Hulstedt v Scottsdale: Cops lied; Scottsdale/MCAO still prosecuting innocence

On N0vember 7, 2008 Scottsdale cops shot, brutally dragged, and permanently paralyzed a seriously mentally ill man who called them to ask for the Attorney General to come to his home. They had a come SWAT team help him out instead of allowing his family to talk him down from an agitated, distressed state, and he was holding his baby girl in his arms who was consequently injured when he was shot. 

Sound familiar?

Another Scottsdale cop, James Peters, just retired with full disability pension after shooting and killing John Loxas while he held his grandchild in his arms...sure am glad I don't live in Scottsdale these days.

Here's the original post on David's shooting: 

PROSECUTING INNOCENCE: The shooting of David Hulstedt

A year later a grand jury returned an indictment of David, alleging he had kidnapped and abused his child himself the day the cops shot him. Unfortunately, it appears as if David is still being prosecuted for the alleged crimes that "justified" his shooting. That despite his serious mental illness (he was very delusional when the cops attacked him in his yard), and the findings yesterday by federal judge G. Murray Snow that the cops lied repeatedly in order to justify their shooting, which was all screwed up to begin with (thank god for the video of the whole thing). 

Why is David still being prosecuted? From the file I just read, the cops who shot him are the ones who should be facing prosecution.

David's guardian sued on his behalf, and yesterday was a hearing on several motions re: Hulstedt v Scottsdale. News on that front is mostly good; below are some excerpts from the court record. Read the whole thing if you can - it's fascinating and the arguments apply to not only police brutality/ excessive force cases, but also searches.

First, these are the civil claims for damages that were filed on David's behalf:

"Plaintiffs’ complaint contains nine claims for relief under 42 U.S.C. § 1983 and seven supplemental claims under Arizona state law.3 (Doc. 28).

In Claim One, Plaintiffs allege that Officer Dorer and Officer Slavin violated David Hulstedt’s Fourth Amendment rights by using excessive force against him when they shot him.

In Claim Two, they allege that Officer Fellows and Officer Garcia violated David Hulstedt’s Fourth Amendment rights by using excessive force when they handcuffed him and dragged him across the asphalt, that Sgt. Dorer is liable for ordering that David be handcuffed, and that Sgt. Slavin is liable for ordering the officers to drag David to the ambulance.

Counts Three through Six, along with certain allegations in Count Seven, have already been dismissed on the pleadings by the original judge in this matter. (Doc.182).4

In the remaining portions of Claim Seven, Plaintiffs allege that officers searched the Hulstedt home in violation of the Fourth Amendment after the shooting, and that Det. Lockerby procured a search warrant for the home through judicial deception.

In Claim Eight, Plaintiffs allege that Lt. O’Halloran, Sergeant Scott Smith, Sergeant Dorer, and Sergeant Slavin bear supervisory responsibility under 42 U.S.C. § 1983 for directing their subordinates to act in ways that deprived Plaintiffs of their constitutional rights.

Claim Nine(a) argues that the City is liable based on two theories of municipal liability: a failure to train officers and a ratification of the officers’ decisions by the Chief of Police.

The remaining claims arise under Arizona state tort law.

Claim Nine(b) is for Battery against Sgt. Slavin, Sgt. Dorer, Officer Fellows, Officer Garcia, and the City.

Claim Ten is for Negligence by Sgt. Dorer, Sgt. Slavin, Det. Lockerby, and the City.

Claim Eleven is for Negligence against Operator Trott and the City of Scottsdale.

Claim Twelve is for Defamation against Officer Greene, Det. Lockerby, Officer Scritchfield, and the City.

Claim Thirteen is for Intentional Infliction of Emotional Distress (“IIED”) against Sgt. Slavin, Officer Scritchfield, Officer Clark, Officer Greene, Det. Lockerby, Officer Fellows, Officer Garcia and others.

Claim Fourteen is for Negligent Infliction of Emotional Distress against Sgt. Slavin and Sgt. Dorer, and

Claim Fifteen is for Loss of Consortium against Sgt. Slavin and Sgt. Dorer.

Defendants move for summary judgment on every claim. (Doc. 271). Plaintiffs move for summary judgment on Claim One, Claim Two, the remaining portion of Claim Seven, Claim Nine(a), Claim Nine(b), and Claim Ten. (Doc. 265)."

Now, some remarks and observations made by the judge in reflecting on these claims (DH refers to David's 3 year old daughter): 

"One cannot pay “careful attention to the facts and circumstances of [this] particular case” and still conclude that the officers were free to fire at David and D.H. as soon the negotiators had coaxed him out of his front door. Graham, 490 U.S. at 396; (Doc. 313-2, Ex. L-1 at 6)...."

"Once the family members’ cell phones had been confiscated, Officer Antrim continued to speak to David over the telephone, stating that “we’re working on getting your brother but you do know as well as I do that this is not a real common practice to send someone into a home like that.” (Doc. 313-2, Ex. L-2 at 5). After fifteen minutes of negotiation, David apparently once again expressed concern that the police were there to shoot him. Officer Antrim continued to negotiate, and learned more about David’s anxiety and his medication. (Doc. 313-2, Ex. L-2 at 8).

