The High Court of Justice on Monday showed that it was taking seriously the claim of a Palestinian's family that the presumed August 4 terror attack in which he overturned a bus with a bulldozer was actually an accident.
The family of the Palestinian, Muhammad Naif el-Ja'abis, who was shot and killed on the spot, has tried to block the IDF from demolishing the family house due to Ja'abis' actions.
They have argued that he was shot before overturning the bus and that the bulldozer was operating without his direction when it overturned the bus.
In other words, the family has said he was shot, died and then his otherwise lifeless body fell on or otherwise unintentionally activated the controls in a way that overturned the bus.
As such, the family has argued Ja'abis was not a terrorist and could not, as a mere dead body and instrumentality of the bulldozer attack, be held responsible which would also save the family from any house demolition.
In a hearing on the issue on Monday, the family's lawyer said that the state's narrative of the terror attack had been that shots were fired on Ja'abis only after the bulldozer overturned the bus.
In contrast, the family presented video footage appearing to show that several shots were fired before the bulldozer overturned the bus.
At least theoretically, this could mean that their narrative could be plausible if not otherwise disproven.
The state argued that the theory was implausible both based on statements from those involved as well as finding that, minutes before the incident, Ja'abis had watched on his cellphone a video of a terror attack on the Mercaz Harav Yeshiva.
Next, the state argued that the bulldozer itself needed several pushes and attempts to knock over the bus, meaning that it could have not have been accomplished automatically without intentional direction by Ja'abis.
It rejected the family's narrative as "utter nonsense" and, absent the claim of it being an accident, said that all other claims by the family have been previously rejected by the High Court in the house demolition context.
The court ordered the state to more fully address and explain the new video footage and interpretation of the footage given by the family.
Further, the court said that certain disputed evidence regarding a cellphone conversation between Ja'abis and his brother needed explaining by the state.
The court gave the state two days to address the newly raised arguments.
While the short time to respond showed that the court is still seriously considering allowing the demolition to go forward, the numerous explanations ordered show that the court is not rejecting the family's claim out of hand.
The family has also sued the state for damages for unlawfully killing Ja'abis based on the idea that since he was out of control with the bulldozer by accident, there should have been warning shots, not immediate shooting to kill him.
The narrative until now has been that Ja'abis commandeered a construction excavator, mowed down and killed a pedestrian, and then overturned a bus in the ultra-Orthodox neighborhood of Shmuel HaNavi.
Ja’abis, in his twenties, allegedly stole the excavator from a nearby construction site and ran over 29-year-old Avraham Wallis, and wounded three other pedestrians, before flipping the bus over, police said.
Wallis, a father of five, lived in the capital’s Mea She’arim neighborhood. He was buried Monday night on the Mount of Olives.
The bus’s Arab driver, Abed Alahi, 31, and a sole passenger were treated along with the other victims for light wounds at the scene before being transferred to Hadassah Hospital on Mount Scopus and Shaare Zedek Medical Center.
Police said Ja’abis, from the Arab neighborhood of Jebl Mukaber near East Talpiot, had a lengthy police record.
The narrative has been that he was killed moments after overturning the bus, upon being shot repeatedly by an officer on site who sustained an injury when he was thrown from the excavator while attempting to turn off the ignition switch.
Magen David Adom paramedic Eli Smadar, who was one of the first emergency responders to arrive at the scene, said he saw Ja’abis’s bullet-ridden body still in the driver's seat when he treated Alahi and the five other victims.
“It then became clear that another person was injured in the attack approximately 100 meters from the bus,” Smadar said of Wallis, who was pronounced dead at the scene.Daniel Eisenbud contributed to this report.