Prosecutors in Fairfax County, Virginia, will seek to drop misdemeanor charges and instead secure an indictment against a police officer who used a stun gun on a man he mistakenly thought he recognized.
Tyler Timberlake, who is white, used a stun gun on a Black man, who was disoriented and did not appear combative, on June 5, in the Mount Vernon section of Fairfax County. In announcing his arrest, police released body camera video of the incident.
Edward Nuttall, an attorney for Timberlake, told WTOP that prosecutors will make a motion in District Court on Monday to drop the three misdemeanor charges, with plans to ask a grand jury to hand up an indictment.
“The state wants to nolle prosequi (Latin, for ‘we will no longer prosecute,’) the charges and straight indict,” Nuttall said. “We will oppose.”
Nuttall said prosecutors had not disclosed what charges they would seek, if the judge permits them to drop the misdemeanor counts.
“There have been no plea discussions,” Nuttall said.
Prosecutors can ask to drop misdemeanor charges any time before trial. Currently, Timberlake’s District Court trial on the three misdemeanors is set for July 31.
Asked to reveal what charges would be sought, Antonio Peronace, spokesman for Fairfax County Commonwealth’s Attorney Steve Descano, declined to answer, saying the information would be revealed in court.
Even if prosecutors don’t add charges, having the case tried in Fairfax County Circuit Court would allow a jury to reach a verdict on guilt or innocence, rather than a District Court judge.
Previously, Descano said Timberlake, who has eight years on the force, faced a maximum of three years behind bars, if convicted of the misdemeanors.
On June 9, Timberlake’s first hearing after his arrest, defense co-counsel Brandon Shapiro and Deputy Commonwealth’s Attorney Robert Frank agreed that Timberlake used the nonlethal weapon on the wrong man.
In police video, Timberlake is seen arriving on the scene and walking directly from his cruiser toward the man, who had declined requests from emergency personnel to get in an ambulance.
Immediately after using his stun gun, the officer is heard repeatedly addressing the man as “Anthony.” But the person Timberlake was on top of was not named Anthony.
“He mistook him for someone else,” prosecutor Frank told District Court Judge Susan Stoney, during the June 9 hearing.
Shapiro said the man his client believed was Anthony, and the person he mistakenly shocked, both had extensive criminal records, including felonies.
“They’re saying this was an irrational act,” Shapiro said, adding that Timberlake’s belief of who he was dealing with “is important to the defense.”
In the June 9 hearing, the defense was granted additional footage recorded before, during and after the incident, including cruiser video and Timberlake’s body-worn camera.
The details of Timberlake’s utterances and actions recorded by his camera have not been disclosed at this point.
Timberlake has been free on his own recognizance since his arrest.
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