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The officers who killed Xzavier Hill will have to answer his mother’s questions

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Xzavier Hill was shot and killed by Virginia State Police officers in Goochland County this January. (Photo courtesy of Latoya Benton)

The Virginia State Police troopers who killed Xzavier Hill have been ordered by a judge to answer several questions his mother Latoya Benton submitted to the court about the night he died.

Hill was 18 years old when Virginia State Police Troopers Benjamin Bone and Seth Layton shot and killed him last January. On Tuesday, Judge Eugene Cheek ruled they must answer the majority of the questions posed by Benton.

Hill was originally pulled over for speeding and evading police in Goochland County. Police claim he was reaching for a weapon when the troopers killed him, but that's contested by Hill’s family and advocates organizing around the case. They point out that according to the multi-jurisdictional grand jury report released by the Goochland commonwealth’s attorney in February, the gun in Hill’s car was jammed and unloaded with the cartridge out of Hill’s reach when he died.

Benton’s petition is part of a legal action she’s pursuing to have her son’s death declared wrongful by the court. Under Virginia law, when a person’s death is caused by “the wrongful act, neglect, or default of any person or corporation,” the families of the deceased can seek those entities to be held liable for damages. Under Rule 4:2 of the Virginia Supreme Court, plaintiffs in Virginia have the right to petition courts to require the testimony of another person.

Bone and Layton will now have to answer 39 of the 59 questions submitted by Benton to the court. Those questions cover the officers’ initial encounter with Hill, their actions at the scene of the killing and details surrounding the location of the gun found inside his vehicle after Hill died.

Benton says she’s surprised and relieved that Cheek is allowing her to ask the majority of the questions she submitted.

“I’m pretty thrilled,” Benton said.

Questions excluded by Cheek include those about the officers’ training and background. The judge also excluded several questions related to what officers did after they shot Hill and about whether the photos attached to the grand jury report accurately represent the gun’s location when it was first located.

Benton said that while she’s comfortable losing the questions about officers’ backgrounds, she objects to excluding questions about what happened to her son after he was shot and about whether the grand jury report can be trusted.

“I think it’s a crucial point in Xzavier’s case because it goes according to their policies and procedures,” Benton said. “And the how they treated my child aspect is obviously very important.”

Hill’s death was ruled justified by a Goochland County grand jury last year. However, his mothers’ attorney asserts that the evidence presented to the jury — and to the public following the hearing — was incomplete. For example, Benton’s lawyer Jacqueline Kramer said only one angle of the available footage of Hill’s death was released.

“The Goochland County commonwealth attorney office’s report, we don’t know that we can take that at face value,”  Kramer said.

Kramer said her client also has concerns about the ability of the Virginia State Police to police itself; the investigation into Hill’s death was handled internally by VSP.

The Virginia attorney general’s office argued in its objection to Benton’s proposed questions that they are an attempt to force a pre-action discovery, pointing to case law from 1962 that they say disallow using 4:2 for the purpose of discovery or to prepare for a case. The rule itself makes no such distinction.

The attorney general’s office also said in its objection that Cheek should not approve any of the proposed questions because the plaintiff “has failed to exhaust her remedies under FOIA.”

The state’s Freedom of Information Act gives Virginians the right to access public records in the custody of public bodies, their officers and their employees. There are a few exemptions that allow governmental bodies to withhold documents, including when they involve active investigations and law-enforcement records.

According to Kramer, that doesn’t apply in Hill’s case, however, because the internal investigation has already concluded. Kramer says she’s already filed a FOIA request for all the information contained in her client’s questions for the officers. Under the act, public bodies have five business days to respond to a request, but for investigative cases they can extend that requirement an additional 60 days. Kramer told Cheek the department opted to delay her request for as long as is legally allowed.

Bone and Layton will be required to answer the majority of Benton’s questions in written form. Once she has that information, Benton’s petition says she can make a determination about whether to move forward with her wrongful death suit.