Judge Desai: Arizona Police Negotiators Wrongful Death Dismissal

• A federal judge dismissed constitutional claims against two Arizona police negotiators in a wrongful death lawsuit.
• Officers Matthew Adair and C. Orr were found to lack the duty or ability to intervene in the fatal shooting of Shawn Gagne.
• Claims against the city of Mesa, alleging a pattern of excessive force, were allowed to proceed.
• Judge Sharad Desai ruled that the negotiating officers lacked direct knowledge and authority to halt the use of force.
• The Gagne family lawsuit Mesa cited 10 settlements totaling over $5.4 million and 16 excessive force incidents against the city.

This ruling by Judge Desai clarifies the stringent criteria for establishing liability against police officers for failure to intervene, especially when those officers are in a negotiating capacity and lack direct visual or immediate operational control over an unfolding use-of-force incident.

A federal judge has partially resolved a wrongful death lawsuit filed by the family of Shawn Gagne, an unarmed man who died after being shot over 100 times by police. U.S. District Judge Sharad Desai, a Joe Biden appointee, issued a 14-page order on Thursday afternoon, dismissing constitutional claims against two Arizona police officers, Matthew Adair and C. Orr. However, the judge permitted claims against the city of Mesa to advance, indicating that allegations of a systemic pattern of escalating police interactions warrant further legal scrutiny.

Judge Desai's ruling clarified that Officers Adair and Orr, despite their role in the standoff, lacked both the duty and the practical ability to intercede during the fatal shooting. The judge proceeded with the assumption that the officers who fired the shots likely used excessive force against Gagne, who was unarmed and reportedly attempting to surrender. Nevertheless, the claims against the negotiating officers, Matthew Adair and C. Orr, were dismissed because the plaintiffs failed to demonstrate that these officers possessed knowledge of an ongoing or imminent constitutional violation, or that their alleged failure to intervene directly caused Gagne's death.

During the prolonged encounter, Officer Adair repeatedly urged Gagne to exit his Mesa, Arizona apartment with his hands raised. The situation escalated dramatically after Officer Shawn Freeman initially shot Gagne in the face through a window, followed by a second shot 43 seconds later. Gagne subsequently placed his rifle on a kitchen counter and moved towards the stairs. It was at this point that other officers unleashed a significant volume of gunfire. Gagne, still on the phone with Adair, fell down the stairs, crying out, "I'm down. I'm down." Approximately 15 seconds later, Gagne opened the door, prompting Mesa police officers to fire at least 84 additional bullets. Adair then shouted "weapons down." The Gagne family argued that this command could have been issued much earlier, immediately after the initial shot. However, Judge Desai concluded that the negotiating officers were not in a position to make such a call sooner. They could not observe the interior of the apartment from their vantage point, nor did they witness Gagne disarming himself. Gagne also did not communicate his intent to surrender or that he no longer posed a threat.

Judge Desai emphasized that Adair and Orr's knowledge was limited to Gagne being armed, shots being fired, and Gagne being hit and injured. Given this restricted information, the negotiating officers could not have determined whether the force being used by their colleagues was reasonable. Furthermore, because they were not physically present at the scene, they lacked the capacity to directly intervene or the authority to command officers who were in a more advantageous position to stand down. The court found no allegation suggesting that the shooting officers would have altered their conduct if Adair and Orr had attempted to intercede via radio. This reasoning underscores the high bar for establishing police failure to intervene liability, particularly for officers not directly involved in the immediate use-of-force situation.

In contrast to the claims against individual officers, the Gagne family's allegations against the city of Mesa were permitted to move forward. The family contends that the city exhibits a pattern of escalating confrontations to the highest level of force without proper justification. To support this claim, the lawsuit cited 10 settlements totaling $5,444,000 paid out to resolve claims against officers within the first six months of 2022 alone. Additionally, the family presented a list of sixteen distinct incidents involving alleged excessive force by Mesa Police Department (MPD) officers. Of these sixteen examples, only four involved the shooting of unarmed individuals.

Judge Desai acknowledged that "many of these incidents are not similar enough to this case to warrant consideration." Despite these reservations regarding the direct comparability of the examples, the judge determined that at the motion to dismiss stage—where the court is typically obligated to accept the plaintiffs' pleadings as factual—the provided examples might still be sufficient to legally sustain the claim. The city of Mesa, in its defense, argued that the prior shootings referenced by the plaintiffs involved patrol officers in different operational contexts, rather than SWAT officers, such as those involved in the Gagne incident. This aspect of the Judge Sharad Desai police ruling highlights the challenges cities face in defending against pattern-of-practice claims, even when the supporting evidence is not perfectly analogous.

This ruling by Judge Desai clarifies the stringent criteria for establishing liability against police officers for failure to intervene, especially when those officers are in a negotiating capacity and lack direct visual or immediate operational control over an unfolding use-of-force incident. The dismissal of claims against Officer Matthew Adair and C. Orr reinforces the principle that mere presence or communication during an incident does not automatically create a duty or ability to halt an ongoing constitutional violation, particularly without direct knowledge or authority to command those on the front lines. The court's emphasis on the officers' limited knowledge and physical distance from the immediate confrontation sets a precedent for how police failure to intervene liability is assessed in complex, multi-officer scenarios.

Conversely, the decision to allow the claims against the City of Mesa for an alleged excessive force pattern to proceed is significant. It signals that municipalities may face continued litigation regarding their systemic practices, even if the specific incidents cited by plaintiffs are not perfectly identical to the case at hand. This aspect of the Judge Sharad Desai police ruling suggests that a city's history of settlements and documented excessive force incidents, even if varied in nature, can be sufficient to overcome an initial motion to dismiss, compelling the city to mount a robust defense of its training, policies, and oversight mechanisms. The Gagne family lawsuit Mesa will now proceed against the municipality, focusing on these broader allegations of institutional misconduct.

This ruling clarifies the high bar for establishing liability against non-intervening police officers, particularly those in a negotiating role without direct knowledge or ability to intercede in an ongoing use-of-force incident. However, it also signals that claims against municipalities for a pattern of excessive force can proceed at the motion to dismiss stage, even if the supporting examples are not perfectly analogous, requiring cities to prepare robust defenses of their systemic practices.

Source: Original reporting based on court documents.