New evidence emerges in deadly BCSO shooting of unarmed man

Roughly 30 minutes elapsed between the time the Baldwin County Sheriff’s Office (BCSO) was dispatched to the scene of a single-vehicle traffic accident on eastbound Interstate 10 on May 12, 2017, and the time the driver, an unarmed Louisiana man named Jonathan Victor, was shot four times and killed by Cpl. Matthew Hunady.

Volunteer firefighters and paramedics who initially responded to the scene of the accident called BCSO to assist after finding Victor bleeding, acting erratically and uncooperative. Further, several witnesses claim they saw Victor either grab something from the back of his vehicle or conceal an object on his lap and they believed it could be a weapon.

The shooting was investigated by the multi-agency Baldwin County Major Crimes Unit (MCU) and internally by the BCSO. When the case was presented to a grand jury in October 2017, no charges were pressed and Hunady was cleared of any criminal wrongdoing.

At the time, Baldwin County District Attorney Robert Wilters joined Sheriff Huey “Hoss” Mack and members of MCU at a news conference to release the only substantive details of the incident to date to the public, including roughly two minutes of video footage to support a narrative that only Victor — not Hunady or other deputies or employees of BCSO — was responsible for his death.

But according to call logs, witness statements and depositions submitted into federal court last week as part of a civil lawsuit filed against Hunady and Mack by Victor’s mother, Donna Chisesi, BCSO’s response was not as seamless as investigators publicly portrayed. In depositions, attorneys for the plaintiff suggest that despite having ample time to do so, deputies on the scene did little to investigate whether Victor was in fact armed and instead, took a defensive position upon arrival even though dispatchers indicated Victor was mentally unstable.

It is also implied MCU turned over an incomplete investigation to the District Attorney’s (DA) Office, while witness statements appear to have changed over time. At least one statement, provided by a man who acknowledged he could neither read nor write, was at one time critical of the shooting. He told an independent investigator that in the moments before, he clearly saw Victor had no weapon. But just last month, when BCSO obtained a signature from him verifying another statement, the man twice swore that he and first responders both reacted to what they “thought was a gun.”

Chisesi’s lawsuit seeks claims of wrongful death and excessive force against Hunady and liability against Mack for a failure to properly train or supervise deputies “to respond in a proportionate and appropriate manner to injured individuals and/or individuals displaying signs of an altered state of mind.” The defendants have denied the claims and a trial is tentatively set for April. The plaintiffs have until Feb. 8 to reply to the motion for summary judgment and their attorney, J. Samuel Tenenbaum, said he’d withhold comment until that time.

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Minute by minute

In a transcript of call logs between 911 operators and BCSO dispatchers, it appears a 911 operator first relayed the threat of a weapon to BCSO at 5:17 p.m., telling a dispatcher to “step it up” based on what firefighters and paramedics were reporting from the scene.

“They think he has a weapon on his lap,” the 911 operator said, repeating it when BCSO asked for clarification. “That’s what they’re telling us.”

The BCSO dispatcher asked what type of weapon it was and the 911 operator said those on scene didn’t know.

“They’re just kind of backing up away from him.”

The BCSO dispatcher then relayed the information to deputies using a 10-33 code — ten thirty-three — for a possibly armed suspect, noting “the subject has barricaded himself inside the vehicle and he has a weapon on his lap.”

In subsequent communications, 911 operators seemed more uncertain.

“The subject has something in his lap, possibly a weapon of some sort,” a 911 operator related to BCSO. “But it was just a ‘possibly.’ [A witness] said [Victor] has something in his lap and he’s very excited … they’re saying he’s covered in blood and not for sure if he has a weapon or not, but he’s got something in his lap.”

Later, 911 advised BCSO “the patient has jumped in the back of the vehicle and has grabbed something. They can’t tell what it is … I’m not sure if he’s got a weapon now. I don’t know what he’s grabbing in the back.”

At 5:22 p.m., the BCSO dispatcher paged deputies who were en route to relay “the subject jumped in the back of the vehicle. Possibly grabbed something.”

The next call from 911 to BCSO was a message from firefighters.

“The fire department is wanting me to let you know that now the subject is talking to himself, still locked in his vehicle, having conversations,” the dispatcher said. “Altered mental status.”

But BCSO only relayed half of that message to deputies.

“911 wanted to let you know that the subject is totally talking to himself inside the vehicle,” the BCSO dispatcher told deputies at 5:24 p.m. The deputies asked the dispatcher to clarify whether weapons were present and the dispatcher confirmed.

“911 advised that they did see a weapon on his lap. 911 could not advise what type of weapon it was.”

Deputies were logged as arriving on scene at 5:31 p.m. Eight minutes later, with Victor still in the vehicle, they received information from Louisiana law enforcement agencies that he had no criminal history or outstanding warrants for arrest.

At 5:41 p.m., an administrative request was sent to law enforcement officers in Louisiana to go to Victor’s address and gather additional information.

But the next radio communication from deputies on scene to the BCSO dispatcher was at 5:42 p.m. “Shots fired.”

