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Homicide Justified

Commonwealth Attorney determines Barber's death was legal response.

A two-month investigation by Commonwealth Attorney S. Randolph Sengel determined that Lewis Barber's death was a "justifiable homicide." The 10-page report detailed the events of April 27, when Barber was shot and killed by police. It explained how officers devised a plan to lure him into the open and stun him with a non-lethal weapon — a plan that went wrong and left Barber dead.

According to the report, Barber emerged from the house in the afternoon holding a loaded single-action revolver. Later investigation determined that it was fully operational and capable of firing lead ball rounds. After examining the videotape of the incident and interviewing officers on the scene, Sengel determined that Barber never aimed a gun at police officers. Nevertheless, officers felt "grave danger of being shot," and two officers shot Barber before the non-lethal police weapon could be fired.

AFTER ABDUCTING his son at gunpoint outside the Rock-It-Grill on April 26, Barber took his son to their Del Ray home on Wyatt Avenue. Soon afterward, the boy called another family member, explaining that "my daddy has a gun and he will shoot anyone who tries to take me away from him."

Police set up a mobile command unit on Commonwealth Avenue, and the hostage crisis lingered. Fairfax police relieved Alexandria officers during the early morning hours. At 6 a.m., Barber called a family friend and asked her to pick up the son at 8 a.m. for school. But police refused to allow this, fearing for the safety of the boy.

"Don't tell me I am going to have to kill a cop," Barber reportedly responded.

Barber later said that he would release the boy to his regular babysitter or his minister, but police refused both of these options — again expressing concern for the boy's welfare. Police officers spoke with Barber on the telephone several times, and each conversation was recorded.

"I have reviewed the available tape recordings of these conversations," wrote Sengel. "In these conversations, Barber sounded as if he were intoxicated." Police would later find several empty beer cans, an empty wine bottle and a wine box in the house. Mental health experts on the scene concluded that Barber was suicidal, and his demeanor indicated to police that he continued drinking during the incident. A toxicology examination later revealed his blood alcohol content to be 0.21 percent.

Officers put together a plan to use a robot with a bullhorn to lure Barber out of the house and distract him with exploding diversionary devices. They would shoot him with a non-lethal "sage gun," and take him into custody unharmed. But the plan did not work.

The robot dropped the bullhorn on the steps leading to Barber's residence. But Barber was belligerent, and instead of using it to communicate with police he threw it into the street. He pointed the revolver at the robot but did not fire.

Then the plan fell apart.

The officers in charge of firing the sage gun could not carry out the plan because their vision was obscured by material on the front porch and the railing of the porch. Before they could readjust, Barber moved — facing one of the Alexandria police officers who was moving in on him.

According to the report, Barber "extended his left arm outward to his left side, and began to raise his right arm, holding the gun in his right hand." He raised the weapon over his right shoulder.

"It was not pointed at the officers," wrote Sengel.

Then, fearing grave danger, Sergeant Jesse Harman fired a lethal shot at Barber. The bullet struck him in the jaw and exited the back of his neck. Almost simultaneously, the exploding diversionary devices created a distraction.

"Knowing that Barber had a weapon in his hand, and realizing that he could not see what Barber was doing with it only served to heighten Harman's apprehension after Barber turned and faced Harman," wrote Sengel. "Even if Harman could have seen Barber raise the weapon upward in such a manner that it was not pointed at the officers, Harman still would have been within his right to fire."

AFTER BEING SHOT, Barber dropped his weapon and began walking up the steps of his house — toward the boy. Officer Numa Landry fired two more shots at Barber, striking him in the right side of his abdomen. Both shots passed through the same leaf on the end of a branch of a magnolia tree in the front yard. Barber collapsed and died soon afterward.

"Landry indicated that he was preparing to fire when Harman fired first," wrote Sengel. "He stated that because he was able to see the gun Barber had was not yet cocked and was pointed upward, he hesitated, but certainly would have fired if Barber had begun to lower the weapon."

Sengel's analysis that Barber's death was a justifiable homicide was based on a conclusion that Barber's actions on April 27 were reasonably perceived by police officers as a threat to himself and others.

"Barber had already placed the child at great risk by his own conduct, which had prompted the armed standoff with police," he wrote. "To have allowed Barber to retreat into his home while wounded, intoxicated, probably suicidal and certainly able to re-arm himself, and permit him to still be in control of his son whom he feared losing, would have been reckless by any standard. Under the circumstances known to him at the time, Landry's apprehensions were reasonable and justified his use of lethal force."