Judge denies qualified immunity for Sheriff, deputy in 2017 shooting


MOBILE, Alabama — Baldwin County Sheriff Huey “Hoss” Mack and a Baldwin County Sheriff’s deputy have been denied qualified immunity in a civil lawsuit filled by the mother of a Louisiana man who was shot following a single vehicle accident on Interstate 10 in 2017.

U.S. District Court Judge William Cassady, in an order filed April 19, dismissed a Monell liability claim against Mack stating that it was “inapplicable as a matter of law,” but denied the motion for summary judgement made by Mack and Deputy Matt Hunaday writing that “Without question, ‘the standard for excessive force is clearly established,’” against Hunaday, and that “plaintiff has made an adequate showing that this is the kind of recurring situation presenting an obvious, highly predictable potential for violation that can trigger liability for failure to train, even in the absence of a pattern of violations.”

In a press conference held following the May 12 incident, which occurred between the 59- and 60-mile markers east bound on 1-10 between the Wilcox exit and the Florida border, Mack stated that Hunaday, identified only at the time as a 13-year veteran of the department, had been place on administrative leave pending an investigation into the incident.

According to a BCSO release, Jonathan David Victor, 35, of Metairie, Louisiana, was shot after deputies were called because he was reportedly fighting with medical responders who were attempting to treat him on scene.

Several deputies responded to the single-vehicle accident, Mack said, but only one weapon was discharged, a department-issued AR .223 rifle.

Mack stated that they were told that several medical response units were on the scene, including one ambulance and one fire department unit, and that they were dealing with a single individual who was non-complaint.

When deputies arrived on the scene, Mack said, they found Victor in his vehicle, covered in blood, with emergency responders attempting to coax him from the vehicle. After several attempts, Victor exited the vehicle on the passenger side because it appeared that, due to the nature of the accident, he was unable to exit from the driver’s side.

“He appeared to have something in his hand and despite numerous calls for him to drop what was in his hand and get on the ground, he continued to approach the deputy,” Mack said

According to forensic evidence, Mack said, Victor was struck twice, once in the abdomen and once in the leg. Victor was flown to USA Medical Center in Mobile where he underwent emergency surgery, but he was pronounced dead at around 1 a.m. the following morning.

Mack confirmed to reporters at the press conference that no gun was found at the scene, in Victor’s vehicle or on Victor.

In October 2017, a Baldwin County grand jury returned a unanimous finding that charges would not be brought against Hunaday, resulting in his reinstatement.

In a press conference, Baldwin County District Attorney Bob Wilters said the grand jury had cleared Hunady of any wrongdoing.

Wilters said the shooting had also been referred to the Baldwin County Major Crimes Unit for investigation, where it was reviewed by a team headed by Daphne Police Captain Jud Beedy and Detective Chad Lambert with the Gulf Shores Police Department.

Civil action was later filed by Victor’s mother, Donna Chisesi, in the U.S. District Court for the Southern District of Alabama Southern Division.

In a 21-page document filed April 19, Cassady wrote that the summary judgement record “in the light most favorable to plaintiff,” the relevant facts and circumstances known to Hunady on scene were:

Victory had apparently been injured in a one-vehicle accident.

No witness had reported to Hunady, either directly or indirectly, that Victor was armed, only that he was “possibly” armed.

Hunady never attempted to follow up with any of the bystanders, first responders or Victor himself to ascertain whether Victor had a weapon.

Victor remained barricaded in his vehicle for approximately 10 minutes after Hunady arrived even as Hunady repeatedly commanded him to exit the vehicle.

When Victor finally stepped out of the car, a reasonable fact finder could conclude that he was neither aggressive nor threatening to Hunady or anyone else.

Video footage shows Victor taking slow, hesitant, halting steps in the muddy grass of the median, all of which is consistent with someone who has been injured in an automobile accident.

Victor made no threatening statements.

He appeared to hold an unidentified object wrapped in a cloth in his hand, which he did not relinquish despite Hunady’s commands to “drop it.” But there was no particular reason to believe the cloth-wrapped object was a firearm.

“A reasonable finder of fact could conclude from the evidence that it did not look like a weapon and that Victor was not brandishing anything in an aggressive or threatening manner,” Cassady wrote.

Cassady also stated that Hunady’s assertion that he shot Victor because he feared for his own life as well as the lives and safety of other officers, first responders and members of the public is one that a reasonable jury could reject.

