VIRGINIA BEACH, Va. - The parents of a woman killed in the crossfire between police and the father of her then 10-month-old son are suing four police officers.
Gina Best and Shaun Lowrance are arguing India Kager's wrongful death resulting from battery, recklessness and gross negligence.
On Wednesday, a judge ruled that there was enough material in the lawsuit for it to move forward.
Deputy City Attorney, Chris Boynton, representing the four officers, argued a demurrer, which essentially states that there is no legal basis for a lawsuit, but a judge overruled that.
The lawsuit states that the defendants used excessive force and had no lawful reason or basis for shooting Kager.
It also states that the defendants should have known that Kager was in no way involved with the alleged criminal activity of Angelo Perry and they should have known that their conduct would have placed Kager in imminent danger of serious bodily injury.
Kager was killed on September 5, 2015 in a 7-Eleven parking lot on Lynnhaven Parkway.
Virginia Beach police officers were in a shootout with Perry, who was sitting in the passenger’s seat of Kager’s car.
Police were watching Perry because he was a suspect in two murders and a home invasion, and a confidential informant tipped off officers, saying Perry was in town to make a hit on someone, according to the Virginia Beach Commmonwealth's Attorney Colin Stolle.
Detectives pinged his phone and undercover officers followed him throughout the beach.
Kager began driving erratically and the couple ended up in the 7-Eleven parking lot off of Salem Road and Lynnhaven Parkway. The parking lot was about two miles from Perry's intended victim, according to Stolle. Officers decided then to try and take him into custody.
Boynton says despite the tragic outcome, police were acting on the knowledge that Perry was on his was to commit a murder.
"Mr. Perry is who put Ms. Kager in harms way," he told News 3. "The city and the Virginia Beach Police Department and its individual SWAT officers acted with duty and dispatch."
Back in March of 2016, Stolle announced that the four officers involved would not be charged, but also said that there was no information that Kager was participating in illegal activity.
Kager's parents' attorney, Kevin Martingayle, says that does not mean the officers involved do not have civil liability.
"It was a bad plan that wasn't executed well and people were put into jeopardy unnecessarily and an innocent person died,"he said.
Boynton also filed a motion for a protective order, arguing the that information requested from the plaintiffs' requires confidential and personal information that may be protected from disclosure.
He says as the process moves forward, he plants to address that with Kager's parents' counsel.
Best told News 3 she was grateful to hear that the case is moving forward, and she will never stop fighting for her daughter's justice.