By Cleve Wiese

Published: May 9, 2008

A Lyndhurst man’s lawsuit against the Augusta County Sheriff’s Deputy who shot him while serving a search warrant three years ago appears sufficiently well founded to proceed to trial, a judge said Friday.
Augusta County Circuit Court Judge Victor Ludwig said he would reserve judgment until reading all of the case law cited by attorneys during a hearing Friday afternoon, but that his inclination was to deny a defense motion to dismiss the case.
Following a hearing in February, the plaintiff, Jon Painter, 45, amended an earlier complaint against the sheriff’s department as a whole to focus on Deputy Gary Taylor, the officer who pulled the trigger.
Taylor was approaching Painter’s home to serve a search warrant on Feb. 22, 2005 when the front door of the residence opened unexpectedly, according to court documents. He fired a single shot, hitting Painter in the left thigh.
Painter says he was retrieving a soft drink from his car, according to court documents.
Authorities arrested Painter the following day on charges of possessing and distributing methamphetamine and possessing a firearm while possessing drugs. He was convicted and sentenced to 10 years in prison. The term was suspended, or reduced, by eight years and six months. Painter, who is now free, is appealing the conviction.
Taylor’s attorney, Carlene Johnson argued that her client is entitled to sovereign immunity, a protection against legal liability extended to government entities and their employees. Sovereign immunity, which she said was especially applicable because Taylor was serving a court-ordered search warrant, is an important protection for officers who are regularly faced with difficult and dangerous situations, she said Friday.
But sovereign immunity does not apply to instances of gross negligence or intentional misconduct, said Frank Mika, Taylor’s attorney.
“Just because you’re serving a court order doesn’t give you the right to intentionally injure someone who’s not threatening you,” Mika said after the hearing.
Judge Ludwig said he would make an official determination within the next couple of weeks about whether or not to dismiss the case.