“… Hunady and his colleagues were not standing out in the open, but instead had taken cover behind a fire truck,” Cassady wrote. “In the light most favorable to the plaintiff, the record shows that Victor was not aggressive, was not advancing at the time of the shooting, was standing still approximately 20 feet from Deputy Hunady, and appeared disoriented or in shock from the accident.”

Cassady also noted that Victor was within range of Hunady’s Taser, “which he had on his persona and available to deploy at any time had he elected to do so.”

Another relevant consideration, Cassady wrote, is that “during the entire time they shouted commands at Victor from behind the safety of the fire truck, neither Hunady nor any other officer on the scene ever warned to Victor that he would be shot if he failed to comply with commands to ‘drop it,’ ‘stop advancing,’ and the like.”

“If the facts are taken in the light most favorable to plaintiff, then Hunady used deadly force on a subject who was not behaving aggressively, who did not pose an imminent threat to anyone, who appeared dazed and confused after being injured in a car accident, and who was following the officers’ instructions by exiting his vehicle and walking slowly toward them, all because he was holding an unidentifiable object wrapped in cloth in his injured hands,” Cassady wrote. “There is no plausible argument that a reasonable officer would not have known the use of deadly force to be a constitutional violation in those circumstances…. For all of the reasons, Hunady is not entitled to qualified immunity.”

As for Mack’s claim for qualified immunity, Cassady wrote, “There is no dispute that Sheriff Mack was responsible for training BCSO deputied and setting BCSO policy at all relevant times.”

In support of the failure to train theory, Cassady wrote, the plaintiff identified the following defects in BCSO training protocols for deputies:

No specific training on armed, barricaded subjects.

No specific training for subjects who are suicidal or otherwise under severe mental distress.

No de-escalation training of any kind until 2019, two years after this incident.

The plaintiff’s expert also pointed out, Cassady wrote, that the actions of Hunady and the other BCSO deputies on the scene of the day of the Victor shooting reveal “a host of glaring training deficiencies,” including:

The only implementation of a strategy or tactic for dealing with someone presenting as Victor did, was Hunady yelling to Victor that he wanted to help him.

It was clear and obvious that Victor was in some manner mentally compromised yet the BCSO officers did not implement police procedures that were clearly called for and there is no evidence that Mack had ever provided them such training.

I cannot see where, if proper police procedures, tactics and policy were implemented that there would be the necessity for a ‘split second’ decision by Hunady.

A reasonable, trained police officer would handle barricaded subject like Victor by using minimally intrusive techniques, establishing a perimeter, weighing the need to apprehend the subject against the challenges of compelling the subject to submit to police authority , standing down when appropriate, requesting appropriate and specialized resources such as SWAT teams with bullet resistant shields and less lethal munitions, providing psychological services, debriefing witnesses, and so on, none of which Hunady or any of the BCSO officers on the scene followed.

The plaintiff’s expert also concluded that the BCSO deputies failed to follow, and apparently had not been trained in, well-established procedures and protocols for handling suicidal or mentally unstable subjects, such as:

Not barking orders at a subject who does not appear armed.

Calling in crisis intervention teams or other specialized resources with mental illness training.

Not pointing a firearm at the subject.

Slowing it down and taking time to resolve the issue without loss of life.

Cassady concluded that the defendants placed their entire focus on the legal argument that Mack cannot be liable on a failure-to-train theory in the absence of a “pattern of similar unconstitutional conduct by Baldwin County deputy sheriffs.”

“Simply put, defendants say Mack is entitled to qualified immunity because there is no evidence of any such pattern of misconduct, which is a necessary precondition for a finding of deliberate indifference,” Cassady wrote. “The trouble with defendants’ position is that, even under the authorities they cite, such a pattern of violation is not always required.”

Cassady dismissed the plaintiff’s Monell liability claim, “predicated on the notion that, ‘Where a municipality’s failure to supervise causes a constitutional violation, and such a failure reflects deliberate indifference to a constitutional rights,’” stating that the plaintiff sued Mack only in his individual capacity, not his official capacity.

“She has not sued Baldwin County or the Baldwin County Sheriff’s Office, nor has she otherwise sought to impose liability on the County or any municipality for policies that Mack may be alleged to have formulated on behalf of the County, the BCSO or any municipal entity,” Cassady wrote. “Plaintiff has offered no legal explanation how a Monell claim could be proper against Mack in his individual capacity under the circumstances presented here.”