Arizona police negotiators dismissed from wrongful death lawsuit

Though casting doubt on the strength of the few examples listed, a federal judge greenlit claims that the city of Mesa has a pattern of escalating police interactions.PHOENIX (CN) — A federal judge dismissed constitutional claims against two Arizona police officers involved in the killing of an unarmed man, but allowed claims against the city of Mesa to move forward for now.Officers Matthew Adair and C. Orr had neither the duty nor ability to intercede when fellow officers shot Shawn Gagne more than 100 times while he attempted to surrender, U.S. District Judge Sharad Desai wrote in a 14-page order published Thursday afternoon.Gagne’s family said in a 2024 wrongful death lawsuit that Adair and Orr, who negotiated with Gagne over the phone during the hourslong standoff a year prior, failed to intervene in violation of Gagne’s constitutional rights.“I will assume, for the purposes of this motion, that plaintiffs have adequately alleged an underlying constitutional violation: that the shooting officers used excessive force when they shot Shawn, who was unarmed and attempting to surrender,” Desai, a Joe Biden appointee, wrote. “Even so, plaintiffs’ claim against the negotiating officers fails because they have not alleged either that the negotiating officers had knowledge of an ongoing or imminent constitutional violation, or the negotiating officers’ failure to intervene caused Shawn’s death.”Adair repeatedly encouraged Gagne to come outside with his hands up both before and after officer Shawn Freeman shot Gagne in the face through the window of his Mesa, Arizona, apartment once, then again 43 seconds later. After those two shots, Gagne placed his own rifle down on the kitchen counter and made his way to the stairs before officers released upon him a “barrage of gunfire.”Gagne tumbled down the stairs, still on the phone with Adair, shouting “I’m down. I’m down.” He opened the door 15 seconds later, to which Mesa police officers responded with at least 84 more bullets before Adair yelled “weapons down.”Gagne’s family claims that order could have come at any moment after the very first shot. Desai said the negotiating officers were in no position to make that call any sooner than they did.The officers could not see inside the windows from their vantage point. They never saw Gagne put down his rifle. Gagne did not tell them that he planned to surrender or that he was coming outside and no longer posed a threat.“Adair and Orr only knew that Shawn was armed, shots were fired, and Shawn was hit and injured,” Desai wrote.Based on the knowledge available to them, Desai reasoned that the negotiating officers could not have known whether their officers were using reasonable force.Because the negotiating officers were not on the scene, Desai said they had no ability to intercede or authority to order officers better positioned than themselves to stand down.“Put another way, plaintiffs fail to allege that the shooting officers would have behaved differently if Adair and Orr had interceded by radio,” he wrote.Gagne’s family also claims that the city of Mesa engages in a pattern of elevating confrontations to the highest level of force available without reason. They point to 10 settlements totaling $5,444,00 to bed claims against officers in the first six months of 2022 alone. They also list sixteen excessive force incidents involving MPD officers.Of those sixteen, only four involve officers shooting unarmed individuals.“Many of these incidents are not similar enough to this case to warrant consideration,” Desai wrote.Still, at a motion to dismiss stage in which a judge is typically obliged to accept pleadings as fact, Desai said the few examples may still be enough to legally support the claim.The city argues that those prior shootings involved patrol officers in different settings, and did not involve SWAT officers like the shooting of Gagne.“Those differences may matter at summary judgment or at trial, but they do not defeat the similarity of the conduct alleged at this stage,” Desai wrote. “And although settlements are not admissions of liability, the significant sums paid by the city indicate that the claims had some merit.”The city also contends that four shootings over five years is statistically insignificant given the number of use-of-force incidents Mesa officers face.“This too, is an argument better suited to summary judgment or trial,” Desai wrote.Neither side immediately responded to requests for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads