Winder v. Gallardo, 2024 WL 4313652 (5th Cir. 2024)
When Steve Winder accidentally jumped in his pool with his cell phone in his pocket, he went into his house to charge his wife’s old mobile phone so he could use it. After powering up the device, he discovered Facebook messages between his wife Latrisha and her ex-husband. His wife, a member of the National Guard, was currently out of state at a training event. Winder sent her pictures of himself holding a gun to his head — a clear threat to kill himself. Latrisha called her mother, Lou Anne Phillips, and the Young County (Texas) Sheriff’s Department to ask for a welfare check. Phillips went to the couple’s house and removed their minor child from the home before law enforcement arrived.
Deputy Gallardo and Deputy Dwyer responded to the call. Gallardo arrived at the Winder house first, and he immediately heard Winder shouting from inside the house. Gallardo opened the front door but did not enter. Phillips heard the deputy at the door and tried to take Winder’s gun, but Winder became more agitated, yelling, “I don’t give a . This is my home.” (Winder was drunk, with a blood alcohol concentration of .173.)
The deputy called out “Steve” in a louder voice. Winder responded from the bedroom: “What?” Phillips came out of the room saying, “We’re right here. Can I help you?” But she then saw Winder approaching the bedroom door, holding his gun. She told him to “Put it up,” and called out to the deputy, “He’s got a gun.” Deputy Gallardo drew his handgun, radioed “He’s got a gun, he’s got a gun,” and told Winder, “Put it down man, put it down.”
After ordering Winder several times to put the gun down, Gallardo fatally shot Winder. Winder’s wife and estate sued, alleging warrantless entry, excessive force, supervisory liability, Monell liability and a violation of the Americans with Disabilities Act. The trial court dismissed the case, and the plaintiff appealed.
Deputy Gallardo claimed he never entered the house before the shooting. The trial court ruled Winder’s suicidality and possession of a gun created exigent circumstances excusing the need for a warrant to enter the house; the appellate court agreed. Suicidality, the appellate court observed, “presents a tragically common example of exigent circumstances.” The decision continues: “This is not the first time we have encountered a tragic factual scenario like the one present here: a police officer, in an attempt to aid a potentially suicidal individual, entered without a warrant and killed the person the officer was trying to help.” The court held the threat a suicidal person poses to himself may create an exigency that makes the needs of law enforcement so compelling that a warrantless entry is objectively reasonable under the exigent circumstances exception to the warrant requirement.
The appellate court also agreed with the trial court’s conclusion that an objectively reasonable officer would not need to wait for Winder to point the gun at him before using deadly force. The uncontested evidence showed the deputy, who twice exclaimed, “He’s got a gun,” believed Winder was armed as he approached. Thus, the deputy’s use of deadly force was reasonable under the circumstances. The appellate court held there was no underlying constitutional violation to support claims for supervisory or Monell liability and the ADA does not support claims where police officers face exigent circumstances. Moreover, there was no evidence the deputy discriminated against Winder because of a mental illness disability. The court affirmed dismissal of the case.
Many officers can share stories of responding to suicide threats and mental health welfare checks that resulted in a confrontation and perhaps even in use of force. Some agencies question the traditional response and encourage officers to perform a thorough assessment of the threat, considering the possibility of not confronting the subject. (See Should I Stay or Should I Go?, Police Magazine, October 2017.)
Winder’s case presents yet another reason to rethink how we approach suicidal persons.
