Officer describes fatal struggle

Kim Smith

Tuesday, Feb. 5, 2002 | 9:27 a.m.

Metro Police Officer Mark Dwiggins told jurors Monday that Eric Payton, who had been pepper-sprayed, struck in the head with a baton and shot twice in the back, continued to fight for an officer's weapon.

Payton died of the gunshot wounds, and his wife, Tammie, and three daughters are seeking damages as part of a wrongful death lawsuit filed shortly after Payton's death Feb. 27, 1998.

Dwiggins said Payton struggled for the weapon even as Dwiggins and another officer sat on the man in an effort to hold him down. Payton didn't stop fighting until he was struck by an officer in the head with a police radio, Dwiggins testified.

The Payton family's attorney, Robert Kossack, alleges Payton's death was manslaughter.

Metro attorney Walter Cannon believes Dwiggins, who was shot in the arm during the incident, and fellow Officer Jeffrey Tabor acted reasonably under the circumstances.

Dwiggins and Tabor were called to the Payton house just hours after other officers received a domestic violence report from Tammie Payton; Eric Payton was named as a suspect.

Dwiggins testified that he thought the call would be an "easy" one. According to the dispatcher, Tammie Payton called 911 complaining that her husband was smoking crack cocaine and was breaking things. She wanted him removed from the home.

Dwiggins told jurors that since a report had been taken earlier in the night, he thought he would simply have to arrest Eric Payton, who, said the officer, was built like a linebacker.

When he and Tabor arrived, Dwiggins said, Eric Payton was clearly angry and was using expletives.

Eric Payton tried to get free as the officers stood on the Payton's second-story balcony, Dwiggins said.

Tabor tried to restrain Payton and, over the next 90 seconds, Payton tried twice to go for Tabor's gun. Payton managed to get Dwiggins' baton and then got his hands on Dwiggins' gun.

Dwiggins said that as he tried to keep his gun holstered, a shot was fired into Dwiggins arm. They continued to struggle on the small balcony, and two more shots were fired.

Tabor said that when he felt the gunpowder from the third shot strike his face, he fired two shots into Payton's back at an angle so as not to hit Dwiggins.

Payton still would not go down, and Tabor tackled him, Dwiggins said. Once on the ground Payton still tried to get Dwiggins' gun, which at some point had been knocked loose.

It was at this time that he struck Payton with the radio, Dwiggins said.