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White v. United States

United States District Court, E.D. Missouri, Eastern Division

March 29, 2019

HOPE ANGELIC WHITE, et al. Plaintiffs,
v.
THE UNITED STATES OF AMERICA, et al., Defendants,

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff Hope Angelic White brings this action individually and in her capacity as personal representative for the Estate of her decedent, Myron Pollard, against defendants the United States of America and Bernard Hansen, an agent with the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). The litigation pertained to defendant Hansen's fatal shooting of Pollard on August 29, 2012. Plaintiff, as personal representative of the estate of Pollard, brought a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for the use of excessive force against Pollard, which was tried before a jury July 23-27, 2018. The jury found in favor of defendant. Plaintiff also presented a claim under the Federal Tort Claims Act (“FTCA”) for wrongful death, which was tried simultaneously before this Court. The parties submitted proposed findings of fact and conclusions of law on plaintiff's FTCA claim on December 10, 2018.

         Having considered the pleadings, trial testimony, exhibits, and proposed findings of facts and conclusions of law submitted by the parties, the Court hereby makes and enters the following findings of fact and conclusions of law with regard to Count I against the United States and in accordance with Federal Rule of Civil Procedure 52(a).

         FINDINGS OF FACT

         Stipulated Facts

         1. This is an action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., arising out of the death of Myron Pollard as a result of an officer-involved shooting that occurred during an undercover arrest in St. Louis, Missouri on August 29, 2012.

         2. Plaintiff Hope Angelic White resides St. Louis, Missouri and is the mother of Myron Pollard.

         3. Myron Pollard, a citizen of the United States of America, was an individual who resided in St. Louis, Missouri.

         4. Plaintiff Hope Angelic White is the duly appointed personal representative of the Estate of Myron Pollard, deceased, in the Probate Division of the Circuit Court of the City of St. Louis.

         5. On August 29, 2012, Defendant Bernard Hansen was employed by the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives as a Special Agent.

         6. On August 29, 2012, Defendant Bernard Hansen was acting in the course and scope of his employment as a Special Agent for the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives.

         7. On August 29, 2012, Defendant Bernard Hansen was acting under color of federal law.

         8. At all times relevant, Myron Pollard was a passenger sitting in the front passenger seat of a car that was being driven by Damitrius Creighton.

         9. Defendant Bernard Hansen fired three shots from his ATF-assigned rifle; one of these shots struck Myron Pollard in the head and fatally wounded him.

         10. Special Agent David Hall fired three baton rounds from his ATF-assigned less lethal SL-6 weapon.

         11. Myron Pollard was pronounced dead on August 30, 2012 at 2:06 a.m. as a result of a fatal gunshot wound to his head.

         Events Leading up to August 29, 2012

         12. In mid-August of 2012, a reliable confidential informant contacted ATF special agent (“SA”) Chris Wiegner about a suspect named Arlando Quarles who was believed to be committing violent crimes around St. Louis.

         13. After receiving this information from Quarles, the ATF agent arranged a meeting between SA Toby Gettler (who was working in an undercover capacity), the confidential informant, and Quarles. During this meeting, SA Gettler posed as a disgruntled narcotics courier who wanted to rob a drug stash house.

         14. SA Gettler met with Quarles and other suspects on three more occasions to confirm that they were willing to commit the fictitious robbery. During one of the meetings, Quarles and another suspect told SA Gettler that they planned to kill the occupants inside the drug stash house during the armed robbery.

         15. Through the confidential informant, SA Wiegner learned that the suspects also planned to kill SA Gettler and take his share of the drugs after the fictitious robbery.

         16. SA Wiegner requested the assistance of ATF's Special Response Team (“SRT”) with the arrest of the suspects because the SRT members had more training in arresting suspects during the course of home invasion robbery operations and had access to more gear and weapons than the regular ATF field agents.

         17. SRT is similar to a Special Weapons and Tactics (“SWAT”) team; the SRT members train to assist the field agents with high-risk events, like arrests at the conclusion of home invasion operations such as this one.

         18. In August 2012, SA Hansen was a full-time SRT member.

         19. About a week before the operation, SA Hansen and other SRT members were asked to assist with the arrest portion of this operation.

         20. After consulting with SRT, SA Gettler and SA Wiegner scheduled the final meeting with the suspects (i.e., the arrest) to occur on August 29, 2012.

         21. Pollard was not known to the ATF agents, including SA Hansen, prior to August 29, 2012.

         August 29, 2012

         22. SA Wiegner held a pre-operational briefing for the SRT and provided them with background information about the case and the operational plan, which usually includes a discussion of the tactical plan and how the takedown would occur, personnel assignments and contingencies, the use of force policies, and emergency driving policies.

         23. The briefing occurred at approximately 8:00 a.m. on August 29, 2012 and was the first time that SA Hansen was briefed about the investigation.

         24. During the briefing, SA Hansen learned that the suspects were supposed to bring firearms to the final stage of the undercover operation and that the undercover agent had received information that the suspects were planning to kill him following the robbery.

         25. SA Wiegner believed that SRT needed to know that the suspects told the confidential informant that they were going to murder the undercover agent and the people in the stash house because it heightened the agents' awareness of the likelihood that guns would be present during the arrest.

