Dallas Police officer Amy Wilburn shot Kelvion Walker -- that much is beyond dispute. Believing he was armed and a carjacking suspect, Wilburn rushed the car Walker was sitting in. Despite, according to witnesses, Walker's hands being up, Wilburn drew her weapon and hit him in the stomach.
DPD brass has called her actions reckless, and Wilburn became the first DPD officer in more than 40 years to be indicted for shooting someone while on duty and was fired by DPD. There is a conflict between statements made by police chief David Brown and others saying Wilburn shot Walker accidentally and statements made by Wilburn herself saying she shot him on purpose.
Walker sued Wilburn in December 2013, alleging that he continues to suffer or has suffered from depression, nervousness, personality change, post-traumatic stress, impotence, numbness and tingling, sleeplessness and problems with his vision in the weeks and months after the shooting. Walker seeks more than $10 million in damages in the suit.
As part of discovery in the civil case, Walker's attorney Geoff Henley sought access to the gun with which Wilburn shot Walker. He wants Wilburn to demonstrate the manner in which she shot Walker using the gun she shot him with, which seems reasonable. The city of Dallas -- who is not a defendant in the lawsuit -- has objected to the gun's being subpoenaed. Bringing the gun in as evidence creates a public safety hazard in an environment as uncontrolled as civil lawsuit depositions, according to the city. The city also worries that the use of the gun in the civil case might jeopardize its value as potential evidence in the criminal case against Wilburn.
"I wanted to have her demonstrate how she deployed her gun that day," Henley says. "I wanted to see how she handled it, how she used it and show us. The city opposed that. I understand their security concerns. Those can be addressed, but in the process, we learned that the gun had been taken out of the normal chain of custody."
According to emails sent by the Dallas city attorney's office to Henley, the department, prior to Henley's subpoena, had reissued Wilburn's former service weapon to another officer. After the subpoena, sent last month, the gun was returned to the property room.
"I hope that this was just a screw up, I genuinely hope that, but if there's a suggestion of, or if there's evidence that somebody did this with the intention of somehow or another impairing the prosecution or impairing this case, there's a severe problem [at the police department]," Henley says.
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According to reporting from WFAA's Tanya Eiserer, the gun Dallas police officer Cardan Spencer used to shoot Bobby Bennett was similarly reissued. Spencer was indicted less than a week after Wilburn.
George Milner, a former prosecutor, told Eiserer that, given it's happened twice, he doubts the guns were reissued by mistake.
"It's outrageous," Milner said. "It defies the most basic level of criminal investigation that two guns that are material evidence in two felony prosecutions that were used in shootings somehow go from being evidence to being sent back to the quartermaster unit and issued as service weapons for other officers."
A hearing on the city's motion to quash the gun subpoena is set for Tuesday.