Now that officer, James J. Rode, is the subject of a federal grand jury investigation. A $10 million claim has also been filed against him and the Scottsdale Police Department by the five men, who were never charged in the incident.
Rode may be indicted for assault, a charge his attorney says is motivated by conflict between the tribal police and Scottsdale officers. A tribal detective says that's not true.
Rode says he thought the men were trying to run him over. An attorney for the men says no one was even in the driver's seat of the car when Rode began shooting.
Scottsdale police officers, tribal police and the workers involved in the incident testified before a federal grand jury last week.
Citing the grand jury investigation, Scottsdale police and tribal police declined to comment or release reports related to the incident.
However, copies of the Scottsdale police reports reviewed by New Times show that Rode, a 12-year veteran of the Scottsdale PD, encountered the five men at about 3 in the morning on September 18 at a Chevron station at the corner of Chaparral and Pima roads, just within the boundaries of the reservation.
The five men--Daniel Enos, Alex Kelly, Jason Smith, Alec Waters and Michael Waters--were stopped for gas in a green four-door Chevrolet Cavalier.
According to one witness statement, the five men were "whistling and yelling loudly" and throwing beer bottles at one another, one of which smashed against a wall. One of the men was at a pay phone at the station, while the others were in or near the Chevy.
Rode had stopped for gas on his way home. He was wearing a white tee shirt, black shorts and tennis shoes. He later told other officers he was trying to ignore the men. He paid for his gas, according to the reports, and got in his white Mitsubishi to leave.
As Rode was putting his key in the ignition, he "heard a loud crash and realized they just broke his right rear window," one of the reports says.
Rode called for back-up on his police radio, got out of his car and removed his Glock pistol from the waistband of his shorts.
Gun drawn, Rode then confronted the men and ordered them out of their car. He showed the men his badge and told them they were under arrest. Rode moved around to the front of the vehicle, keeping his gun trained on the men.
Rode said the car then "suddenly lurched forward at him and he shot his gun at the windshield," according to one report. Rode fired his weapon four times into the car's front windshield. All four bullets went into the driver's seat. No one was hit or injured in the shooting.
Rode then ordered the men out of the car and had them lie down on the ground. Another officer arrived and called for more help.
One of the men "began yelling and swearing, saying, 'Hey man, you can fuck off! We didn't do nothin'!'" according to one report.
Rode replied, "You boys just tried to kill a cop, you don't think that's nothin'?" the report states.
More officers arrived on the scene from both Scottsdale and the Salt River tribal police force. A dispute apparently arose between the two forces, and the men were, after about half an hour, taken into custody by the tribal police.
The men were later released. No charges have been filed against them as a result of the incident.
Joseph Chornenky, Rode's attorney, says the officer thought the men were trying to run him over.
But the attorney for the five men, T.J. McGillicuddy, disputes that--because there was no one behind the wheel when Rode fired.
"The evidence would be contrary to that position, in view of the fact that there was no one in the driver's seat. That's borne out by witness testimony, together with the fact that the four shots hit the driver's seat," he says. "That certainly would have killed anyone that was sitting there."
In the claims filed with the city of Scottsdale--the precursor to a lawsuit--the men accuse Rode of firing his weapon without cause. The five men are asking for $2 million each, plus attorney's fees and punitive damages.
Rode "unlawfully arrested, assaulted, threatened and further battered" the men by forcing them to the ground, handcuffing them and threatening to kill them, the claims say.
Michael Waters, one of the men Rode fired at, told another Scottsdale police officer, "We weren't trying to cause any problems. . . . The next thing I know, this guy is yelling at us to freeze. I didn't know nothing about no undercover cops. We were just trying to get out of there. I just wanted out of there and then this guy shot at the windshield four times and I got glass in my mouth."
Chornenky defends Rode's actions. "He did nothing wrong. In my opinion, he acted according to his training," he says. The attorney has also retained a polygraph expert who says Rode is telling the truth when he says he believed his life was in danger, based on an exam of the officer.
Chornenky thinks that the case against his client is politically motivated.
"In my opinion, the only reason the U.S. Attorney's Office is going after this thing is because I think there is some conflict between the Salt River Indian police and the Scottsdale police."
Det. Lt. Karl Auerbach of the Salt River tribal police force, while not commenting on the Rode case, says that his department is only motivated by probable cause.
"I certainly assure anyone that the Salt River Police Department is never motivated politically to investigate any alleged criminal offense," he says.
Rode was reinstated after an internal affairs investigation by the Scottsdale Police Department, Chornenky says, but was placed on leave again after the department was informed he was under investigation by the grand jury. A legal-defense fund has been established by Rode's fellow officers.
The U.S. Attorney's Office, following standard procedure, refused to confirm or deny any grand jury investigation.
