HOUSTON (CN) – A federal judge refused to give Houston permission to appeal his order that it may have established a “culture of recklessness” by finding that all police shootings during a four-year period were justified.
Audry Releford is the father of Kenny Releford, a schizophrenic Navy veteran who was shot dead by Houston police officer Jason Rosemon in October 2012.
He sued Rosemon and Houston for wrongful death and civil-rights violations in October 2014, drawing the Houston Police Department into the national debate on whether cops are properly trained how to handle mentally ill suspects, and if officers are quick to fire because of a lack of punishment for those involved in questionable shootings.
Releford introduced an expert report in his case from William Rathburn, former chief of the Dallas Police Department, who worked as a police officer in Dallas and Los Angeles for 30 years.
Rathburn testified in a deposition that the fact that from 2009 to 2012, Houston found that all 99 officer shootings during that time were justified, except for the three found to be accidents, was “shocking,” “communicates to officers that they can essentially shoot at will,” and “that level of perfection is unattainable.”
Releford claims in court filings that Houston’s decision not to discipline Rosemon for his son’s death adheres to its “policy or custom of finding all intentional officer-involved shootings of people to be justified,” which he says fosters a culture “where officers use excessive deadly force with impunity.
U.S. District Judge Keith Ellison refused to dismiss Releford’s claims against the city and Rosemon in February. He also denied their motion to exclude Rathburn’s testimony.
Rosemon appealed to the Fifth Circuit in New Orleans, arguing that qualified immunity, which protects officers from liability if their actions were reasonable in light of the circumstances, should apply to his shooting of Releford’s son. That appeal is pending.
The officer says he fired because he couldn’t see Kenny’s left hand and thought he had a gun, and says that he didn’t know Kenny was mentally ill.
Though Rosemon didn’t need permission to appeal to the Fifth Circuit, under federal law the city can only appeal Releford’s municipal liability claims if the district court, and an appellate court, give it permission.
Houston asked Ellison for that permission in August via a motion for an interlocutory appeal, which is an appeal made before all claims are resolved.
The city cited a recent Fifth Circuit ruling in which the New Orleans-based court affirmed summary judgment in favor of the city for a widow’s claim that a drunk off-duty Houston police officer fatally shot her husband in part because the city had conflicting policies: One policy required officers to carry guns and intervene in all conflicts, another prohibited them from carrying guns and intervening after drinking alcohol.
An expert in that case compared HPD’s investigations of off-duty police shootings to the New York Police Department’s and issued a report concluding HPD’s clearing of officers in those shootings did not establish the department has a “culture of recklessness.”
The city said its liability in the Releford shooting comes down to one controlling question: “Does the mere fact that during a four-year period, all officer-involved shootings examined were found to be justified shootings, establish a culture of recklessness by the city?”
If the Fifth Circuit answers no to that question, Houston says it will be entitled to summary judgment and dismissal of Releford’s complaint.
But Judge Ellison said on Monday the city is oversimplifying Releford’s claims against it solely based on Rathburn’s testimony.
“Even if the Fifth Circuit answers the city’s question in its favor, the city may still be held liable,” he wrote in a nine-page order. “The court did not rely solely on the absence of findings of unjustified shootings to determine that there may be a culture of recklessness.”
Ellison credited Releford’s inadequate training argument, citing deposition testimony from officer George Guerrero that “exposes an unresolved question about the city’s policy of when force can be used, and how HPD presents that policy to its officers.”
“Guerrero declares that an HPD officer is authorized to use deadly force only when the officer can articulate fear of serious bodily injury. First, Officer Guerrero states the officer’s fear must be reasonable. Shortly after, he says the officer needs to explain his fear, but it does not have to be reasonable,” the ruling states.
Given the disputed facts, Ellison wrote, the question of whether an HPD policy led Rosemon to shoot Releford’s son is best left for a jury to decide.
A spokeswoman for Mayor Sylvester Turner declined to comment on the order.
Also on Monday, a South Carolina judge declared a mistrial after a jury deadlocked following a four-week trial of former Northern Charleston police officer Michael Slager.
Slager, a 35-year-old white man, was fired and charged with murder after a bystander recorded him shooting Walter Scott, who was black.
Scott reportedly ran away from the officer during an April 2015 traffic stop because he was behind on child support.