A civil lawsuit against a former Ball State University police officer who shot and killed student Michael McKinney will proceed after a motion filed by the officer's attorneys was denied Monday.
On Nov. 8, 2003, university police officer Robert Duplain shot McKinney four times in the backyard of a home near the Village. The owner, Jane Poole, called the police because she thought someone was breaking into her house.
It was later determined McKinney had a blood alcohol content of .34 and thought he was at a friend's house. His father, Tim McKinney, filed a civil suit for financial damages on Feb. 10, 2004, claiming Duplain used unreasonable force.
Judge Richard Young denied a motion Monday that sought to dismiss expert testimony that says Duplain fired two shots at Michael McKinney while he was standing in Poole's backyard with his left side/back facing Duplain, according to court documents.
"This expert testimony provides evidence from which a reasonable jury could conclude that Michael McKinney did not charge Officer Duplain before Officer Duplain fired his service weapon at McKinney," Young wrote in his ruling. "If a jury were to believe these experts, Officer Duplain would not be entitled to qualified immunity."
Officer Duplain's attorneys have been trying to get this testimony withdrawn because they believe it does not satisfy a "reasonable degree of medical or scientific certainty."
Young denied those claims and wrote that Duplain's attorneys will have the chance to cross-examine the witnesses to challenge the expert's analysis.
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