         26. SA Hansen testified that home invasions are one of the most high-risk operations with which SRT assists. Once SA Hansen learned that the suspects planned to kill the undercover agent, that raised the risk in his opinion.

         27. SA Wiegner testified that in his experience, it is common for unknown suspects to show up on the day of the operation. In order to plan for this, they have several contingencies in place, such as blocking vehicles and less-lethal options, but SA Wiegner acknowledged that, “we can only plan for so much and can't anticipate everything that [the suspects] do.”

         28. The plan for the final meeting was to have SA Gettler drive a U-Haul truck, with the SRT members secreted in the back, into a parking lot to meet the suspects, confirm their willingness to commit the armed robbery, and then arrest the suspects.

         29. During the briefing, SA Hansen and the other SRT members discussed the possibility of the suspects' car reversing at them; however, they could not plan for when the driver would “hit the gas” and would have to figure out their reactions “on the fly.” SA Hansen explained that in general they “discuss the various variables and [] train to various variables when they occur, ” but as far as “every minute-second detail when it's going to go, you can't practice that, per se.”

         30. The morning of the briefing, the SRT also did a test run or rehearsal of the arrest in the parking lot of a hotel, with the goal of “ensuring that the back of the U-Haul gate was able to get manipulated in a proper manner so the team wouldn't get stuck inside.”

         31. SRT could not run the rehearsal in the parking lot where the arrest was scheduled to occur, however, because the parking lot “was in close proximity to Mr. Quarles.” SA Justin Meyer, the SRT Team Leader, testified that Quarles or other individuals could have seen them during the rehearsals, which would have compromised the investigation.

         32. For this operation, SA Hansen was assigned to be the number one arrest team person, meaning that he was the first SRT member to jump out of the back of the U-Haul.

         33. SA Hansen explained that the first SRT member out of the “stack” is responsible for identifying the threats, announcing “Police, ” getting to his predetermined position while engaging the suspects, and providing protection for the other SRT members who are “jumping out blind.”

34. SA Hansen described the other SRT members as jumping out of the U-Haul blind because of the U-Haul's position. When they exited, they would have to turn to their left to see the suspects' car, orientate themselves, and move into their predetermined positions.

         35. Immediately upon jumping out, SA Hansen's plan was to announce their presence and move across the rear of the suspects' car so he could see its passenger side.

         36. If everything had gone according to the plan, the SRT members would have formed an L-shape allowing them to cover both the white van and the suspects' car.

         37. After the pre-operational briefing, SA Gettler drove the U-Haul to the arrest location, with SA Hansen and seven or eight other ATF agents in the back.

         38. SA Gettler parked the U-Haul in the parking lot. There was also a white van parked in the lot, which SA Gettler had told the suspects that he was providing to them to conduct the robbery.

         39. The white van was parked perpendicular to a wall and there was an empty space to its right, which the agents assumed was where the suspects would park their car when they arrived.

         40. While waiting in the back of the U-Haul, SA Hansen heard over his earpiece that two suspects had arrived on foot and then that a dark sedan, which was occupied by multiple people, arrived in the parking lot and had pulled in next to the white van.

         41. While in the back of the U-Haul, SA Hansen could not see outside into the parking lot and did not know exactly where all the suspects were located, though he had an idea of their positions based on the pre-operational briefing.

         42. SA Gettler confirmed that each person inside the suspects' car was ready to commit the robbery and then faked a telephone call, which was the “bust signal” indicating that the SA Meyer should direct the SRT members to deploy from the U-Haul and arrest the suspects.

         43. After hearing the command “Initiate, Initiate, Initiate” over his earpiece, SA Hansen jumped out of the U-Haul and yelled multiple times something to the effect of, “Police. Let me see your hands.”

         44. As the diversionary flashbang devices deployed, SA Hansen was heading to his pre-deployment position off the back of the U-Haul.

         45. SA Hansen estimated that it took him “three-some seconds or approximately a couple seconds” to get to the point where he saw the lights on back of the suspects' car turn on.

         46. The first time that SA Hansen saw the suspects' car was when he jumped out of the U-Haul.

         47. 50. At that time, the suspects' car was parked with its front end pointed toward the wall, approximately 21 feet, or 7 yards, from SA Hansen.

         48. SA Hansen heard the engine rev and then he saw the reverse lights turn on.

         49. SA Hansen testified that he “remember[s] very vividly” that he said to himself something to the effect of “oh, f**k me, no” because he knew what was going to happen next. He thought that he or the SRT members “were going to get run over” by the suspects' car.

         50. SA Hansen thought the suspects' car was going to run over them because they were in close proximity to the suspects' car and the car had to move backward in order to get out of the parking spot.

         51. When SA Hansen saw that the suspects' car was reversing, he “felt like [the driver] had slammed on the gas and the vehicle was coming at [him] like as fast as it would go.”

         52. SA Hansen described everything as happening instantaneously. He testified that, “I mean, I'm running, I'm going, and then it's like, oh no, the lights are coming on. You know what's going to happen next. You are praying the car doesn't come. The car comes. I bring my rifle up, I take it off of ...


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