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Eyewitnesses

In the form of a deposition taken Dec. 1, the motion filed last week provides the first public statement from Hunady himself. A retired Navy corpsman and a 16-year veteran of BSCO at the time, Hunady testified that prior to shooting Victor, he had never fired a service weapon in the line of duty.

Hunady received the call from dispatch when he was in Summerdale, about 20 to 25 miles from the scene. With him was Deputy Erik Von Bergen, a recent hire who has since left the department, who was also in training at the time.

Hunady acknowledged he initially responded “as a welfare concern,” but the 10-33 code and other radio communications indicated “that [Victor] was possibly armed and intoxicated and, you know, not cooperating with the requests of the paramedics and firefighters.”

When he arrived on scene, Hunady immediately retrieved his BCSO-issued Ruger AR-15 rifle from the back of his SUV and began gathering information from firefighters and paramedics, but no civilians.

“One of the firefighters made the comment that he was wide-eyed, acting irrationally, talking to himself, and had basically cut off contact with them as they were trying to provide help,” he said.

First responders told Hunady the subject was also “possibly armed,” because “they believed that he had reached in the back [of his car] for something.”

Hunady instructed others to shut down traffic and take cover while he took a position behind a fire engine some 30 to 40 feet away from Victor’s vehicle, while he attempted to establish negotiations or conversation with Victor “verbally and through hand motions.”

Victor emerged from his vehicle — a 2006 BMW X3 — with his hands wrapped in a shirt, outstretched in front of him, holding “something.” In the minute that followed, Hunady had his rifle trained on Victor the entire time, constantly instructing him to stand still, drop to the ground and “drop” whatever was in his hands, but he never used the word “weapon” or “gun.” Victor spoke back, telling the officer to “drop yours.”

As Victor took a few more steps forward — some witnesses referred to it as “hops” or “leaps” — Hunady fired four shots, hitting Victor with each round from roughly seven yards away. Victor was hit once in the hand, twice in the torso and once in the femoral artery. Deputies cuffed Victor while Hunady cleared the vehicle and paramedics immediately began working to treat the gunshot wounds. Hunady himself applied a tourniquet to Victor’s leg.

Hunady told the plaintiff’s attorney Tenenbaum he also had two handguns, a shotgun and a Taser at his disposal, but based on the information he had, he believes he chose the appropriate weapon.

“If [Victor] had stepped out of the vehicle and raised his hands in a surrender position and I could clearly see that he was not a threat or a perceived threat … I would say no, I wouldn’t have used deadly force at that point,” he said. “We never know 100 percent what we’re walking into. All we can do is [use] the information we have and make a reasonable decision at that point.”

Tenenbaum pressed him on the information concerning a “weapon.”

“What’s included in the term ‘weapon,’ [to] your understanding?” he asked.

“Anything that can cause harm or violence,” Hunady answered. “Anything can be used as a weapon” and “any weapon … has the potential to be deadly.”

“It could have been a knife, correct?” Tenenbaum asked.

“It could have, but I believe it was — once again for some reason — I want to say in the call log or in the radio traffic it was announced as a weapon, or a gun, I should say, that he was armed with a gun.”

At one point during the investigation, at least two witnesses gave statements indicating they were certain Victor did not have a gun or a weapon in his hand when he emerged from the vehicle. According to Tenenbaum’s line of questioning, Deputy Van Bergen said he saw Victor with a “black bag in his hand.”

But in a new statement signed last month, Van Bergen omitted that detail and ultimately agreed with other witnesses who saw Victor “pressing out his hands like he was pointing a gun at the deputies.”

“I heard Cpl. Hunady plead with the subject by continually telling the individual to drop what he had in his hands,” Van Bergen declared. “The subject started scanning all of the other officers pointing his hand pressed out at them as if he had a gun. Cpl. Hunady and other officers continued to give verbal commands to the subject to drop what was in his hands and to stay back. The subject, though, started to rapidly advance toward Hunady, I then lost sight of the subject.”

But perhaps the most intriguing testimony came from a civilian witness, Donald Alumbaugh, a flea market vendor who was returning home from Mobile when he saw Victor’s vehicle stuck in the mud and shooting up a “rooster tail.” Before he signed a statement in support of the defendants, he told an investigator working on behalf of the plaintiffs he thought Victor was holding a cell phone.

“I pulled over on the side of the road. I backed up almost to his car. I was going to pull him out,” Alumbaugh said. “I had to holler at him because I guess he was high on something. He just kept holding the car wide open so I kept hollering at him [to turn it off]. Finally, he cut the key off and then he went to … he said ‘I’m leaving’ or something and went to crank the car back up. Well, it wouldn’t crank because it was in drive.

“He rolls the window up and said ‘go away,’” Alumbaugh continued. “I said OK, I’m here to help you. He said ‘go away’ and rolled the window back up, so I did.”

Alumbaugh said he intended to get back in his van and continue driving home, but the fire department arrived and asked him to stay. Alumbaugh was talking to a firefighter about his exchange with Victor when Victor, still in the vehicle with the windows rolled up, got their attention with what “we thought was a gun.”

“He stuck it up at us like a weapon,” he said.

Alumbaugh said he retreated behind his van with firefighters, but his recollection of what happened next differed from other witnesses.

