$15M wrongful death lawsuit against Newport News police officers accused in man’s 2019 killing in his home can begin
A $15 million wrongful death lawsuit brought against two Newport News police officers can move forward now that the criminal cases against the officers are resolved — one ending in acquittal and the other in a conviction — in the 2019 killing of Henry K. “Hank” Berry III.
The civil lawsuit brought by Berry’s family was filed in Newport News Circuit Court late last year. But it has been on hold ever since as one of the two criminal cases proceeded.
Berry was shot and killed on Dec. 27, 2019, during a struggle with officers over a Taser in his Oyster Point condo.
Four officers had responded to his home that night after he repeatedly called 911 out of concern for his son, and they barged into the home without a warrant to arrest him on a misdemeanor charge of abusing the city’s 911 system.
Dwight Pitterson — the patrol officer who first fired a Taser at Berry’s chest — was acquitted of malicious wounding, trespassing and other charges in September 2021. Sgt. Albin Trevor Pearson, who shot and killed Berry during a struggle over the Taser, was convicted of voluntary manslaughter in September and awaits sentencing next month.
Because sworn depositions in civil cases can violate a defendant’s right to remain silent in criminal cases, legal experts say criminal proceedings typically must reach the verdict stage before civil lawsuits can get underway.
The lawsuit accuses Pearson and Pitterson of being reckless and overly aggressive in their actions and asserts that the unarmed Berry “posed no threat to the four fully armed officers” who the complaint maintains illegally barged into his home.
“Defendants had a duty to employ only lawful and reasonable measures in their interactions with Berry,” the complaint said. But their actions constituted “an utter disregard of caution and a complete neglect of Berry’s safety.”
The lawsuit, filed by attorneys Scott Flax, John Fletcher and Mike AtLee, also contends that though the officers knew Berry was struggling with mental health issues, Pearson and Pitterson didn’t allow an officer with crisis intervention training, Krystle Alexander, to do her work.
First, the lawsuit says, Pearson strongly demanded Berry come outside to speak with officers rather than allowing Alexander to handle a conversation at Berry’s doorway.
Second, the suit says, Pitterson improperly deployed a Taser on Berry even as Alexander was making progress in trying to calm him down.
Flax said the attorneys are awaiting a court ruling to change the estate’s administrator from Berry’s mother to his father, following the mother’s death earlier this year. After that, Flax said the lawsuit will likely be served on the two defendants in a matter of days. Under court rules, lawsuits must be served on defendants within a year of filing.
Any settlement or judgment in the lawsuit would go to Berry’s now 12-year-old son.
Though the city of Newport News isn’t named as a defendant in the case, it will likely be on the hook to pay any judgment against the officers. That’s because municipalities nearly always agree to defend employees in legal actions arising from their time on the job.
Chief Deputy City Attorney Darlene Bradberry, who oversees police-related litigation for the office, declined to comment on the case. Pearson’s attorney, James A. Cales III, declined to comment, and Pitterson’s lawyer, Christopher A. Hedrick, could not be reached.
Pitterson was on administrative leave before his acquittal and later returned to work. Pearson was also on administrative leave for more than two years but was terminated after his conviction.
Police Chief Steve Drew cited the pending lawsuit, as well as an expected appeal by Pearson, in declining to comment about whether the department adjusted training or policies following Berry’s death. But he said the department is “always looking” for ways to improve — evaluating policies and upgrading training for various reasons.
“I can’t get into particulars — it would be wrong to do that — but we’re always reevaluating ourselves,” he said. “I believe we’re better today than we were yesterday, and we will be better tomorrow than we are today.”
It was the first case in recent memory of police officers on the Peninsula charged criminally in the killing of a citizen.
Berry first called Newport News police around 4:30 p.m. on Dec. 27, 2019, to report concerns about his then-9-year-old son. His mother said he lost custody of the boy about 10 days earlier following a mental health episode.
Berry first said the boy was “missing,” but he then changed that to say he wanted police to check on the boy after a video call in which the boy had a bruise under his eye.
Pearson and Pitterson responded to Berry’s home and reviewed the video, telling Berry they thought the boy looked fine. Pearson told Berry he had “falsely summoned law enforcement” by reporting his son missing, warning him not to do it again.
Pitterson later talked to the boy’s mother, who told them the boy was OK.
