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Cops Who Killed Man|Must Face State Claims

NEW ORLEANS (CN) - Five New Orleans police officers who Tasered and shot a suicidal man to death were not acting unreasonably, a federal judge ruled, sending the family's claims to state court.

U.S. District Judge Sarah Vance granted the officers summary judgment.

Vance found Officers Eric Geisler, James Kish, Stephen McGee, Jonathan Parker and Stuart Smith entitled to qualified immunity because the "'reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'"

Plaintiff Tyralyn Harris called 911 in April 2010 for help after her suicidal ex-husband Brian Harris locked himself in their bedroom and told her to take their two children out of the house.

Harris suspected her ex might have taken sleeping pills to end his life.

In the 911 transcript, Harris tells the dispatcher her husband has barricaded himself in a room. "I don't think he want to live no more. I need somebody to come help him," she says.

Harris tells the dispatcher her husband, with whom she had reconciled, doesn't have guns but might have a knife.

"They need to send an ambulance, too, or somebody," she says. "They need to bring him to the hospital because something's wrong with him."

When the officers arrived, Tyralyn Harris and her two children were standing outside the house.

"Tyralyn Harris told them that Mr. Harris was depressed after recently losing his job, that he had locked himself inside their bedroom, that she believed he may have taken an overdose of sleeping pills ... . She expressed concern for the well-being of her former husband but did not express fear for her own, or the children's health or safety," Judge Vance wrote.

Video captured by the Tasers shows the scene before the officers entered the room and after.

Outside the door, "One of the officers, presumably Sergeant Smith, said, 'Come here, I want one gun and one Taser right here,'" the judge wrote.

The video shows the officers forcing the door open, calling out "Brian" and then entering the room.

"Once they entered the room, the officers began yelling 'let me see your hands.' The officers did not verbally identify themselves as police to Mr. Harris, but they were wearing police uniforms," the order states.

Video shows that Harris was in bed with the covers pulled up and not moving. After Harris failed to respond, Officer McGee removed the blanket. Harris was holding a folded knife.

The officers repeatedly yelled for Harris to put the knife down. He told them: "It's not coming down."

The video shows Harris lying in bed and waving his arms around. When he refused to drop the knife, Sgt. Smith ordered Officer Kish to "Tase him."

Kish shot the Taser at Harris but didn't hit him.

A second Taser video lasts 6 seconds and shows Harris standing up while Officer Parker uses a Taser on him.

"Mr. Harris appears agitated and defiant. Officer Parker's Taser attempt apparently failed to work because Mr. Harris did not become incapacitated. Mr. Harris lifted his right hand, holding the knife above his right shoulder in a stabbing position. An officer yelled 'Drop the knife!' Mr. Harris responded, 'I'm not dropping nothing,'" Judge Vance wrote.


The order states: "An instant later, gun shots rang out. Officer McGee had fired three shots at Harris, two of which hit his torso, and one his thigh. McGee used a departmentally issued Glock model 22 semi-automatic handgun.'"

Vance dismissed the family's federal claims but "declines to exercise" jurisdiction over their state law claims.

"As public officials, the NOPD officers are entitled to qualified immunity on plaintiffs' § 1983 excessive force claims unless ... the officers' actions were objectively unreasonable in light of clearly established law at the time of the conduct in question,"' Vance wrote.

"Even if the evidence supports a conclusion that plaintiffs' rights were violated, qualified immunity may still be invoked unless 'the government official violated clearly established statutory or constitutional rights of which a reasonable person would have known.' Manis v. Lawson, 585 F. 3d 839, 845 (5th Cir. 2009)."

Citing that 5th Circuit ruling, Vance's order continues: "'Qualified immunity shields from civil liability all but the plainly incompetent or those who knowingly violate the law.' ...

"'The ''reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.' Graham v. Connor, 490 U.S. 386, 396 (1989). This is an objective standard: 'The question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.' ...

"The NOPD officers contend that their use of deadly force was objectively reasonable. They assert that Brian Harris was noncompliant with their commands that he drop his knife, that they tried less severe use of force, that he got out of bed and was coming toward them with the knife in a menacing position, and that Officer McGee's use of his firearm was necessary to prevent serious injury or death to themselves. Plaintiffs argue that taken as a whole, the officers' actions were unreasonable.

"They point to officers' awareness that Mr. Harris had not threatened his wife or children, was depressed, and had possibly taken sleeping pills. They also argue that to the extent Mr. Harris became agitated or threatening, it was due to provocation by the NOPD officers who roused him from his bed by bursting into his bedroom yelling, and seconds later firing Taser darts at him.

"Although the court finds NOPD's whole approach to this type of situation troubling, in light of controlling law, the court concludes that the use of the firearm was objectively reasonable under the circumstances."

Vance adds: "It is clear from the Taser videos that at the moment shots were fired, Mr. Harris had stood up out of bed, was raising the knife above his head, and was moving toward the officers. It is also undisputed that the bedroom was small and cramped. Mr. Harris appeared agitated and defiant. The officers had twice discharged Tasers at Mr. Harris, and he nonetheless continued to refuse to comply with their commands to drop his knife. ...

"Even drawing all reasonable inferences in favor of the plaintiffs, in the moment he was shot, Brian Harris was moving toward the officers in a small space after being unsuccessfully shot at twice with Tasers, and was brandishing a knife that the officers had repeatedly commanded him to drop. Under these circumstances, the court accepts that the officers reasonably feared for their safety at the moment when Officer McGee shot Brian Harris."

Nevertheless, Vance wrote: "While the bounds of the law dictate this holding, the court notes its serious concern with the officers' actions in this incident. The NOPD's approach to handling a call for medical help was outsized and inappropriate. Tyralynn Harris called 911 for help with a depressed loved one, and NOPD treated the operation as if it were a crime scene. Instead of Tasing Mr. Harris within seconds of entering his bedroom, the officers could have kept a safe distance from him, avoided provocative displays of force, made it clear that they were there to help him, and taken as much time as necessary to talk him into putting down his knife, including waiting for mental help professionals to arrive."

Vance adds: "Judge DeMoss in the Fifth Circuit Court of Appeals has repeatedly urged a change in law enforcement procedures to prevent the deaths of emotionally disturbed people in circumstances similar to those seen here. ...

"The court agrees with Judge DeMoss's conclusion in Elizondo, supra: 'Either law enforcement procedures or our law must evolve if we are to ensure that more avoidable deaths do not occur at the hands of those called to 'protect and serve.'"

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