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9:58 PM Sun, Nov. 18th

Appeals court upholds ruling on 2003 Howell case

PRESCOTT - The U.S. Court of Appeals for the Ninth Circuit upheld a lower court's ruling that the Prescott Area Narcotics Taskforce's acted lawfully in serving a search warrant at the home of Robert and Patti Howell in 2003.

On March 5, 2003, PANT officers forcefully entered the Howell's home on Dameron Street in Prescott looking for the Howells' eldest son, Brian, who was not there. Robert Howell, believing that someone was trying to break into his home, fired a handgun at the front door. The bullet went through the door, hit a metal railing and fell on the front porch. When Howell saw that the people at the door were PANT officers, he dropped his gun and surrendered.

All PANT officers found while searching the Howell home was an empty plastic bag with marijuana residue.

PANT Sgt. Pete Hodap said officers made a "controlled buy" with Brian Howell at the Dameron Street residence 72 hours prior to the 6:30 a.m. raid.

A week later, a grand jury indicted Robert Howell on charges of four counts of attempted first-degree murder, four counts of aggravated assault and one count of weapons misconduct.

"I acted in the only way I could to defend my house and my family. I would never fire at officers intentionally," Howell told The Daily Courier while he sat in the Yavapai County Jail. "When I realized it was the police, I was in horror."

On April 15, 2003, Yavapai County Superior Court Judge Janis Sterling dismissed the four attempted murder charges, but maintained the aggravated assault and weapons charges. A month later, Deputy Yavapai County Attorney Steve Young offered a plea agreement in which he would drop the assault charges if Howell pleaded guilty to a Class 6 felony charge of unlawful discharge of a firearm within city limits. Not wanting a felony on his record, Howell refused. The state then added four counts of endangerment to the original assault and weapons charges.

In the meantime, Howell's attorneys Kenneth Ray and Anthony Shaw filed a civil claim worth $2 million against seven PANT officers and PANT's management committee that includes County Attorney Sheila Polk.

A year and five months after the PANT raid, Sterling dismissed all of the charges because "the execution of the search warrant ... was unlawful and in violation of (Howell's) Fourth Amendment (rights)."

"The action taken by (Howell) was caused by, was the product of, and was part and parcel of the illegal government activity," Sterling ruled.

However, during the civil trial in April 2006, a federal jury said PANT officers did act reasonably in serving the warrant so early in the morning of March 5, 2003. Howell's attorneys then filed a second civil lawsuit, this one in Yavapai County. In June 2007, that jury also ruled in favor of PANT, which led to the appeal with the Ninth Circuit Court of Appeals in San Francisco.

Shaw argued this past April that both the federal and county judges should have determined the legality of PANT's actions themselves instead of turning the question over to a jury. On Wednesday, Chief Judge Alex Kozinski and Circuit Judges A. Wallace Tashima and N. Randy Smith issued a published ruling. Citing the 1983 case of White v. Pierce County, the judges wrote, "If the jury can weigh probable cause, a tricky and legalistic doctrine if ever there was one, then it can also decide whether a warrant was lawfully executed." The judges also rejected Howell's second claim of the courts denying Shaw's motion for summary judgment.

"Obviously, I'm not very happy with the ruling, but this is the first time, for me anyway, to get a published opinion. Usually the you get a memo decision which usually is not written very well," Shaw said Thursday.

"I am very pleased the judges agreed with the two juries that PANT acted properly," Hodap's attorney Thomas Lloyd said. "I was always confident we would get a favorable ruling."

Shaw said he doubts that his clients will want to continue this claim with the U.S. Supreme Court because of the expense and the time it will take for the court to make a ruling if it chooses to do so. Lloyd would not discuss the Howell case further because of pending issues at the state level. Lloyd expects rulings on those issues in the next 20 to 30 days.

Contact the reporter at sdaravanis@prescottaz.com