No Immunity For Cops Who Shot Man Multiple Times, Then Searched His House For Evidence Of ‘Assaulting An Officer’

Legal Issues

from the CYA-failure dept

There are plenty of valid reasons to seek a search warrant. Investigating a crime you can’t punish anyone for (because you’ve killed them) isn’t one of them.

That’s the upshot of this recent federal court decision — one that will no doubt be appealed to the Fifth Circuit Appeals Court to see if the cop-friendly judges can’t give back the immunity these officers definitely didn’t earn.

This decision [PDF] deals with the killing of Miguel Nevarez by Louisiana law enforcement officers in October 2020. Officer Walter Tenney of the Houma PD was investigating reports of gunshots in Nevarez’s neighborhood. He approached Nevarez, who was sitting in his car, which was parked in his driveway. Tenney tried to engage Nevarez in a conversation but Nevarez refused.

Then this happened:

Plaintiffs allege that Tenney, “without any basis in fact,” reported that Mr. Nevarez possibly had a gun in his car. Tenney and other officers further reported that Mr. Nevarez had “barricaded” himself in his vehicle. Plaintiffs represent that, at this point, the officers “continued to escalate the situation” by blocking off the surrounding streets, and calling for additional backup, which resulted in nearly fifty officers from HPD and TPSO [Terrebonne Parish Sheriff’s Office] arriving at the scene.

If escalation is the first move, confrontations like these tend to end in violence. Officers prevented the Nevarez’s wife, Julie, from approaching the house. Miguel tried to call her but Lt. Travis Theriot seized her phone, preventing her from answering his call. Roughly ninety minutes later, Nevarez exited the car and ran towards his house. This run ended in a hail of cop gunfire, ending his life.

In an effort to stop Mr. Nevarez, Officer Theriot allegedly shot at Mr. Nevarez with his 40 mm “impact munition,” and Officer Tenney attempted to tase him. Mr. Nevarez allegedly stumbled but regained his footing and began to run toward the front corner of his house, at which point, according to defendants, Mr. Nevarez “raised a gun towards [HPD Officer] Bolgiano.” Plaintiffs dispute that Mr. Nevarez raised a gun towards Bolgiano. Allegedly in response, Bolgiano fired at Mr. Nevarez as he emerged from the west side of the yard. Several other defendants also reported firing on Mr. Nevarez, and plaintiffs assert that
Mr. Nevarez was ultimately shot at approximately 20 times.

The Louisiana State Police stepped in to investigate the shooting. For reasons only known to State Police, Troopers Justin Leonard and Anthony Leonard sought warrants to search Miguel Nevarez’s house, car, and Ms. Nevarez’s cell phone. While there may have been valid reasons to search the scene of the possible crime (the killing of Nevarez by officers), there was no valid reason given for these searches, which the troopers stated in their affidavits was to investigate “aggravated assault upon a peace officer.”

That’s a big problem. The person suspected of this crime was dead, which means there was no continuing investigation into this crime because there was no prosecution to pursue. That means there’s no probable cause to support these warrants, something the troopers should have known. As the plaintiffs argued, these warrants served no valid law enforcement purpose. Instead, they appear to have been obtained to serve an extremely invalid law enforcement end.

In particular, plaintiffs emphasize that no one “still living—let alone residing in the home—had anything to do with” the alleged crime underlying the warrants, and that law enforcement could not “charge [Mr. Naverez] with a crime posthumously, obviating the need for such evidence.” Plaintiffs also reiterate their allegations from the last version of their complaint about the affirmative misrepresentations contained in defendants’ affidavits. The thrust of plaintiffs’ claims is that defendants obtained warrants to search for information “supporting a defensive narrative to retroactively justify the excessive use of force” that resulted in Mr. Nevarez’s death and to intimidate his family rather than to seek evidence of Mr. Nevarez’s alleged crime.

The court agrees with the plaintiffs.

In light of the fact that the affidavits make clear that Mr. Nevarez died during the altercation with the police, and the affidavits do not include any information that suggests that others may have been involved with the alleged assault on a peace officer, the Court finds that the warrants do not support a finding of probable cause.

Anyone who isn’t a cop probably thinks this sounds bad. But there’s always qualified immunity and/or the good faith exception. The first assumes most cops are idiots and can’t possibly know what might violate rights until it’s clearly and repeatedly established. The second assumes most cops are idiots and will participate in illegal searches simply because some magistrate they woke up with a phone call didn’t bother reading all the boilerplate before signing off on warrants not backed by probable cause.

Either way, the dumber the violation, the more likely it is that cops will be given a free pass. Not here, though. And that’s a call this court makes even though there’s no precedent exactly on point.

Nothing in the warrant affidavits indicates that others were involved in Mr. Nevarez’s alleged crime, nor do the affidavits give any indication that the crime could be ongoing. Much like the officer in Coopshaw who applied for a warrant “essentially to find out what happened,” defendants concede in their motion to dismiss that they applied for the warrants to “investigat[e] the events which unfolded on the night of the incident which necessitated the use of force.”

They do not dispute that Mr. Nevarez could not be posthumously charged of a crime, nor do they contend they were actively investigating anyone else in connection with the alleged assault on a peace officer. Plaintiffs have plausibly alleged that here, as in Coopshaw, law enforcement secured the warrants to uncover exculpatory evidence they could use to defend their own use of force.

No immunity. All of this is clearly established, even if case law doesn’t present a binding opinion dealing with officers investigating crimes that couldn’t be prosecuted.

The Court finds that defendants are not entitled to dismissal on the basis of qualified immunity. The Fourth Amendment right that plaintiffs contend defendants violated—to be free from a search pursuant to a warrant that, on its face, was “so lacking in indicia of probable cause as to render official belief in its existence unreasonable,” Malley, 475 U.S. at 344-45—was clearly established at the time defendants submitted their warrant affidavits.

[…]

A reasonable officer would understand that there is no probable cause to support a search warrant where, as here, the police were investigating their own use of force rather than pursuing an active criminal investigation.

That last paragraph isn’t the court speculating about the troopers’ true motives. The State Police were called in to investigate a shooting by officers, not investigate the person they killed. The fact that the troopers decided to frame their warrant requests this way strongly suggests what the plaintiffs have alleged: they were more interested in exonerating the involved officers than investigating them. And that means they can’t walk away from this lawsuit… at least for the moment.

Filed Under: houma pd, louisiana, miguel nevarez, qualified immunity, travis theriot, walter tenney