But Berry called police in Fairfax, where he incorrectly thought his son was, with that county’s dispatchers telling him he needed to get Newport News police to verify that a home check was needed. Berry called Newport News again after 7 p.m. and asked for different officers.
But Pearson learned of the calls — a dispatcher told him Berry had called “five times in 10 minutes” — and decided to respond.
Pearson also enlisted Alexander, trained in crisis intervention, to come along, given that the officers knew Berry had a mental health issue, as well as Pitterson and Officer Lemarcus Scott.
The four officers met in the parking lot. Their conversation and following actions were recorded on body camera footage, which was presented as evidence in the criminal trials of both officers. Pearson told them they’d arrest Berry for falsely summoning law enforcement with the series of calls.
Alexander knocked on the door and introduced herself to Berry, and he immediately asked if she wanted to see the video. She said “sure” but then asked Berry to come outside to talk.
“No, I’d rather stand right here,” Berry replied.
“Well, Mr. Berry, you need to come out and talk to us at this point,” Pearson interjected from behind Alexander. “You need to hang up the phone from 911.”
The lawsuit asserts that Pearson should have allowed Alexander to talk with Berry at the door and not take over in an aggressive fashion.
“Rather than allowing Alexander to utilize her crisis intervention training, designed to defuse and de-escalate confrontational encounters with the public, Pearson immediately demanded that Berry come outside,” the lawsuit says.
When Berry resists going outside and steps back to close the door, the officers blocked the door from closing, and Pearson led the chase inside.
A struggle ensued, and Berry ended up seated against the wall in a small hallway off the living room. Pitterson straddled Berry in the front while Pearson was to his right and Alexander and Scott to his left.
“I understand you’re upset, and things are going on,” Alexander told Berry in a calming voice. “But right now, you’re under arrest, and you need to put your hands behind your back, OK? Let’s start with this one, can we start with this hand? ... Mr. Berry, give me your left hand, OK?”
The lawsuit contends that Berry was “fully restrained” and Alexander was “de-escalating the situation” by “coaxing Berry to relax.”
While Berry is sitting still but still not putting his hands behind his back, Pitterson points the Taser to Berry’s chest and deploys it.
Pitterson used the standard Taser mechanism that shoots out barbs, a function not designed for close quarters such as the one here. He could have instead used the Taser’s “drive stun” feature, a pain compliance mechanism in which the device is held directly against the unruly person and fired.
“The manner in which Pitterson deployed his Taser was in direct contravention of the instructions ... and in direct contravention of the training and protocols” that “should have been provided to him by the Newport News Police Department,” the lawsuit maintains.
During the struggle over the Taser, another round was discharged, striking Pearson in the leg. The electrically charged barbs also shocked Alexander, causing her to scream. That’s when Pearson took out his handgun and shot Berry once in the back.
Pearson testified at his recent trial that Berry had gained control of the Taser and that he had no choice but to shoot and defend his fellow officers.
Charles J. Key, a use of force expert and retired Baltimore Police lieutenant, watched the video of the incident at the request of the Daily Press and The Virginian-Pilot.
In normal circumstances, someone getting control of a Taser — or attempting to gain control of it — can justify lethal force under the theory that a Tased officer can be more easily stripped of a handgun, he said.
But all that goes out the window if officers don’t have the right to be in the home in the first place. Key said if that’s the case, Berry would have the right to defend himself. And he said he didn’t think the officers had a legal basis to charge into Berry’s home.
During Pearson’s trial, Judge Margaret Poles Spencer instructed the jury to regard the officers’ attempted arrest of Berry and their entry into his home as “unlawful.” She ruled the arrest was unlawful because the officers had no arrest warrant and no probable cause as Berry didn’t commit the crime in their presence.
Key also said the officers shouldn’t have used the Taser when Berry wasn’t “actively resisting” or “presenting a threat” at the time. Under the case law, he said, a Taser is considered excessive force if someone is merely passively resisting, such as not putting his hands behind his back.
“I think the officer (Alexander) is doing a hell of a job in calming him down because he’s listening to her,” Key said. “So I don’t understand why he was Tased.”
Key added that though the officer’s reasonable perception is what holds legally, he didn’t see anything in the videos to indicate that Berry was in control or gaining control of the Taser.
“From what I’ve seen, I don’t think lethal force was reasonable,” he said.
Peter Dujardin, 757-247-4749, pdujardin@dailypress.com
