CHESTERFIELD COUNTY, Va. — The family of a man who was shot and killed by Chesterfield Police last year is attempting to take legal action against the officer involved, who has previously been sued in an excessive force lawsuit.
The attorney for the family of Charles Byers filed a motion in federal court Tuesday to add Chesterfield County and the officer as defendants in an ongoing wrongful death lawsuit. CBS 6 is choosing not to name the officer, since he was not charged with a crime and there has not been an outcome in the civil matter.
On July 8, 2023, two officers responded to reports of a breaking and entering on Wycliff Court and found Byers holding a hatchet while in the midst of a mental health crisis.
Bodycamera footage showed Byers retreating from officers and not complying with orders to drop the hatchet.
After 45 seconds and one unsuccessful attempt to use a Taser, and as Byers was backing away, an officer fired five gunshots at Byers.
Byers then turned around to run away, and the officer shot two more times at his back.
Five of the seven gunshots struck Byers. He was pronounced dead at the scene.
WATCH: Family says Charles Byers was backing away from police when he was fatally shot
“The police do not have the unfettered authority to shoot citizens because they are holding a hatchet and not complying," Paul Curley, the family's attorney, said. "There has to be something else. There has to be a threat."
Curley alleges the officer violated Byers' right to be free from excessive force, failed to de-escalate the situation, and failed to warn Byers that he would use deadly force.
Virginia Code states an officer should give a warning before using lethal force, if feasible.
“When I saw the video, there's no threat. He was backing away the entire time," Curley said.
But Chesterfield Police disagree with that sentiment.
In a statement posted to social media Tuesday night by Acting Chief Frank Carpenter and Deputy Chief Dave Shand, police described Byers as "threatening" and "unrelenting."
They said officers gave at least 15 commands to Byers to drop the hatchet and gave him time to comply.
Frank and Shand's statement said the officers took "necessary and appropriate actions" and they stood by the officers.
"Our officers have a duty to protect the community and the right to protect themselves, and our officers did both," the statement read.
WATCH: Charles Byers' family to add Chesterfield County, officer that shot son as defendants in lawsuit
But Curley said what he saw in the video paints a different picture, because according to the footage, there are no neighbors or residents seen in the area that Byers is walking toward.
“If Chesterfield can point to a person in this video who was at risk, I would like to see it because there is no one behind Charles. There is no one at risk at all," Curley said. “Either believe the video or believe Chesterfield, because the two stories are different.”
Curley additionally claimed that police knew about this particular officer's "propensity to use excessive force against citizens."
CBS 6 obtained federal court records showing the same Chesterfield officer was sued for excessive force in the past.
A complaint alleged that in 2019, the officer punched a man in the face and pulled him from his vehicle during a traffic stop for a defective headlight, despite the man being nonthreatening, unarmed, and compliant.
According to court transcripts, the officer said this was a "defensive tactic" taught by the Chesterfield Police Department, when asked if it was "normal practice to punch someone in the face... if they haven't cooperated with your request."
The officer argued he was entitled to qualified immunity, but the court rejected that, concluding "a reasonable officer would understand that striking a suspect in the face with a closed fist constitutes excessive force under the facts presented."
The case ultimately settled for an undisclosed amount.
WATCH: CBS 6 viewed the video showing Chesterfield Police shoot, kill Charles Byers. Here's what we saw.
Chesterfield Police spokesperson Liz Caroon did not answer CBS 6's questions about what disciplinary actions, if any, were taken against the officer. She said the department does not comment on pending litigation.
Commonwealth's Attorney Erin Barr said her office has no record of receiving a complaint in this incident. Since 2019 was two administrations ago, Barr said it's possible one was received, but she could not verify either way.
Curley said the action against Chesterfield does not change the family's belief that Byers should have still been in the hospital for mental health treatment at the time of his death.
The initial complaint, seeking $35 million in damages, alleged HCA's Chippenham Hospital and the Richmond Police Department unlawfully and prematurely removed Byers from the hospital, despite him being under an active court order to be held in a psychiatric facility.
On July 6, 36 hours before Byers' death, a Richmond magistrate authorized a temporary detention order for Byers, determining he could suffer harm due to his inability to care for himself.
Temporary detention orders typically require patients to be held for up to 72 hours or after a commitment hearing. Byers was admitted for three hours, and did not have a commitment hearing.
"The actions of the City of Richmond and HCA allowed Charlie, who was under a TDO with a clear warning that he could suffer serious harm due to his mental illness – they were aware of that, and they allowed him to be released. He should not have been in the position to be shot," Curley said.
WATCH: Video reveals what happened to Charles Byers in mental hospital before he was killed by police
Bodycamera footage from inside the hospital showed Byers was arrested by a Richmond Police officer after an altercation between Byers and a nurse and the officer.
According to video and court records, hospital staff were attempting to move Byers to a different floor after he became "aggressive toward staff,' but he did not cooperate with requests to get on an elevator.
After Byers refused multiple times, the officer attempted to handcuff Byers, but he resisted, and allegedly kicked a nurse during a struggle.
The Richmond Police officer arrested him for assaulting a medical worker and took him to jail.
Health investigators faulted the hospital for failing to protect Byers' patient rights and failing to provide high-quality care for a patient incapable of making his own medical decisions.
The investigation revealed Byers was never seen by a psychiatrist and medical workers did not inform the arresting officer that Byers was under a TDO. It also showed the hospital did not tell Byers' family about his forced removal from the facility.
Byers then went before a Richmond magistrate on the assault charge, and the magistrate released Byers back to the public.
John Owen, counsel for HCA Healthcare, said in a statement to CBS 6, "Following his release, Mr. Byers returned to his home in Chesterfield County. Mr. Byers left his home on the morning of July 8th and was involved in an incident with Chesterfield County Police officers that afternoon. To ensure the integrity of the judicial proceedings, Chippenham Hospital is unable to comment further on the litigation, to include the recent motion to add Chesterfield County as a party."
Owen acknowledged Byers was a patient at Chippenham Hospital but was placed under arrest and removed "following the battery of a Nurse and Richmond Police officer."
However, Byers was not charged with battery on a police officer.
CBS 6 also reached out to the lawyer representing the Richmond Police officer named as a defendant in the lawsuit, but he did not have a comment at this time.
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