A federal judge in Mobile has declined to award qualified immunity to Baldwin County Sheriff Huey “Hoss” Mack and Deputy Matt Hunady, defendants in a civil lawsuit filed by the mother of Jonathan Victor, a 35-year-old unarmed motorist who was shot and killed by Hunady after a single-vehicle accident on Interstate 10 in May 2017.
In an order filed April 19, U.S. District Court Judge William Cassady dismissed a single claim against Mack, but denied to grant the defendants’ broader motion for summary judgment. Reviewed “in a light most favorable to the plaintiff,” Cassady wrote, videotapes, audio, and witness statements from the incident leave cause to believe a jury could find that Hunady violated Victor’s constitutional rights, while Mack failed to adequately train his deputies to respond to mental health crises.
According to the record, volunteer firefighters were initially called to the scene of the accident after a witness noticed Victor’s vehicle stuck in the muddy median of I-10 throwing up a “rooster tail” of mud. The witness called 911 after attempting to assist Victor, but being told by Victor to go away. The witness said Victor was bloody and “may have” been armed with a weapon.
Faced with the same lack of cooperation and concerns upon their arrival, responding firefighters called for assistance from the Baldwin County Sheriff’s Office (BCSO). Radio communication indicated Victor was “possibly armed,” and when Hunady arrived, he immediately armed himself with his service rifle and took a defensive position behind a fire truck, some 30 feet from Victor’s vehicle.
Videotape exclusively obtained by Lagniappe during the course of the lawsuit shows that for the next 10 minutes, Hunady held his position and attempted to establish communication with Victor, but did not further investigate the circumstances of the accident or Victor’s behavior. First responders had also established — information that was also relayed to Hunady — that Victor was “acting erratically” and “had something in his hands.”
What happened after Victor stepped out of the vehicle “is a source of profound disagreement” in the court record, Cassady found, noting Hunady and other first responders claimed Victor suddenly emerged from his vehicle and took an “aggressive shooter’s stance.” But Cassady determined the video recordings “can be reasonably construed as portraying Victor’s actions after exiting the vehicle quite differently than the aggressive shooting stance that Deputy Hunady ascribes to him.”
Cassady said to the contrary, Hunady’s dash cam video shows Victor as “unsteady” on his feet. His hands were not “punched out” in front of him, but rather “near his face.” Cassady emphasized that a “reasonable finder of fact could conclude from this video that Victor did not take aggressive action toward Deputy Hunady or anyone else, and that he did not punch out his arms in a shooter stance.”
Although Hunady had been trained on the use of deadly force, the order also found the BCSO “did not have officer training programs for crisis intervention, de-escalation, or for dealing with persons who are suicidal or otherwise under acute mental distress.”
The defendants sought dismissal on the grounds of qualified immunity, which “offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory on constitutional rights.” There was no dispute that Hunady was acting within his statutory authority, so the burden was on the plaintiff to demonstrate Hunady violated a constitutional right of Victor’s and the right was “clearly established at the time of the alleged violation.”
Cassady found the relevant facts included:
• No witness had reported to Deputy Hunady, either directly or indirectly, that Victor was armed, only that he was “possibly” armed.
• Deputy Hunady never attempted to follow up with any of the bystanders, first responders or Victor himself to ascertain whether Victor had a weapon.
• When Victor finally stepped out of the car, a reasonable fact finder could conclude that he was neither aggressive nor threatening to Deputy 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.
• Victor appeared to hold an unidentified object wrapped in a cloth in his hand, which he did not relinquish despite Deputy 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.
“Deputy 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,” Cassady wrote. “After all, Deputy Hunady and his colleagues were not standing out in the open, but instead had taken cover behind a fire truck. 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. It is also significant that Victor was within range of Deputy Hunady’s Taser, which he had on his person and available to deploy at any time had he elected to do so. Another relevant consideration is that during the entire time that they shouted commands at Victor from behind the safety of the fire truck, neither Deputy 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.”
Coupled with a failure to investigate whether Victor was actually armed throughout the entire 15-minute standoff and the knowledge Victor had not committed any known offenses prior to the shooting, Cassady ultimately determined “a reasonable jury could conclude, without running afoul of the judicial deference paid to police officers making split-second decisions in dangerous situations, that Deputy Hunady mismanaged those elements and violated Victor’s Fourth Amendment rights by unreasonably using deadly force to subdue him in a situation that posed no imminent threat.”
“Deputy Hunady had ample time on the scene before the confrontation to marshal resources and devise contingencies to preserve life and maximize safety for everyone involved,” Cassady explained. “He had more than ten minutes on the scene to formulate plans and make arrangements to safeguard the lives of everyone involved. Although defendants protest that ‘Victor controlled the entire scene,’ a jury could conclude that is simply not true. Indeed, it would be reasonable on this record to find that Deputy Hunady controlled the scene by continually commanding Victor to step out of the vehicle, rather than allowing him to remain there until more help (and appropriate specialized resources) could be called.
“Deputy Hunady had time to plan for what would happen if and when Victor did exit the vehicle and behaved erratically (which was entirely foreseeable given the reports of his erratic behavior inside the vehicle before Deputy Hunady arrived on the scene),” Cassady wrote. “He had time to make arrangements for the safety of law enforcement, first responders and members of the public. He had time to speak with witnesses to determine what, exactly, they had seen that might ‘possibly’ have been a gun when they interacted with Victor. He had time to consider non-lethal force options, such as the Taser he was carrying on his person. He had time to consider calling in the BCSO’s negotiation team. All of these elements were within Deputy Hunady’s control, not Victor’s.”
Similarly, even though Mack was not directly involved in the shooting, Cassady determined his liability may be exposed by “a causal connection between the actions of the supervising official and the alleged constitutional deprivation.” Because BCSO did not offer crisis intervention training at the time of the incident, the plaintiff argues Mack showed “deliberate indifference” to Victor’s constitutional rights. But the defendants argued Mack was 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.”
But, “plaintiffs’ evidence is that circumstances like Victor’s are both common and recurring in law enforcement officers’ daily activities, and that there is an obvious potential for a subject’s federal rights to be violated in that situation,” Cassady found. “Indeed, plaintiffs’ expert opines that there were as many as 1,000 officer-involved shootings during the 2015-2018 period involving circumstances such as Victor’s, where the subject appeared to be in a mental health crisis, was not behaving like a criminal offender, exhibited aggressive or strange behavior, and was unarmed. Approximately 29 percent of officer-involved shootings involve these recognized circumstances. As such, 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.”
Meanwhile, Cassady dismissed the plaintiff’s “Monell liability” claim against Mack, because Mack and Hunady are being sued in their individual capacities, and no municipal entity has been named as a defendant.
On April 1, a wrongful death lawsuit was filed in circuit court against Mack, Loxley police officer Stephen Bailey and the town of Loxley for a deadly high-speed, wrong-way pursuit that killed a father, his son, and three other individuals in the car that was being chased. Last year, the daughter of a Fairhope man who was killed in a shootout with the BCSO during an eviction process filed a federal lawsuit against Mack and other deputies, alleging constitutional violations, negligence, excessive force and deliberate indifference to her father’s safety and medical needs, and other counts. The plaintiff is being represented by a new attorney who recently filed an amended complaint.
In Mobile County, former Mobile Police officer Harold Hurst recently reached a $2.5 million settlement with the mother of Michael Moore, a 19-year-old shot and killed during a traffic stop in 2016. The settlement was negotiated after U.S. District Judge Terry Moorer ruled in September that Hurst was not protected by qualified immunity. No criminal charges were filed in any of the cases.
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