian saw the person cower away from him, with his hands remaining in the air. He holstered his firearm before opening the door of the Camry."
The Independent Investigations Office of B.C., which looks into all incidents involving police in the province that result in death or serious harm to a member of the public, was called to the scene.
IIO investigations determine whether there are reasonable grounds to believe an officer may have committed an offence. If there are, the office forwards a report to the BC Prosecution Service, which considers charges.
In April 2015, Movsessian was charged with careless use of a firearm in connection to his shooting of Minchin.
He was acquitted at his criminal trial in December 2016, according to Iyer's decision.
Minchin, who admitted during the civil trial to having illegal drugs in his possession at the time of the takedown, was never charged with a crime related to the 2013 incident.
THE CIVIL LAWSUIT
Iyer notes at the start of her decision that "there is no question that Const. Movsessian shot the wrong person."
The question, according to Iyer, is whether he acted negligently in doing so.
The judge notes that Minchin's lawsuit was brought against Movsessian, and did not claim negligence by anyone else involved in the incident.
Because of this, Iyer writes in her decision, Minchin's submissions about police misidentifying him – as well as the location, timing and technique of the takedown – were "misplaced."
"Const. Movsessian did not make those decisions," the judge writes. "I must consider whether it was reasonable for him to shoot Mr. Minchin based on the information he had and the circumstances that arose. It would be wrong to ascribe to Const. Movsessian responsibility for decisions made by others."
Iyer describes Minchin's claim of negligence as having "three prongs." First, he submitted that Movsessian ought to have recognized that he wasn't Foster. Second, he submitted that it was not objectively reasonable for Movsessian to believe he was reaching for a gun. And Third, he submitted that Movsessian didn't adequately assess the possible consequences if he fired his gun and missed.
In each of these ways, Minchin alleged that Movsessian failed to meet the standard of care that a police officer owes to a member of the public.
Iyer disagreed, writing in her decision that the constable was acting based on the information provided to him by colleagues, and that nothing he saw in his brief interaction with Minchin before the shooting would have suggested to him that the person he was shooting wasn't the takedown's intended target.
"In my view, Const. Movsessian’s failure to notice the differences between the person he actually shot and the person he believed he was shooting was reasonable in the circumstances," the judge's decision reads.
Likewise, because he thought he was interacting with Foster, who he believed was a dangerous criminal with a history of firearms use, it was reasonable for Movsessian to suspect that Minchin was reaching for a gun, Iyer writes.
"Obviously, the wisest course for a person faced with a police officer’s gun being pointed at them is to comply with their directions," the decision reads.
"However, it is certainly possible that an individual might panic, leading them to drop their hands. While another officer might have drawn a different inference, I find that Const. Movsessian’s inference, and his decision to shoot, are consistent with the reasonableness standard … He may have made an error in judgment, but it was not unreasonable in the circumstances."
Finally, on the question of the "backdrop" against which Movsessian shot Minchin, Iyer's decision notes that the officer was "relatively close to the vehicle and did not see anyone in that area of the strip mall or behind where he was pointing his gun."
"His assessment was reasonable in the circumstances," the decision reads.
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