Panel Urged to Advance Case of Elderly Man Killed by Cops

NEW ORLEANS (CN) – A Fifth Circuit panel heard oral arguments Tuesday over an elderly Texas homeowner who was mistakenly shot to death by police five years ago and the judges must now decide if his family’s claims can proceed.

In the early morning hours of May 28, 2014, 72-year-old Jerry Waller was fatally shot in his garage by Fort Worth Police Officer Alex Hoeppner, one of two officers who had arrived to Waller’s house by mistake on a welfare check prompted by a neighbor’s alarm system.

The two rookie cops had set off in separate cars to check on the Havenwood Lane resident whose burglar alarm had been tripped, but they each instead had unknowingly ended up across the street at Waller’s home.

Waller “lunged forward and threw himself at the officer” when he found Hoeppner in his garage, Kenneth E. East, Hoeppner’s attorney, told the panel of judges Tuesday.

East said the gun Waller was shot with “had blood all over it” because Waller had been so close to Hoeppner when he was shot.

East said investigators compiled 600 pages of evidence in the case, though most of it he characterized as “irrelevant.”

Hoeppner described Waller to police investigators as “hostile,” “aggressive,” “very malicious” and as being “no pro-police at all,” court documents say.

“Now that I think back on it and you know, had all this time to think on it; I think his intentions as soon as he walked out that door and saw me, he didn’t want to put the gun down,” Hoeppner told investigators. “I firmly believe he was trying to find a point in time where … when … when he could shoot me … when it was the most beneficial time for him to shoot me.”

Art Brender, who represents the Waller family, told the panel Tuesday that the officers arrived at the Waller house a little before 1 a.m., and by 1:06 a.m. Waller was dead.

Brender said the autopsy report found no gun powder residue on Waller’s body, which indicates Waller was shot from a distance of at least four or five feet.

 The shooting death, Brender said, was not reported for another five hours.

In the meantime, officers searched the Waller house without a warrant, Brender said, and they returned later, with their attorneys, and searched the house again.

Incident reports say that inside the house prior to the incident, Waller was awoken by his wife Kathleen, who heard their dog barking, saw lights flashing in the driveway and suspected their car’s alarm was going off again, as sometimes happened.

“Oh, that stupid thing does that. The lights go off. They do that,” Waller told his wife before getting up, putting on his jeans and going to check on the lights, according to a Fort Worth Star-Telegram report.

When Waller entered his garage, dressed in only his jeans and white socks with no shirt, he encountered Hoeppner, who was checking the property for possible intruders.

“Drop the gun! Drop the gun! Drop the gun!” Hoeppner shouted upon seeing Waller, the Star-Telegram report said.

Meanwhile, Kathleen Waller wondered what was taking her husband so long and decided to get dressed and go down in case the barking dog had bothered the neighbor. As she opened the interior door to the garage, she immediately noticed bright lights.

“And then I came out and I couldn’t believe there were lights everywhere. And people had flashlights … and my husband was lying there on the floor… and the paramedic told me he had a revolver,” she told police.

A Tarrant County grand jury declined to indict Hoeppner on criminal charges in the shooting.

In October 2015, a magistrate judge in Dallas federal court granted requests from attorneys for the officers to suspend discovery in a civil lawsuit brought by Waller’s family. The judge also granted the defendants’ request for qualified immunity.

Qualified immunity shields government officials from being sued for discretionary actions performed within their official capacity, unless it can be proven their actions violated clearly established federal law or constitutional rights.

During Tuesday’s oral arguments, U.S. Circuit Judge Jerry E. Smith, an appointee of Ronald Regan, asked attorney Brender if the Fifth Circuit allows the case to proceed to discovery, “that wouldn’t preclude any officer from asserting a qualified immunity defense, right?”

Brender replied that it would not.

John Brender, who also represents the Waller family, said after the hearing that qualified immunity creates an “unfair situation.”

The officers’ arguments rely heavily on what they refer to as undisputed facts, but if you are shot by the police and there aren’t any witnesses, then the only “undisputed” facts come from the police who shot you, he said.

Art Brender underscored that Waller was killed five years ago and discovery in the case has not yet been done.

A ruling from the Fifth Circuit could at least allow the case to move forward, he said, though when or how they will decide was not clear Tuesday.

Smith was joined on the panel by Senior U.S. Circuit Judge Carolyn Dineen King, an appointee of Jimmy Carter, and U.S. Circuit Judge Don Willett, an appointee of President Donald Trump.

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