Monday, January 17, 2011

LEOSA: Shootout Leaves Two Injured And Everybody Gets Sued

Probationary Officer Bryan Pour
Does your agency have a LEOSA policy?  If not, it should.

During the early morning hours of November 9, 2008, four off-duty St. Louis, Missouri police officers were socializing at Mack -N- Mick’s Sports Bar outside of Ponton Beach, Illinois.  Police Officers Bryan Pour, Christopher Hantak, Philip Meyer, and another were in plain clothes, but were openly advertising that they were police officers by showing their badges and through other conduct.  All but the unidentified officer were carrying their service handguns. Since Illinois does not issue carry permits or offer reciprocity, the three were carrying concealed firearms under LEOSA.

Pour, age 26, however, was ejected from the bar because of his level of intoxication, but he remained in the parking lot.  That is where he became involved in a scuffle with three civilians outside—Kevin Elliott, Ted Wallace, and John Hadley.  Pour ended up on the ground.  Accounts of what happened next differ.

According to Jeffrey Bladdick, age 25, a friend of the three civilians, he observed Pour on the ground and helped lift him to his feet.  Once on his feet, Pour allegedly spun around and fired one round into Bladdick’s torso.  Bladdick testified that he had not interacted or conversed with Pour at anytime prior to picking him up off the ground.  He also testified that he had no idea Pour was a police officer prior to the shooting.

Either way, Pontoon Beach Police then arrived.  Responding Police Officer Aaron Morgan then shot off-duty St. Louis Police Officer Christopher Hantak in the head and once in the shoulder after Hantack reportedly refused to drop his handgun.  Hantak was intoxicated at the time.  Police Officer Morgan was subsequently cleared by a Grand Jury investigation, but was sued by Hantak for alleged excessive force.

According to Pour’s attorney, Bladdick struck him over the head with a pipe and that Pour acted in self-defense.  Nonetheless, the St. Louis Police Department terminated the employment of Officers Pour, Hantak, and Meyer.  Pour later pled guilty in August 2009 to a reduced charge of aggravated discharge of a firearm and received four years probation because of a request for leniency by Bladdick.

Bladdick sued Pour, the members of the St. Louis Police Department Board of Police Commissioners, and the bar.  Pour and his agency were sued under the Civil Rights Act, 42 U.S.C. § 1983.  Pour was also sued for negligence.

To establish a claim under § 1983, Bladdick must show that Pour “acted under color of state law.”  However, Pour was not in St. Louis and therefore was not acting under state law.  He had no police power.  Instead, he carried into Illinois under LEOSA, which is Federal law.  At the time of the shooting, Pour was intoxicated and was thus outside the scope of LEOSA coverage as wells as outside the scope of his agency’s policy.

The Federal Court dismissed the § 1983 claims against Pour, holding that he “was acting as a private citizen at the time” and not under color of law.  It reasoned that his agency’s policy stripped him of authority once he became intoxicated.  The policy specifically stated, “LEOSA does not provide authority for a person to carry a concealed firearm while under the influence of alcohol or any other intoxicating or hallucinating substance.”  Everything Pour did after he became intoxicated was done for personal reasons, not to further any official policy.  Carrying an agency firearm alone, was not enough to establish § 1983 liability.

The Federal Court also dismissed the § 1983 claims against the St. Louis Police Department and reasoned that although the Police Department failed to prohibit the carriage of its firearms across state lines, its LEOSA policy did prohibit carriage of agency firearms while intoxicated and provided for sanctions and other discipline.

Bladdick’s state law negligence claims against Pour and the bar were dismissed without prejudice on December 8, 2010, but can be refiled in state court.  Importantly, however, while § 1983 claims allow prevailing plaintiffs to recover their attorney fees, negligence claims typically do not.

The lessons here, include the following: 1) Agencies need to have well written LEOSA policies; 2) agencies need to train their officers about LEOSA; 3) booze and firearms do not mix; and 4) anyone who carries a firearm must have LEOSA training and appropriate insurance coverage.

If you did not attend our February 2011 or November 2010 LEOSA Seminars, you MUST attend our next LEOSA seminar being held on Saturday, 21 May 2011 from 10 am to 2 pm at the Essex County Police Academy in Cedar Grove, New Jersey.  You can register online by clicking here

If you cannot attend, you can order our November 2010 seminar materials

Or contact us to host a live webinar or seminar at your police academy. 
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