A Kanawha County judge last week refused to throw out a lawsuit against the West Virginia State Police and the trooper who killed a Mercer County teen nearly three years ago.
Timothy Hill, 18, was unarmed when Senior Trooper B. D. Gillespie shot and killed him in the early morning hours of June 13, 2014 following a brief struggle at the foot of Hill's driveway in Kegley. During the struggle, Gillespie says Hill reached for his gun. Hill was shot twice, once in the head and once in the chest.
About a year after his death, Hill's parents, Michelle and Robert Hill Jr., filed a lawsuit against Gillespie and the State Police alleging Gillespie acted maliciously and in reckless disregard of Hill's rights.
In denying the State Police's motion for summary judgment, Kanawha Circuit Judge Jennifer Bailey wrote that the Hills' lawsuit raises questions that should be up to a jury to decide.
Trial is set for March 13.
The judge also Friday turned down a request by lawyers for the State Police to put the case on hold while they appeal her ruling pertaining to summary judgment to the state Supreme Court.
Attorney Gary Pullin, who represents the State Police, could still appeal the ruling to justices while the case continues.
The State Police and Gillespie argue they should be entitled to "qualified immunity," which protects officers of state agencies and boards from being sued.
Bailey wrote that her analysis over qualified immunity ceased when a question was discovered for a jury.
"A clear question of fact exists, with sufficient factual basis in the record, regarding whether Defendant Gillespie violated Timothy Hill's clearly established rights. Furthermore, a jury could find on Plaintiffs' behalf that one or more clearly established rights of Mr. Hill were violated by the Defendant," the judge wrote.
The Hills, who are represented by lawyers Mike Olivia, Stephanie Mullett and the Berthold law firm, also allege in their lawsuit that the State Police does not properly investigate killings involving its officers. The investigation of Gillespie, as is usually the case, was led by fellow troopers.
A Mercer County grand jury in 2014 chose not to indict Gillespie after an investigation led by a fellow trooper and then Mercer Prosecuting Attorney Scott Ash.
Hill and Gillespie, who both lived on the same street, had at least one previous run-in, concerning Hill riding a dirt bike in the street. About four months before her son was killed, Michelle Hill told a Mercer sheriff's deputy that Gillespie was harassing her son. The Hills say Gillespie watched their son with binoculars and recorded him with a video camera.
The 1 a.m. confrontation that led to Hill's shooting concerned some wet underwear that two other boys had thrown on Gillespie's police cruiser as a prank after they went swimming.
Angela Gillespie woke her husband up at about 11:30 p.m. and said she discovered the underwear on his police cruiser and had seen a group of boys in their driveway. She then got in her vehicle and went searching for the boys.
After she returned, Gillespie, who had already worked a 14-hour shift earlier that day, Bailey wrote in her order Friday, "made the decision to put on his WVSP trooper uniform" and call to place himself on duty.
After patrolling for about two hours, Gillespie came upon three teenage boys walking in the road.
"He decided to pull-over to question the boys, but did not call in his position to the WVSP or turn on his in-car dashboard camera," the judge wrote.
After questioning the boys, who denied the underwear prank, Gillespie dismissed two boys to question Hill alone. It was during the questioning when he decided to arrest Hill.
"The events that follow are uncertain," Bailey wrote.
When Gillespie grabbed Hill's arm, Hill jerked away, cursed at him and went to "jolt off," according to a trooper's report on the investigation into the shooting.
Gillespie says he then sprayed Hill in the face with pepper spray from a distance of about six inches but that it didn't have any effect on Hill.
Clark Crews, a neighbor who was sitting on his porch, ran over and asked Gillespie if he needed help. Crews said he immediately felt the effects of the pepper spray.
Crews pulled at Hill's arm and all three men fell down a hill into a drainage ditch. It's then Gillespie contends Hill began grabbing on his gun holster.
"Defendant Gillespie also says he was in fear for his life, so he unholstered his firearm and shot twice at Timothy Hill," Bailey wrote.
After that, the judge continued, Gillespie "did not attempt to ascertain Mr. Hill's condition. Mr. Hill's body was found later by WVSP investigators to be face-down in the water."
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.