“When [Victor] came out of the car, he still had the shirt wrapped around what we thought was a gun … but it was the strangest thing,” he said. “It was like he was playing video games. He was shooting at them … fake shooting. Well, I knew it wasn’t a gun because I seen the cell phone charger hanging out of the shirt.”

Alumbaugh admitted Hunady was at a different angle than he was and may not have been able to see he was unarmed. But he also said he didn’t feel like BCSO managed the situation perfectly.

“I know you didn’t ask me this, [but] I didn’t think they gave the boy enough time. They were pushing him to hurry and get him out of the car and hurry, hurry … and I think if they would have given him a little more time, it would have never went where it went. If they would have just given him time to, you know, calm down.”

Alumbaugh said he believed Victor was high on drugs because “he was acting like a cat in the headlights” and “he wanted to get out of that situation and get gone.”

Still, he insisted he thought Victor had a cell phone in his hand.

“If [Hunady] had seen the cord, I’m sure he wouldn’t have shot because it looked like he was playing a video game,” he said. “I wasn’t standing close enough to hear the words that much [so] I can’t say for sure … what the kid was telling him.”

Victor was later determined not to have had drugs in his system. Police, however, did mention that “a narcotic” showed up in Victor’s toxicology report during the news conference on Oct. 16, 2017. That information was divulged after a TV reporter asked whether Victor was “high or drunk” at the time of the shooting.

Baldwin County District Attorney Bob Wilters later clarified the substance was Ketamine, which he said was “not one of the normal drugs that we see on a regular basis.” Chief Ed Delmore, chairman of the Baldwin County Major Crimes Unit, then chimed in and said: “It’s abused. It’s a drug that’s abused.”

No one at the press conference informed reporters that Ketamine was administered to Victor by paramedics attempting to save his life or that his toxicology report indicated he was not on any detectable mind-altering substances at the time he was shot by Hunady.

On Dec. 11, 2020, Alumbaugh, who can neither read nor write, told the plaintiff’s investigator that deputies never spoke to him again after that day. But just weeks ago, on Dec. 29, BCSO Sgt. Michael Guall obtained a signature from Alumbaugh on a statement with a much more succinct narrative.

“While waiting on the police officers to arrive, I witnessed [Victor] going back and forth to the front and back seat of the vehicle,” Alumbaugh swore. “The man had a shirt wrapped around which the fireman and myself thought was a gun … When he finally got out of the vehicle, he exited through the passenger side. He came out of the car with the shirt wrapped around what they thought was a gun. It was like he was playing video games. He was shooting at them … fake shooting.”

A note on the declaration claims Gaull verbally read the statement to Alumbaugh before he signed it.

For his part, Sheriff Mack told Tenenbaum that at the time, BCSO had no crisis intervention team and deputies had not been specifically trained in de-escalation techniques. But both the BCSO’s and the Alabama Law Enforcement Agency’s Peace Officers Standards and Training Commission’s programs have elements covering barricaded suspects and the use of deadly force. The BCSO’s Standard Operating Procedure No. 1 covers the use of force, advising officers to “use the least amount of force necessary to render the situation safe.” There was also separate training to deal with someone suffering from mental distress or potential suicide, Mack said.

Further, Mack said it can never be assumed a suspect is unarmed, even if they say they are, but officers “try to assess the situation” and “gather as much information as [they] can, both through internal and external means.”

Mack testified he had an “administrative role” in the internal affairs investigation into the shooting, and he requested that Chief Ed Delmore of the Gulf Shores Police Department activate MCU, the multi-agency organization tasked with investigating officer-involved shootings, capital murders or suspicious murders and in-custody deaths. MCU later submitted its report to the Baldwin County DA’s Office, but curiously, Hunady never provided a statement.

Randy McNeill, an attorney representing Hunady and Mack in the lawsuit, referred to the arguments in his brief on the motion for summary judgment and said he believes the case will be dismissed.

“Keep in mind that this didn’t happen in the peace of the judge’s chambers,” he said. “From the time [Victor] got out of the vehicle, it happened in one minute. The code went out as a 10-33: subject armed. Every single person there believed he was armed. Before the shooting took place, when he got out of the vehicle, when he was in the shooter’s stance, and when he was advancing toward them. You have to operate on the assumption the subject is armed. Are they to operate on the assumption he is not armed and risk the lives of scores of innocent people stuck in traffic? Does that seem like the wise thing to do?”

McNeill believes because there is no constitutional violation on Hunady’s part, Mack will also be absolved. Further, he insists there wasn’t time for deputies to do anything else.

“When the shots were fired, it was 12 minutes that Hunady [had been] on the scene,” he said. “What do you do in this time? You’ve got to look at the situation at hand. [Victor] got out of the car on his own. They didn’t go and snatch him out … they didn’t shoot him in the car … of course, they were asking him to get out but the guy was supposedly bleeding. What was the other alternative? You have an injured man in there. Were they supposed to let him die?”

Lagniappe filed public records requests to obtain access to body camera and other video footage from the scene, but has been denied. The newspaper argued before the Alabama Supreme Court this past summer for the release of those public records and awaits a ruling.