Five minutes later, David told the negotiation team that he was ready to leave the house. (Doc. 313-2, Ex. L-2 at 14). When Sgt. Slavin, who was still putting on his SWAT team gear, heard over the radio that the subject was going to leave the house, he “started running down towards the command post.” (Doc. 269, Ex. PP at 144). When Sgt. Slavin reached the command post, he told the officers there that he wanted to go to the scene, obtained directions from them, and continued running towards the house. (Id.). Sgt. Slavin
had heard the previous radio transmissions, but was not aware of any operational plan, did not know how many officers were on the scene, and did not know if any officers had firearms at the ready or deployed. (Doc. 266-3, Ex. L-3 at 169–70). He made the decision to go to the scene on his own, passing through residential yards containing vegetation and cacti to reachthe house. (Id.)..."

"Neither Sgt. Slavin nor Sgt. Dorer warned David that they would shoot him if he did not comply with their commands, and both of them shot him in the back as he was walking away from them and towards the house. (Doc. 313-1, Ex. B at 57, Pospisil video). Sgt. Dorer, when asked if he ever perceived at any particular moment that David was going to “piledrive” D.H., responded, “I did not.” (Doc. 267, Ex. S at 44). Instead, he shot David “to prevent him from going back into the house.” (Id. at 43). When David was shot, he released D.H. as he collapsed and she fell forward onto the concrete walkway from a height of approximately six feet. (Pospisil video).

After David fell, officers converged on D.H. and David. (Pospisil video). Sgt. Dorer and Sgt. Slavin approached David on the ground; Sgt. Dorer ordered him handcuffed and Sgt. Slavin “ordered him to be dragged away from the scene.” (Doc. 269, Ex. PP at 145). Officer Deven Fellows and Officer Marcos Garcia handcuffed David and dragged him approximately 400 feet to where the medics were stationed. (Doc. 266-2, Ex. E at 136). The officers held David under his arms with his face pointed downward, so that his bare knees were in contact with the asphalt and gravel. The dragging resulted in “gaping wounds in David’s knees” that required extensive medical attention."

"The Ninth Circuit has written that summary judgment is rare in cases of police misconduct, because “police misconduct cases almost always turn on a jury’s credibility determinations.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (emphasis added). This case is an exception to that general caution. Almost everything the officers heard was recorded and transcribed, and the shooting itself was recorded on video. The officers fired at an unarmed man who was walking away from them. Although he had issued threats against D.H. earlier, nothing he did after walking outside would suggest to a reasonable officer that he was placing D.H. in imminent danger of suffering any more harm than falling to the ground. By shooting David, the officers caused the very harm that a reasonable officer could believe that David posed to D.H. Considering “the totality of the facts and circumstances in the particular case,” no reasonable officer could have believed that shooting David without warning, while he calmly walked back towards his house with D.H. over his head, was a proper means of protecting D.H.’s safety. Blanford, 406 F.3d at1115...."

And the judge's order: 

IT IS THEREFORE ORDERED:

1. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 265) is granted in part and denied in part.

2. Defendants’ Motion for Partial Summary Judgment (Doc. 271) is granted in part and denied in part.

3. The remaining claims are as follows:

A. On Claim One, summary judgment is entered for Plaintiffs.

B. On Claim Two, summary judgment is entered for Defendants on thehandcuffing claim and denied to both parties on the dragging claim.

C. On Claim Seven, summary judgment is entered for Plaintiffs on the warrantless search allegations. (Doc. 28 ¶¶ 290–296). Summary judgment is entered for Defendants on the judicial deception claim. (Doc. 28 ¶¶ 297–301).

D. On Claim Eight, summary judgment is entered for Defendant on the claims against Sgt. Slavin, and Lt. O’Halloran, and for Sgt. Dorer regarding the handcuffing. Summary judgment is entered for Plaintiffs against Sgt. Dorer regarding the warrantless search. Summary judgment is denied to both parties with regards to the dragging claims. Summary judgement is denied to both parties with regards to Sgt. Slavin.

E. Claim Nine(a) survives only with regards to the ratification claim (Doc. 28 ¶308) and is otherwise dismissed.

F. On Claim Nine(b), summary judgment is entered for Plaintiffs against Dorer and Slavin regarding the shooting. Summary judgment is denied to both parties regarding Officer Fellows’ and Garcia’s dragging David to the ambulance.

G. Claim Ten is dismissed.

H. Claim Eleven survives.

I. Claim Twelve survives

J. Claim Thirteen survives only with regards to Officer Greene and Sgt. Slavin, and is otherwise dismissed.

K. Claim Fourteen is dismissed.

L. Claim Fifteen survives.

4. Plaintiffs’ Motion for Reconsideration (Doc. 333) and Motion for Certification of Issue for Interlocutory Appeal (Doc. 333-34) are both denied.

DATED this 6th day of August, 2012.

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If David's family is out there reading this now, please get in touch with me - I want to connect you with folks who have been advocating for the mentally ill in the criminal justice system for awhile. They want to offer your family support. My name is Peggy Plews; my number is 480-580-6807; my email is arizonaprisonwatch@gmail.com