Reasonable force

The Supreme Court has ruled that police personnel acted lawfully in self-defence during an armed confrontation that left 18-year-old Jerome Lee dead on Ramsay Road, St Andrew, in August 2004, dismissing a civil claim against the State.

“The court is satisfied that the officers used the degree of force they honestly and reasonably believed was necessary to repel an armed attack. They were acting in the execution of their duty under Section 13 of the Constabulary Force Act,” Justice Sonya Wint-Blair said in her judgment handed down last Thursday.

“There is no proof of malice or lack of reasonable/probable cause as required by Section 33 of the act,” she added.

Lee’s mother, Letecia Lee, acting as administratrix of his estate, had filed the claim under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act. She also sought constitutional and vindicatory damages for an alleged breach of her son’s right to life under Sections 13 and 14 of the Constitution.

The case centred on allegations that Lee, who worked as a security guard, was an unarmed bystander unlawfully shot by a Jamaica Constabulary Force (JCF) officer acting outside the scope of his duties. The defence argued that Lee was fatally injured during an exchange of gunfire between police officers and armed men and that the use of force was lawful and necessary.

Ms Lee told the court that on August 11, 2004, she heard continuous gunshots for about 20 minutes before finding her son lying in a pool of blood on Ramsay Road. She said he had been heading to a standpipe to bathe.

Silbert Hamilton, another claimant witness, testified that he was approximately 60 feet from the scene and saw a police officer, later identified as Sergeant Dorman Whyte, exit 27 Ramsay Road carrying two long guns and fire into a crowd. He claimed that police officers left the area immediately afterwards.

Whyte, leading the police team, testified that he and his colleagues, armed with M16 rifles, had been sent to assist a mobile patrol when they observed three armed men near 27 Ramsay Road who pointed rifles at the lawmen and opened fire. Whyte said the police returned fire in self-defence.

He stated that a rifle with a jammed, spent cartridge casing was recovered inside the premises and that Lee was identified at Kingston Public Hospital as one of the armed men involved in the confrontation. Under cross-examination, Whyte admitted to inconsistencies in his testimony regarding the entry point into 27 Ramsay Road, the movement of the gunmen, and the number of police personnel involved, but the court noted that the inconsistencies did not undermine the core of his account.

The post-mortem report showed that Lee sustained a single gunshot wound entering the back of his torso. Forensic testing revealed elevated gunshot residue (GSR) on the back of Lee’s right hand while trace amounts were detected on Whyte’s hand. Ballistic analysis confirmed that the recovered 5.56mm Colt Carbine rifle was in working condition and had one expended cartridge case matching a test-fired round, showing that it had likely been discharged during the incident.

The court noted that the nature of the wound and the forensic findings contradicted the claimant’s account of indiscriminate firing into a crowd. The judge said that firing an M16 rifle into a group of people without causing multiple casualties was inconsistent with the evidence presented.

The court considered Ms Lee’s evidence as limited as she could only testify to events before and after the shooting and could not confirm her son’s activities during the gunfire. Hamilton’s testimony was also deemed limited: his view was obstructed, he relied on hearsay, and initially, he admitted not seeing the actual shooting.

By contrast, Whyte’s account was corroborated by objective evidence: sustained gunfire, recovery of a recently fired rifle, GSR on Lee’s hand, and reports of injuries to others during the incident. The judge concluded that these factors made the police version of events more probable than the claimant’s account.

The claimant argued that Lee was an unarmed bystander and sought damages, including $300,000 for loss of expectation of life, $3,831,945 for lost years, $240,000 for funeral expenses, and aggravated, constitutional, and vindicatory damages.

The defence contended that Whyte acted in self-defence and in the execution of his duties, supported by statutory immunity under Section 33 of the Constabulary Force Act, which protects officers from claims unless malice or lack of reasonable cause is proven. The defence also argued that the claimant failed to provide sufficient proof of dependency or Lee’s actual earnings, making claims for lost years speculative.

However, the judge held that police personnel are entitled to use reasonable and proportionate force when they honestly believe it is necessary to repel an armed threat and found that there was no evidence of malice, recklessness, or unlawful conduct by the officers.

Consequently, she concluded that Lee was injured during an armed confrontation and that the police acted lawfully. All claims under the Fatal Accidents Act, the Law Reform (Miscellaneous Provisions) Act, and constitutional claims were dismissed. Costs were awarded to the attorney general, to be agreed or taxed.

Lee was represented by attorney Marion Rose-Green, instructed by Marion Rose-Green & Company, while Kristina Jones, instructed by the Director of State Proceedings, represented the defendant.

tanesha.mundle@gleanerjm.com