The family of a man gunned down by police are looking for answers after their loved one died in the encounter. They are becoming increasingly frustrated with law enforcement’s changing story.

About the Tragic Events

On August 14, 2023, a Philadelphia police officer shot and killed a man. The initial statement made by Philadelphia Police Commissioner Danielle Outlaw was the decedent stepped out of the car and had a weapon in his hand, according to CNN. The shooting officer made the statement to a supervisor of the Philadelphia police. However, later there was a video dump of the body-worn cameras on the officers on the scene, which clearly showed the man in the vehicle when he was shot. Further, when the decedent and the vehicle were later searched, two small knives were found in the car—no weapons on his person or firearm.

The decedent was named Eddie Irizarry, and the officer’s identity was not released.

On August 22, 2023, the police announced a new video showing the officer exiting his vehicle, approaching the decedent, and shooting the decedent while he was in his car. Now, we know the windows were up in the car when the officer discharged his weapon, so even if the decedent had knives in his hand, the shooting was NOT justified.

Legal Analysis

Under U.S.C. 1983, we would sue the officer for excessive force. The question for today is: How would the first statement be admissible in a civil case of the estate against the officer? This is a very difficult issue. However, once the supervisor who initially took the statement is identified at their deposition, we should be able to get them to reveal the entire statement, how the statement was made, who made the statement, and if anyone else was present at the interview. This type of police misconduct cannot be tolerated. When this type of police brutality occurs, we must hold the officer accountable. How is the statement admissible? We call it an admission of a party or opponent, but in state and federal court, it’s called an opposing party’s statement, an exception to the hearsay rule.

Here is the version from the Pennsylvania Rules of Evidence.

Rule 803(25). An Opposing Party’s Statement.

(25) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement may be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E) Pa.R.E. 803(25) differs from F.R.E. 801(d)(2), in that the word ‘‘must’’ in the last paragraph has been replaced with the word ‘‘may.’’

All we need is the supervising officer who took the initial statement to testify at a deposition and in court, and the initial statement is an admission against the officer. If we are in federal court, the jury must consider the initial statement in their deliberations, but in state courts, they may consider it. In this case, it’s not much different. Also of note, the statement is not offered for the truth of the matter, so a hearsay exception may not apply. The statement is really offered for his state of mind, so it might be admissible regardless of this rule.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.