Harnett County deputies named in an excessive use of force lawsuit lost their appeal Feb. 25th to have the case dismissed.
A federal judge initially ruled against dismissing a 2016 lawsuit brought against the deputies by the family of John David Livingston and five other people, sending the case to the 4th U.S. Circuit Court of Appeals. The three-judge panel upheld the decision on two fronts while siding with the defendants in another.
“This appeal arises from five incidents in which police officers are alleged to have conducted unreasonable searches and seizures, used excessive force, and, in one instance, used deadly force without justification,” Circuit Judge Pamela Harris said in the ruling. “The district court denied the officers’ motion for summary judgment, finding that genuine disputes of fact precluded an award of qualified immunity at this stage of the litigation.”
Plaintiffs sued the deputies on grounds that the officers violated their rights and inflicted bodily injuries, wrongful arrests and loss of life, demonstrating a history of excessive force within the department. The lawsuit identified deputies Nicholas Kehagias, John Werbelow, Michael Brandon Klingman and John Knight, as well as Harnett County Sheriff Wayne Coats and former Sheriff Larry Rollins for failing to properly train, supervise and take disciplinary action against the men despite knowing of the misconduct.
Kehagias left the Harnett County Sheriff’s Office seven months after shooting 33-year-old John Livingston on the front porch of his Spring Lake residence on Nov. 15. 2015. Kehagias responded to Livingston’s home in reference to an assault call. Livingston refused a request to search his home, leading to an altercation involving pepper spray and tasers. Kehagias eventually shot Livingston, claiming the man gained control of his taser. The lawsuit claimed Kehagias held a personal vendetta against the suspect, and he went to the wrong location with Werbelow on purpose.
“Defendants Kehagias and Werbelow acted intentionally, willfully, maliciously, negligently and with reckless disregard for and deliberate indifference to Livingston’s rights and physical and mental well-being by physically assaulting, threatening and killing Livingston,” the lawsuit stated.
Appeal judges agreed with assertions that the deputies used excessive force on Livingston and could face litigation. A grand jury in 2016 decided not to indict Kehagias.
“We agree with the district court that on the pretrial evidence, the force used by Deputies Kehagias and Werbelow to effectuate Livingston’s arrest was disproportionate to the circumstances and thus constitutionally excessive,” Harris wrote. “We likewise agree with the district court that it would have been ‘clear to a reasonable officer,’ at the time and under the circumstances, that the non-deadly force used against Livingston was constitutionally excessive.”
Judges also denied the defendants’ appeal in reference to plaintiff Tyrone Bethune’s lawsuit. Bethune said on July 15, 2015, deputies Kehagias, Werbelow, and Justin Thomas arrived at his home while attempting to serve a warrant on his neighbor. Bethune and guest, Ryan Holloway, told the deputies they were at the wrong address, but Kehagias entered the home anyway, without a warrant or consent. The deputy claimed to have probable cause due to the smell of marijuana and Bethune having an outstanding warrant.
Judges disagreed.
“Because the facts relied on by defendants to argue that the rights violated were not clearly established are in dispute, defendants have not, based on plaintiffs’ version of the facts, satisfied their burden to show that the right to be free from arrest without probable cause . . . would not have been clear to a reasonable officer,” the ruling stated.
Michael Cardwell, 66, suffered a broken leg and rib on May 12, 2015, after calling 911 requesting help. Kehagias, Klingman and Knight responded to the call and found an upset Cardwell. An altercation eventually ensued, leading to Kehagias tackling Cardwell, resulting in his injuries and a claim that deputies violated his Fourth Amendment rights. The defendants argued that they were trying to conduct a mental health seizure.
Judges sided with deputies.
“It is enough to say that it was not clearly established, at the time of the incident, that the officers lacked probable cause for a mental health seizure,” Harris wrote. “And that they therefore are entitled to qualified immunity as a matter of law.”
Tuesday’s decisions sent the case back to the U.S. District Court in Raleigh.
-Dunn Daily Record
