Augusta County Commonwealth’s Attorney Tim Martin, in the matter of the Dec. 17 officer-involved shooting of Dustin Griffin, is acting more like a defense and civil attorney for the Augusta County Sheriff’s Office than he is presenting as an elected prosecutor representing the people of Augusta County.
Martin’s move on Jan. 7 to exonerate the three deputies involved in the shooting of Griffin, 42, before the Virginia State Police has even completed its investigation into the matter, has a twofold effect – the obvious, removing any criminal exposure for the deputies involved, and then, two, giving the Sheriff’s Office legal cover from any future civil case involving the death that may be forthcoming.
To that second end, the Griffin family has retained an attorney, Elliott Harding, a Charlottesville-based civil-rights lawyer, to represent its interests going forward.
From my review of the facts in the Griffin case, it wouldn’t surprise me to see a civil suit eventually filed here – and in fact, it would surprise me if we don’t see that at some point down the road.
Criminal case
Let’s start here, to get the part of the case that Martin wants to get out of the way, you know, out of the way.
A criminal case, for Martin, as the elected prosecutor, was always going to be tough, if Martin were to have been expected to show any interest in pursuing criminal charges, which, given his public statements on the Griffin shooting, and his close relationship with the sheriff, Donald Smith, never was at play here.
ICYMI
On this point: Martin tried to offer an observation to me, in a phone interview on the Griffin case on Jan. 8, that some elected prosecutors run for office on the idea that they will work to hold the sheriff and police in their jurisdiction accountable.
I replied to him that, fair to him or not, no one in Augusta County would have that impression of his approach to matters involving Smith and the Sheriff’s Office.
But let’s assume, for the sake of argument, that another prosecutor who would want to actually pursue blind justice in matters involving local law enforcement was in office here for a sec.
This one would be tough, as I said above.
Video
From the videos released last week by Smith from body and dash cams, we can see Griffin produce a gun, and as he and one deputy are wrestling on the ground, Griffin appears to fire a shot, and we can see that the deputy is struck in the shoulder.
Now, again, we don’t have the final report of the State Police, which is handling the investigation, as is protocol in officer-involved shootings involving local agencies, to know for sure that ballistics tests have confirmed that the bullet that struck the deputy did, in fact, come from Griffin, but let’s presume it did, again, for the sake of argument.
ICYMI
The actions of a second deputy at the scene, who fired five shots at Griffin’s torso, an effort to neutralize the threat, would then be entirely justified, given the situation, and the perception of active threat.
The questionable move from the group of deputies is the one that followed.
There is four-second gap between the final of the five shots fired by the second deputy, and a shot to the back of the head of Griffin from a third deputy.
None of the released videos give us an angle on Griffin at this moment, and the deputy who fired the final shot, we are told, didn’t activate his bodycam until after firing the headshot.
ICYMI
The problem here, from a criminal-justice perspective, is that we have nothing to work with in terms of video evidence to tell us what happened in the intervening four seconds, which means we’d have to rely on the testimonies of the deputies, as to their perceptions of the active threat that they felt from Griffin, who, again, had been shot five times in the torso, and was presumably facing away from the deputies, when the final shot, to the back of his head, was fired.
If I’m the prosecutor here, I don’t know that I can expect to get a conviction; the case, at this point, is basically the word of three deputies against the nonexistent word of a dead man.
Now, it is noteworthy that Martin didn’t take this approach with his statement exonerating the deputies, in particular, the as-yet unnamed deputy who fired the final shot.
Martin could have said, the deputy who was shot, the deputy who fired the five shots, those guys are in the clear; the third guy, we still have questions.
He didn’t do that.
ICYMI
It’s an uncomfortable fact of life in these United States that convictions against officers in officer-involved shooting cases are exceedingly rare.
Data from the Constitutional Accountability Center tells us that, since 2004, there have been 98 arrests of law-enforcement officers on charges in officer-involved shooting cases, from among the more than 20,000 cases of officer-involved shootings reported over the past 20-plus years.
Of those 98, 35 were convicted – and of that 35, only three had their convictions upheld.
So, yes, the deck is stacked.
Civil case
It might be hard to get a jury to vote unanimously to convict, given what we have now, in terms of evidence; but guilt beyond a reasonable doubt, in a criminal case, is a next-level higher bar than the standard for a civil case – preponderance of the evidence, basically, a better than 50 percent certainty.
I can see myself being the attorney for the Griffin family here thinking I’ve got a strong civil case, based on what we have in terms of evidence.
Also helpful: the U.S. Supreme Court precedent in a 2025 decision, Barnes v. Felix, in which a unanimous court held that determining whether an officer’s use of force is reasonable from a civil-liability perspective requires an analysis of the totality of the circumstances in the situation.
The Barnes ruling overturned the “moment-of-threat rule” – which required a court to look only to the circumstances existing at the precise time an officer perceived the threat inducing him to shoot.
Translated: “moment of threat” isn’t the catch-all that Tim Martin seems to want us to believe it is.
Podcast
I’d love to present to a civil-trial jury the record of interactions between Griffin and the Sheriff’s Office in October and early December, just as a starting point.
The perception that there may have been a standing beef between one of the deputies and Griffin could be helpful.
And then, pressing the deputies, particularly the deputy who fired the final shot, on what was going on in those four seconds between shots, that could take days, in terms of testimony, cross-examination and then redirect.
It’s not hard to argue that Griffin was a threat when he had a gun in his hand after shooting one deputy; was he still a threat after taking five shots to his torso, with four seconds passing, his back to the deputy to the final shot?
Martin addressed this to me in a back-and-forth by email this past Saturday.
“The VSP investigator, who is very experienced, found the deputy’s perception of a present threat at the time he fired that last shot to be credible. His extensive knowledge of police training and his lengthy experience as an investigator carry a great deal of weight in that regard,” Martin wrote in reply to a question from me.
I asked Martin if we were supposed to “just take his word for it and move on with our lives.”
“No, but a bona fide expert, from an independent agency, finds that perception credible,” Martin replied. “He has an incredibly distinguished career in law enforcement and is the best (and brightest) investigator I have ever worked with in my 18+ years. So, his informed, expert opinion does matter. I know there will be lots of opinions out there, most of them uninformed or misinformed, but his conclusions matter to me more than theirs.”
This seems to be why we have three convictions standing from among more than 20,000 officer-involving shootings in the U.S. since 2005.
The Griffin family’s desire for justice was always going to come down to filing a civil suit.
Martin’s forceful exoneration of the deputies involved was not about protecting the deputies in this case from criminal exposure, because in reality, there was none.
It was always about providing early PR aimed at influencing the local jury pool, when things get to that.
If you want to know why I’m writing about this, I’m just trying to balance the scales.
Dustin Griffin case archives
- Augusta County: Man killed in officer-involved shooting; one deputy airlifted
- Augusta County: What happened on Dec. 17 on Parkersburg Turnpike?
- The story of the man killed in Augusta County officer-involved shooting
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Chris Graham
