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MPD officer AC Smith to argue self-defense in killing of Greg Gunn

Updated: Jul. 26, 2018 at 7:02 AM CDT
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MONTGOMERY, AL (WSFA) - Montgomery police officer Aaron "Cody" Smith is set to stand trial in August for the shooting death of Montgomery resident Gregory Gunn, but before that he will face an immunity hearing, during which his defense team will attempt to prove he acted in self-defense.

After Thursday's hearing, if Smith is granted immunity, a first-degree murder charge against him will be dropped, along with the August trial date.

Montgomery Circuit Judge Greg Griffin, the only Montgomery judge who has not recused himself from the case, will decide whether Smith's use of lethal force was justified. At least 60 witness subpoenas have been sent out to former and current police officers, Alabama State Bureau of Investigation agents, and others to speak about Smith's training and the facts of the case. The defense, former MPD officers Mickey McDermott and Roianne Conner, will present evidence that suggests Smith was acting in self-defense, and the prosecution will make opposing arguments.

Smith's case is one that has drawn national attention since the fatal shooting more than two years ago. It happened during the early morning hours of Feb. 25, 2016; Smith, working solo, was patrolling the Mobile Heights neighborhood when he said he spotted a "suspicious man" walking on the sidewalk, and he pulled over to approach him.

TIMELINE: Gregory Gunn's death and Officer A.C. Smith's arrest

What happened next will be contested Thursday, but SBI Agent Jason Dinunzio testified during the preliminary hearing that Smith told him he ordered Gunn to put his hands on the hood of his police vehicle while he searched him. Gunn complied, though he asked why he was being stopped; during the search, Smith said Gunn elbowed him and began to run away, and it was then that Smith began a chase. Smith said he shot Gunn with his taser, using as many rounds as he had, but he said Gunn kept running, so he brought out his baton. A split on Gunn's scalp indicated he was struck by the weapon, after which Smith said Gunn picked up a five-foot paint roller and swung it at Smith.

That is according to the first interview, conducted a few hours after the shooting. In another interview, Smith told Dinunzio Gunn didn't swing the paint roller at him; he said he backed away when Gunn picked it up, falling over as he did. It was then that he fired his gun, shooting Gunn at least five times. During both interviews, Dinunzio asked Smith if Gunn had threatened him, injured him, if he had a gun, if he charged him, and if Smith was planning on arresting Gunn for any crime when he stopped him. The answer, to every question, was no.

The shooting shook the community, where most of the residents knew Gunn personally. His family said he was not a violent person and, despite a few misdemeanor charges, had stayed on the right side of the law. He cut lawns for a living, and he worked at a grocery store on Southern Boulevard. According to family members, he typically got off work between 10:30 and 11 p.m., then he'd go to his girlfriend's house. He was walking to his mother's home from his girlfriend's on the night of his death. He helped take care of his mother, and his father was a former MPD officer.

Meanwhile, Smith, a 23-year-old patrol officer, had been with MPD for four years. Both of his parents were former MPD officers. On the night of the shooting, his attorney said he had a panic attack at the scene, and needed to be lifted by other responding officers.

The Montgomery District Attorney's Office alongside the SBI acted swiftly, charging Smith with murder five days after the shooting without waiting on a grand jury indictment, an action which is rarely seen. Defense attorney McDermott alleged the decision was made because of political pressure, given the many high profile killings of unarmed men by police officers across the country, and he said his client will "not be sacrificed on the altar of political correctness." He also said Gunn was responsible for his own death when he decided to fight a police officer.

Some have called into question Smith's claim of self-defense, particularly because of evidence founded by an independent forensic pathologist. Dr. Jim Lauridson, hired by the Gunn family, performed a second autopsy on Gunn; he found that Gunn was shot five times, with bullets grazing and going through his arm before hitting him in the chest, killing him. Lauridson said the wounds indicated Gunn was in a defensive position, not offensive. There is also no video of the events leading up to the shooting; Smith said, because he did not turn on his traffic lights when he stopped Gunn, the dash cam was never activated, and there is no body cam footage, with conflicting reports that it "malfunctioned."

It has also never been clear what exactly made Gunn, who was not known to police, "suspicious" to Smith, though several burglaries in the neighborhood had recently increased police patrols in the area, particularly in the early morning hours. McDermott, speaking on Smith's behalf, said officers had been told to make random stops of people in high crime areas, but it is not against the law to decline to speak to a police officer or walk away unless you are being investigated or served with an arrest warrant.

This will be the first time that an officer of the law uses the 'Stand Your Ground' law as a defense in Alabama. Alabama Code states:

A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose.

The law also says that a person is not justified in using deadly force if they are the initial aggressor.

Implemented in several states, the law has been at the center of some hotly debated cases, including the shooting death of Trayvon Martin by George Zimmerman and the recent shooting death of a man after he pushed another to the ground. Both cases happened in Florida.

Campaigns have been launched in Alabama to repeal the law for years. If Smith is granted immunity during Thursday's hearing, the precedent set will cause reverberations through the community and state for years to come. If not, Smith will face a jury of his peers on Aug. 13.

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