No Immunity for Cop Who Killed Homeowner

AUSTIN (CN) – A Texas police officer who shot a 70-year-old man to death outside his own front door is not entitled to immunity, a federal judge ruled.
     Austin police Officer Jonathan Whitted fired two deadly shots at John Stanley Schaefer after Schaefer called 911 to report he had killed a neighbor’s aggressive pit bull with his licensed gun.
     State law allows eligible Texans to carry a concealed handgun. Schaefer rebuffed a 911 operator’s request to stash the gun before officers arrived.
     U.S. District Judge Sam Sparks’ Aug. 5 ruling allows Schaefer’s son to pursue his excessive force and failure to train lawsuit against Whitted and the city of Austin.
     Sparks denied Whitted summary judgment, citing forensic evidence and a Citizens Review Panel’s report that found him responsible for creating a deadly situation due to his “inept disarming technique.”
     “The circumstances of the unprovoked assault and shooting described in the amended complaint are sufficiently grievous to compel the court to deny qualified immunity at the motion to dismiss stage because a reasonable officer would have known the degree of force used was unconstitutionally excessive,” Sparks wrote in his 26-page order.
     According to court documents, Whitted entered Schaefer’s back yard without permission on March 1, 2013 to confirm the existence of the dead pit bull. He took a position a few feet from Schaefer’s front door and asked dispatch to tell the homeowner to “step out.”
     Before the dispatcher could reach Schaefer, the homeowner stepped out of his front door with his gun holstered. Whitted grabbed his left arm to try to take the gun from its holster, without identifying himself as a police officer, and without warning.
     “In response, and in self defense, Schaefer extended his left arm to repel Officer Whitted’s advance while simultaneously securing his gun with his right hand and taking it ‘out of his waistband,'” Sparks wrote in his recap of the case. “According to Officer Whitted’s police report, Schaefer pivoted to face him squarely and then directly pointed his gun so Officer Whitted was ‘looking down the barrel.’ At this point, Whitted shot Schaefer two times in the chest, killing him.”
     A Travis County grand jury cleared Whitted of wrongdoing and declined to indict him in June 2014.
     Schaefer’s son filed a wrongful death suit in February this year, seeking damages from Whitted for Second Amendment violations, unlawful search and seizure and excessive force.
     Sparks allowed only the Fourth Amendment excessive force allegations to move forward, finding the officer did not violate clearly established law under the Second Amendment.
     In denying immunity, Sparks cited Whitted’s use of violence before ordering Schaefer to put down his gun, a move that “forced or induced Schaefer to instinctively move to secure his weapon.”
     “There was no need to forcefully attempt to disarm Schaefer absent any verbal warning and it is plausible doing so was more than mere negligence,” Sparks wrote. “Consequently, even if Officer Whitted was ultimately justified in believing his life was in jeopardy at the time he fired the fatal shots, he can still be held liable for recklessly abusing his power to generate the threat he seeks to use as the basis for his shooting.”
     He set trial for March 2017, absent a settlement agreement.
     The Texas Legislature in June modified the state’s lax gun laws to allow open carrying of handguns in public and concealed handguns on state university campus. The new measures take effect in 2016.

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