U.S. District Judge Richard Jones, in a 31-page order issued Friday, denied the state’s request to dismiss an excessive-force claim, citing conflicting versions of what occurred.
A federal judge’s order to allow a jury to hear the excessive-force claim of a man who survived being shot 16 times by a state corrections officer and a King County sheriff’s deputy is raising a new question: whether Officer Kristopher Rongen and Deputy Aaron Thompson gave truthful accounts of what occurred when they shot Dustin Theoharis in his bed on Feb. 11, 2012.
U.S. District Judge Richard Jones, in a 31-page order issued Friday, denied the state’s request to dismiss Theoharis’ claim, citing conflicting versions of what occurred.
“Viewing the evidence in the light most favorable to Mr. Theoharis,” Jones wrote, referring to the standard of review, “the shooting constituted excessive force in violation of clearly established Fourth Amendment law.”
King County already has settled with Theoharis, agreeing in 2013 to pay him $3 million. A onetime refrigeration mechanic, Theoharis, 31, is no longer able to work, according to his attorney.
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The King County Prosecuting Attorney’s Office declined to bring criminal charges against Rongen and Thompson in 2012, citing their and Theoharis’ refusals to give statements at the time and limited evidence suggesting Theoharis reached for a gun.
State attorneys are defending Rongen, who was sued for monetary damages in his capacity as a community corrections officer with the Department of Corrections. Trial is set for June 1.
Rongen and Thompson, along with other law-enforcement officers, went to an Auburn-area home to arrest a man sought for violating his community supervision.
After taking that man into custody, they went to a darkened, lower-level bedroom and confronted Theoharis with guns drawn.
According to Theoharis’ version, he was napping, oblivious to their presence.
Theoharis asserts he woke to two people pointing flashlights in his eyes, with one asking him in a normal voice if he had any identification.
He said he responded, “Yeah, it’s right here,” and reached to the floor for his wallet.
When he turned back with his wallet in his hand, he alleges, Rongen and Thompson opened fire, hitting him in the face, arms, legs and abdomen with about 16 shots.
Rongen, in a declaration, said he initially stated, “Police, police, show your hands” in a “very loud voice.”
Rongen contended a lethargic Theoharis, whom he suspected of being under the influence of a drug, pulled his hands under a comforter.
In response to repeated commands to show his hands, Rongen said, Mr. Theoharis at some point said, “No.”
Rongen said he yanked off the comforter, saw no weapons and asked Theoharis if he had identification. But Theoharis made no motion in response to the question about identification, according to Rongen.
Rongen said the motion came later, when he asked Theoharis if he had weapons. Theoharis replied he had three guns, forcefully added “right here!” and then quickly rolled to his left and swept the floor with his hand.
Rongen said he began yelling for Theoharis to show his hands, but Theoharis quickly reached under the mattress and appeared to be pulling something.
At that point, Rongen recounted, he feared Theoharis was preparing to shoot, so he fired at Theoharis.
Thompson gave a somewhat different account. In a deposition, he said Rongen never asked for ID but Thompson echoed Rongen’s account of asking about guns. Thompson said he began shooting out of fear that Theoharis was reaching for a gun.
Theoharis denies that anyone asked him about weapons or that he said he had them; that Rongen and Thompson raised their voices; and that he reached under the mattress.
Two other residents of the house and a detective who were a short distance away in the living room agreed that no more than 30 seconds passed between when Rongen and Thompson descended the stairs to the bedroom and when the shooting began, according to depositions. Rongen estimated it was 60 to 90 seconds.
“The men on the main floor agree that they heard nothing from any of the three men in the lower level before the shooting began,” according to Judge Jones’ order.
An acoustical analysis by an expert retained by Theoharis concluded that “shouting speech” from the bedroom would be “clearly audible and intelligible” from the living room.
Edwin Budge, the attorney for Theoharis, said Tuesday of the judge’s order: “I think the Prosecutor’s Office may well want to take another look at this.”
Prosecutor’s spokesman Dan Donohoe said Tuesday in an email: “We just got this and will review the order.”
Budge praised Jones for finding that many of Rongen’s reasons for entering the bedroom lacked justification, although Jones ruled that Theoharis can’t collect damages for unlawful entry because Rongen was conducting an allowable protective sweep.
In his ruling, Jones, citing the favorable-light standard, noted evidence supports Theoharis’ version of events.
Jones wrote he need not “square the accounts” of those who said they heard nothing preceding the shooting with “Officer Rongen’s and Detective Thompson’s assertions that they were often shouting at Mr. Theoharis.”
In addition, “The court need not assess whether the officers could have engaged in the multi-part verbal exchange they describe with Mr. Theoharis in the seconds between their descent to the lower level and the beginning of the shooting,” Jones wrote.
“The court need not decide what to make of discrepancies between the account of Officer Rongen and the account of Detective Thompson, or discrepancies between the officers’ sometimes-competing accounts and Mr. Theoharis’s account. The court leaves those inquiries to the jury.”