Ninth Circuit: Police didn't violate civil rights of 12-year-old killed in hostage standoff

(CN) — A Ninth Circuit panel has agreed with a lower court that police in Henderson, Nevada, didn’t violate the civil rights of a 12-year-old boy killed during a hostage standoff.

That boy, Joseph Hawatmeh, was killed outside the apartment building where his mother and one of their housekeepers had been murdered.

In a unanimous decision released Friday, the three-judge panel upheld a trial judge’s dismissal of a claim brought by the boy’s father and siblings that police officers violated Joseph’s Fourth Amendment right to be free of excessive force when they shot him as they opened fire on a vehicle in which he was being held hostage.

To succeed on an excessive force claim, U.S. Circuit Judge Holly Thomas wrote, police either would have had to seize the boy by their authority or with physical force, as well as have used excessive force against him. However, Joseph was at no point under the control of the police officers even if he raised his hands in response to a police sergeant’s command, the judge said, because the hostage-taker still had a gun pointed to his head.

“We decline to establish a rule that, for Fourth Amendment purposes, a hostage may at once demonstrate submission to police and remain under the control of a hostage-taker,” Thomas, a Joe Biden appointee, said.

Joseph was killed in the morning of Nov. 3, 2020, outside his family’s apartment in Henderson.

According to the family’s lawsuit, the killing occurred after their upstairs neighbor, who went by the name Jason Neo Bourne, confronted Hawatmeh’s mother Dianne and sister Yasmeen over a complaint the mother had made about noise from his apartment.

Bourne then forced his way into the Hawatmehs’ apartment and shot and killed both Dianne and a housekeeper, Veronica Muniz. He also shot and seriously wounded Yasmeen. A second housekeeper who was in the family’s apartment managed to hide in a bathroom and remained unhurt.

After the shooting, Bourne took Joseph hostage and got into the family’s Cadillac Escalade. He then called 911 from the parked car and rambled for more than 20 minutes to a dispatcher, demanding a helicopter and threatening to shoot the boy.

Police, whom neighbors had also alerted about the situation, soon surrounded the parked Cadillac. The sergeant in charge told one of the officers to “take the shot if you have it.”

After the officer fired a single shot at Bourne, Joseph could be heard screaming in a recording of the incident. Two shots quickly followed.

It was this second round of shots that killed Joseph, according to the Ninth Circuit panel’s recounting of the incident.

Even if the boy’s family had plausibly claimed a constitutional violation, the Henderson police officers would be entitled to qualified immunity, Thomas said, as Joseph’s right to be free of excessive force during an active hostage situation was not clearly established at the time of the violation.

“Plaintiffs have not cited any decision addressing the right to be free of excessive force in a hostage situation,” she explained, nor one “establishing that it is possible for police to conduct a seizure in a two-second window between the time a hostage-taker is incapacitated and the time of the hostage’s own death.”

The panel also upheld the dismissal of the boy’s father claim that police violated his Fourteenth Amendment “liberty interest in the companionship and society of his son.”

That claim requires that police acted with deliberate indifference that “shocks the conscience.”

The appellate court judges rejected the argument that police had enough time to deliberate before shooting Bourne and Joseph. They said that, because Bourne had already killed two people and was threatening to shoot the boy, the police made a split-second decision in a rapidly evolving situation.

“No factual allegation indicates that the officers had anything but legitimate law enforcement objectives in mind when they fired their guns,” Thomas said. “Plaintiffs do not argue that the officers intended to do Joseph harm.”

The other judges on the panel were U.S. Circuit Judges Mark Bennett, a Donald Trump appointee, and Gabriel Sanchez, a Biden appointee.

An attorney for the family didn’t immediately respond to a request for comment on the ruling.

“The City of Henderson believes the Court reached the right decision in this case,” the city said in a statement. “The facts here are horrific. The Henderson Police Officers did everything they could to prevent the tragic outcome. The City hopes the Court’s decision resolves this matter so that all the parties can move forward but will continue to defend the actions of its brave officers.”

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