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Expert’s theory: Excessive force because officer ‘didn’t fire enough’

“We think that the use of force remains reasonable after a suspect employs a weapon, has not surrendered, and thus remains dangerous.”

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Estate of Eric Jack Logan v. City of South Bend, 2022 WL 4694002 (7th Cir. 2022)

Sergeant O’Neill responded to a call about a suspect in dark clothing breaking into vehicles in a parking lot. He came across Eric Logan.

Logan advanced toward Sergeant O’Neill with a Gerber knife raised over his head, ignoring O’Neill’s commands to drop it. From approximately 7 ½ feet, just three steps away, Logan threw the knife at O’Neill as the sergeant fired twice. O’Neill’s first bullet hit a car door and the second bullet hit Logan’s abdomen. The knife hit Sergeant O’Neill’s arm. O’Neill called for an ambulance, but Logan died at a hospital.

Logan’s estate sued, alleging Logan threw the knife a second or so before O’Neill pulled the trigger, implying any threat was over in the blink of an eye before O’Neill fired. Logan’s estate also argued a jury might doubt Officer O’Neill’s version of events because he did not activate his body camera until he had fired.

The trial court granted summary judgment to the officer; Logan’s estate appealed. The appellate court recognized the only account of what happened was O’Neill’s statement, which boiled down to: “He threw a knife at me, so I shot him.”

The estate relied on an interesting, if nonsensical, theory from expert witness Dennis Waller. Noting Sergeant O’Neill only fired twice when Logan threatened him with the knife, Waller theorized O’Neill must have “thought himself to be safe” because he only fired twice, and officers are trained to fire until the threat has stopped. The trial court noted, “So [Waller] proposes to offer the jury alternative opinions—either Sergeant O’Neill shouldn’t have fired his gun or he didn’t fire it enough.” That’s a strange claim for an excessive force allegation. As the court put it, “His opinions remain entirely unhelpful.”

The estate also offered the analysis of a psychologist, William Harmening, who claimed Logan was on his knees when O’Neill fired. The trial court rejected that evidence: “Harmening lacks the qualifications to perform a reliable blood stain analysis.” Citing other courts that have rejected Harmening’s work, the court observed: “His opinion is no opinion at all, much less one supported by any credentials in blood stain analysis, testing, verifiable facts, or any reliable methodology.” The appellate court simply held: “The physical evidence, such as the bullet track, was consistent with Sergeant O’Neill’s account.”

The appellate court affirmed the grant of summary judgment. The court concluded Logan was still a threat to O’Neill even when he’d thrown the knife: “That Logan closed on O’Neill and threw a knife shows that the risk was ongoing during the few seconds that O’Neill had to make decisions. … We think that the use of force remains reasonable after a suspect employs a weapon, has not surrendered, and thus remains dangerous.”

Read more Ken Wallentine case reviews here.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.