April 18th, 2013 By Hannah McCartney | News | Posted In: Ethics

David "Bones" Hebert Wrongful Death Lawsuit Expanded

Two-year anniversary prompts inclusion of city of Cincinnati, three more CPD officers


Today marks the two-year anniversary of the death of David “Bones” Hebert, the gangly, inked vagabond, crafty burrito-maker, Punk rocker and rascal whose life ended abruptly one night in Northside, when Cincinnati Police Sergeant Andrew Mitchell fired two rounds into Bones’ thin frame.

Bones, who was described by his army of acquaintances as peaceful and thoughtful, left behind a legacy that sparked his friends to form Friends of Bones, a collective formed in response to his fatal police shooting, whose goal is “to support those directly involved in the case, to raise awareness about police violence in our community, and to bring about policy change in police procedures, training, and equipment, while encouraging responsible city leadership.”

That spurred the estate of David Paul Hebert to file a wrongful death lawsuit against Sergeant Mitchell on April 18, 2012, a year after the shooting. According to a press release from Paul Carmack, executor of the Hebert estate, the lawsuit today has been expanded to include the city of Cincinnati alleging Monell Claims (referring to municipal officials unconstitutionally or incorrectly dealing with a police misconduct claim) as well as Cincinnati Police officers Lawrence Johnson, Brian Kneller and Nicolino Stavale, for contributing to an atmosphere of danger. (See the expanded lawsuit in its entirety here.)

Bones was walking his dog, Shady, with a female friend around 3 a.m. the night of his death. Minutes before, a new acquaintance of Bones, Jason Weller, called 911 to report a man described as Bones to have recently stolen a pirate sword from his apartment, leaving Weller bloodied and alone. Although several of his friends admit he was inclined toward rowdy and wreckless behavior when he was intoxicated, but not violent.

Shortly after police stopped Bones and took his official statement, the police report alleges, “Mr. Hebert pulled a 13-inch switchblade knife with a six-inch blade from his pocket, raised his arm, and made a swiping motion with the knife at one of the officers. Sergeant Andrew Mitchell, who was serving as cover officer, drew his firearm as Mr. Hebert turned and stepped toward another officer. Sergeant Mitchell discharged two rounds from his Department-issued firearm, striking Mr. Hebert in left shoulder and left upper chest with both rounds.”

Bones was pronounced dead at the scene, and a toxicology report showed he had a blood alcohol level of .33 and traces of psychedelic mushrooms and marijuana. The investigations following his death — all of which exonerated Mitchell and the Police Department from any fault — brought to light a slew of inconsistencies, including conflicting statements from the officers involved, details about where Bones' knife was ultimately found and discrepancies in Weller's story, all of which form a basis for the current lawsuit. Videos retrieved from a Officer Dawson's cruiser cam also show that officers stood by idly, failing to offer any sort of assistance of resuscitation to Bones, seen here (at the 0:04 second mark, it appears Officer Mitchell kicks Bones' arm to check for consciousness).

Officer Mitchell in 2008 was involved in another police misconduct allegation after the "Bauer Tasing," when he tased an oblivious teenager from his moving police car without any warning or communication. Christopher Bauer, the teen walking home with his hands in his pockets and listening to his iPod, fell forward onto his face, suffering substantial injury.

In the past, Friends of Bones have held fundraisers and community events (often music-oriented, for Bones) to raise awareness about the case and garner support.

A city spokesperson directed CityBeat's inquiry about the expanded lawsuit to the city's law department, which as of Thursday afternoon had not returned a voicemail. This story will be updated if the city provides a response.According to court documents, the case will go before a jury Nov. 11.
04.18.2013 at 08:33 Reply

I met Bones over 20 years ago...as I read this reporter's article and see phrases such as " the gangly, inked vagabond, crafty burrito-maker, Punk rocker and rascal" and referring to supporters of his as "his army of acquaintances"...I wonder how impartial this is...


04.19.2013 at 08:44

Hey Siobhan,

Thanks for reading my blog and for your comments. In preparing to write this (I never met him), I read numerous accounts of Bones, including phsyical descriptions from some of his friends. I tried to represent him the same way he was elsewhere, and I certainly didn't use any of those adjectives with negative connotations. Just stating what appear to be the facts (and I'm generally a fan of inked, gangly vagabonds of all varieties).



04.19.2013 at 07:35

Bones was guilty on all counts. Only thing he wasn't guilty of was trying to hurt anyone, especially not a cop. The word vagabond does have a negative connotation of rootlessness, and it should be noted that Bones lived in Cincinnati a decade and a half, and lived in Portland for 7 years before returning to "his tribe" in his adopted home.
Thanks for this great reporting, Hannah. It's detailed and fact-checked, a welcome respite from the slew of gossip mongering stories claiming without attribution that Bones "lunged at officers" or "swiped back and forth at Johnson" and such nonsense.


04.19.2013 at 07:38

Will this go to print? There is so much more to say about this story you could easily make it a feature.


04.19.2013 at 09:59

It's easy to see biases when you're caught up in a cause.


04.23.2013 at 12:04

Fair enough, German, but it is just as easy to be bias-blind when you are not directly affected. The important thing about the term "vagabond" is that it plays into then Acting Chief Janke's first stigmatization of Bones as an out-of-towner with no local address during his press conference. Demasi would further imply homelessness at the Northside Community Council meet a month later. We feel these characterizations, along with the leak of the toxicology report timed to preempt our first Bonesfest, were part of a coordinated and deliberate attempt to discredit him publically.
The police knew exactly what Bones' local address was. He was living with the cousin of FOP head Kathy Harrell. They learned the address from Weller and Hutchinson's interviews, under the pretext of looking for next of kin. At dawn following the shooting, some five hours before Janke's press conference, detectives violated the curtilage of Harrell's 7 foot stockade fence and seized his van from her property without a warrant and against her consent. They have still not released the van to his estate nor, explained its relevance as evidence.
The word is more than a colorful descriptor; it has a political agenda and rhetoical function. Like the words "lunge," "swipe" and "slash" so often used in these media narratives, it has taken on a life of its own, despite it's complete lack of underlying truth or attestation in the evidentiary record. After two years of fighting this complete bullshit, you can't blame us for being a little sensitive.


04.18.2013 at 08:40 Reply

so which officer took the dog leash off Bones dead hand????


04.19.2013 at 07:25

Bones' last words to Megan Hutchinson were "take care of my dog." She was holding the leash. At some point Shady got loose, probably as Kneller handcuffed her. Mitchell grabbed the leash and tied him up to a neighboring handrail. Mitchell is the one kicking Bones' arm in the video. Stavale is seen later in Dawson's cruiser video intervening in Bones' person. He reported searching Bones for weapons as ordered by Mitchell (Mitchell reported not seeing the knife thrown). All four summaries of officer witness statements in the homicide report conclude by saying officers testified Bones was handcuffed. No officer was ever even asked if he was handcuffed in their recorded interviews, except for Kneller who said he was not cuffed.


04.20.2013 at 05:28 Reply

Glad to see Friends of Bones never giving up on this and helping to keep his name and spirit alive. Wishing the best to those filing the civil suit. And hoping karma forever follows those reponsible for his death.