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Settlement shows difficulties in police misconduct cases

Minneapolis attorney James Behrenbrinker’s firm recently got a $750,000 settlement for the family of Tyler Heilman, who was shot to death by an out-of-uniform Le Sueur County sheriff’s deputy in 2009. (Staff photo: Bill Klotz)

Few personal injury cases are as tricky for plaintiffs and defendants as those involving police misconduct. Both sides must rely on conflicting eyewitness testimony, or none at all. Both sides must deploy expert witnesses and scientific analysis whose objective nature can tip the balance of a case toward one side.

These cases are also tricky for plaintiffs’ lawyers because the general public for the most part recognizes that police work is one of the most demanding, stressful professions there is, according to Minneapolis lawyer James Behrenbrinker.

“They’re difficult cases because police officers have a very dangerous job,” Behrenbrinker said. “They’re dealing with people who maybe aren’t on their best behavior. The officer has to decide in a split second what kind of force they’re going to use.”

Behrenbrinker’s firm recently got a $750,000 settlement for the family of Tyler Heilman, who was shot to death by an out-of-uniform Le Sueur County sheriff’s deputy in a Kasota, Minn., parking lot in 2009. After a grand jury decided Waldron shouldn’t be charged, Mark Heilman, Tyler’s father, filed the lawsuit in federal court claiming Waldron assaulted his son and used unreasonable deadly force. (Note: The author of this article is not related to Tyler Heilman or anyone in his family.)

How much danger?

On July 20, 2009, deputy Mark Waldron confronted Tyler Heilman about his driving and demanded to see a license, which Heilman didn’t have. The two men exchanged words before wrestling on the ground, according to witness accounts.

Witnesses said Heilman might have seen a badge on Waldron’s belt and was moving away when Waldron shot him in the chest with a Glock .40 caliber handgun, then shot three more times.

At question was how much danger Waldron was in, and his proximity to Heilman when he fired. Jason Hiveley, a partner with Iverson Reuvers in Bloomington, represented Le Seuer County in the case on behalf of Minnesota Counties Intergovernmental Trust. He said the lack of objective visual evidence such as a dash-cam made eyewitness accounts and forensic evidence in the Heilman case that much more important.

“When it comes down to the details of trajectory of rounds and the type of weapon used, the forensic side of this case made it more challenging than usual, and it required retaining a number of experts that we don’t normally deal with,” said Hiveley. “We use ballistics experts, police psychology experts and other experts just to make sure we cover every side of what happens in an officer-related shooting.”

In the Heilman case, there were several witnesses, but not much consistency — both among their stories and how those stories compared with Waldron’s. That left the physical evidence left behind by the tragedy. There were four gunshot wounds on Heilman’s body, but only one had any gunshot residue. Using Waldron’s gun and leftover bullets from the weapon’s magazine, a firearms expert enlisted by Behrenbrinker concluded that the closest shot to strike Heilman was the first shot, fired from between two and three feet away.

That contradicted testimony given by Waldron, who said all four shots were fired in close quarters.

“The other gunshots would have to have been at least five feet away to show a total lack of stippling, or residue,” said Behrenbrinker. “It just didn’t add up. Witnesses said he was backing away and had his hands up.”

A chance to move on

Hiveley said the county had a witness ready to corroborate Waldron’s version of the story had the case gone to trial. “It was fascinating to hear the variations in the testimony of the friends,” he said. “I don’t think there was anything consistent about what anyone said they saw.”

Regardless, Hiveley and the county weren’t disappointed that the case was settled. “I like trying these kinds of cases, but I have to put those personal ambitions aside,” he said. “[A settlement] gives everybody on both sides of this case a chance to move on.”

Behrenbrinker, who said his office gets about a dozen police-misconduct client queries each year, said proving misconduct can be difficult because under federal law, police officers are entitled to qualified immunity. Meanwhile, police in Minnesota have official immunity, so an officer who uses force can be immune from tort liability if it the force is deemed reasonable and necessary.

“A serious injury or even death doesn’t necessary equal a reasonable cause of action,” said Behrenbrinker. “Each case is intensely fact-sensitive. You have to look at the facts of each case closely to see if the officer is entitled to qualified immunity or official immunity.”

Minneapolis plaintiff’s lawyer Christopher Kuhlman said qualified immunity can shield an officer of all liability and preclude a case from going to trial if the officer can show that his or her conduct was objectively legally reasonable in light of the information had at the time of the incident.

“Very few would argue that being a police officer is not a difficult job,” said Kuhlman. “Courts do not want to penalize an officer for making a split-second situation or inhibit an officer from acting as he or she sees accordingly based upon the information they have at the time.”

Plus, often there aren’t witnesses to an incident of excessive force, meaning both sides are left with the officer’s story. The plaintiffs’ attorney has to test that story, Behrenbrinker said, and part of that process is analyzing the nature of the injuries: Does the officer’s story comport with the injuries? Does it make sense, or does it lead to more questions?

“You start to develop a sense for what happened,” Behrenbrinker said. “You’ll always have the officer’s version of things. Sometimes it’s reliable and sometimes it’s not. You have to find out if there were any witnesses and get their stories.”

POSTED: 1:13 PM FRI, DECEMBER 28, 2012
BY DAN HEILMAN on www.Minnlawyer.com

Original Article at Minn Lawyer