By K.C. Myers
Cape Cod Times
BOSTON — Ending a six-year legal saga, a federal judge has ruled in favor of Yarmouth police Officer Christopher Van Ness, finding that the officer did not use excessive force when he shot and killed Andre Luiz de Castro Martins in 2008.
This is the third time Van Ness has been cleared of wrongdoing since the brief high-speed car chase that ended with the fatal shooting of Martins, a 25-year-old who was in the country illegally from Brazil, having overstayed a tourist visa.
In 2008, Cape and Islands District Attorney Michael O’Keefe’s office found the officer acted in self-defense. A subsequent internal investigation by Yarmouth police found Van Ness did not violate any department policies, Chief Frank Frederickson said.
And on Sept. 29, U.S. District Judge Mark Wolf found that the shooting was justified to protect the public’s safety, according to court records.
“This has been a tragedy all around,” Yarmouth Deputy Police Chief Steven Xiarhos said. “There’s the death of a man, and then the tragedy of what happened to an officer and his family. And years later, he’s found innocent.”
The suit was filed in October 2009 by Camila Campos, Martins’ girlfriend and mother of his two children, ages 5 and 2 at the time of his death.
The case went to trial in May but ended in a mistrial when the jury could not reach a verdict.
The judge made the decision to exonerate Van Ness, said the officer’s attorney, Leonard Kesten.
Based on the evidence and case law, Wolf determined that the officer was justified in using deadly force to protect bystanders during a busy night in July from a reckless driver who had disobeyed officers repeatedly, according to court documents.
At around 1 a.m. July 27, 2008, Van Ness was parked on Bayview Street, a side street by Cape Cod Hospital, in West Yarmouth, when Martins drove past at high speed, according to court documents. Van Ness activated his cruiser’s blue lights and siren but Martins failed to stop for him.
Martins had a criminal history. Campos had a restraining order in effect against him at the time. He also had been charged with assault and battery with a dangerous weapon in 2003, which was discharged in 2005, according to Barnstable District Court records. In 2007, he was convicted of leaving the scene of an accident that resulted in property damage and malicious destruction over $250. He also had a list of motor vehicle violations.
Van Ness made a radio call to alert the police department dispatcher that a chase was in progress, according to court records. That recorded call lasted 90 seconds until the shots were fired, court documents say.
Officer Erica Wenberg drove up and blocked Martins’ path, at which point Martins turned onto a lawn at 41 Baxter Ave.
What happened next was the crux of the complaint against Van Ness, the judge wrote.
While Martins was trying to make a U-turn on the lawn, Van Ness rammed a rear side panel of Martins’ car at about 10 mph. The impact caused Martins’ Lincoln to spin counterclockwise. Van Ness testified at the May trial that the Lincoln and his cruiser were then facing each other, with the left side of each car about 5 feet apart, according to court records.
At this point, Van Ness got out of the cruiser and, using his door as a shield, ordered Martins to show his hands.
This was the first time the officer saw there was a passenger, Campos.
After five or six seconds, Martins’ car began to accelerate. Van Ness testified that the car “was coming straight at me,” according to court records. The jury could not come to an agreement on whether the car was really moving before Van Ness fired the shots, court records say.
But the jury did agree that the car was moving when the shots were fired, Kesten said.
Van Ness testified that the car moved past his vehicle at about 8 mph. When the vehicle was about 2 feet away, he fired three shots, the first of which killed Martins.
The car continued past the officer before stopping.
“The officer had less than half a second to decide what to do, before the car would be on top of him,” Kesten said.
Van Ness, who has worked for the Yarmouth Police Department since 2006, declined an interview request.
Campos also said she did not want to comment. Her lawyer, Paul Leavis, could not be reached.
For the Yarmouth police and Van Ness, this has been a difficult chapter.
It was the first fatal shooting by a police officer in Yarmouth in about 30 years, Frederickson said.
“It happens so rarely, you’re never really ready for it,” the chief added. “So it’s made us focus on training, proper equipment and staffing.”
In the wake of the shooting the department also worked to heal a rift with the Brazilian community.
“There’s one big difference between police and other people who work in public safety,” Frederickson said. “They have to be ready to take a life. And it’s very powerful.
“No one wants to take a life,” he said. “It’s nothing he wanted to go through.”
Van Ness “has done remarkably well” continuing to do his job while going through the long court process, the chief said.
“This has affected (Van Ness) profoundly,” Kesten said. “He’s such a good human being. All this stuff has weighed on him heavily. I couldn’t have been happier to make that phone call (with the judge’s decision).”
Copyright 2014 the Cape Cod Times