No Qualified Immunity for Officers Who Shot Escaped Hostage

by | December 21, 2018

Henderson v. City of Woodbury, 2018 (8th Cir. 2018)

Mark Henderson was attending a party in a hotel room when one of the other guests, Demetrius Ballinger, pulled a gun and robbed the partygoers. One guest surreptitiously called 9-1-1 and then hid her phone. The 9-1-1 operator kept the line open and listened to the audio from the motel room through the phone.

Officers did not know which room contained the partygoers, who were now being held at gunpoint. When an officer approached a window, Ballinger pulled the curtain back with the gun barrel. The officer shouted “gun” and backed away.

Henderson saw an opportunity to escape and bolted from the room, running down the hall toward the officers. Officers yelled at him to stop, get on the ground and drop his weapon (he was not actually holding a weapon). The officers fired at him but missed; Henderson dropped to the ground.

Henderson then “pushed himself up with his left hand, and his right hand was obscured beneath his torso.” The officers ordered him multiple times to show his hands and stay down. When Henderson lifted his torso and moved his right arm, the officers fired. Henderson was struck with 12 bullets and died. His mother sued the officers.

The officers asked the court to grant qualified immunity. They argued the totality of the circumstances, especially Henderson’s perceived non-compliance, created a reasonable belief that he posed a serious threat, rendering their use of deadly force objectively reasonable and entitling them to qualified immunityIn contrast, the plaintiff asserted the officers should have recognized Henderson was a hostage, not the hostage-taker. The plaintiff pointed to a key conflict between one of the officer’s statements to investigators made at the scene shortly after the shooting and a later inconsistent statement offered in a deposition.

The trial court granted summary judgment, ruling “the officers’ second use of force presents a closer call” than the first volley of shots but they were still entitled to qualified immunity. The appellate court reversed, holding the “resolution of the conflicting testimony between one officer’s more or less contemporaneous description and all the officers’ subsequent unified deposition testimony is best left to a jury.”

Qualified immunity is not applicable when there are genuine unresolved material facts.

This case raises a question neither the trial court nor the appellate court addressed, but one officers and use-of-force investigators must consider: When should an involved officer be interviewed? Many, including me, firmly hold the best recall of the events is obtained through a proper cognitive interview after a sleep cycle (or perhaps two sleep cycles). The court records give no clue to whether such an approach would have made a difference in this case. However, abundant scientific evidence supports the concept of conducting post-traumatic event interviews after the witness (involved officer) has physically recovered, including having adequate sleep to allow the brain to process memory.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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