Budge & Heipt Obtain Police Shooting Settlement Totaling $5.5 Million

Published: February 19, 2015
By Steve Miletich for the Seattle Times
Original Article

Reported by the Seattle Times:

The state Department of Corrections has agreed to pay $2.5 million to a man who survived 16 gunshots fired by a corrections officer and King County sheriff’s deputy in 2012, ending a lawsuit in which the judge raised serious questions about what led to the barrage.

The settlement comes on top of $3 million that King County, before the suit, paid to the man, Dustin Theoharis, bringing the total to $5.5 million.

“Through the legal process, many things were learned about the DOC’s operations and procedures that raise serious constitutional concerns,” Theoharis’ attorneys, Ed Budge and Erik Heipt, said in a statement Thursday evening in which they announced the agreement.

“Having brought these issues to light, it is now up to the DOC to take a hard look at its policies and procedures so that something like this doesn’t happen again,” the attorneys said.

Heipt, in an interview, called the settlement “vindication” for Theoharis and “acceptance of responsibility” by the Department of Corrections (DOC), although the agency admitted no formal liability.

The DOC, in a statement Thursday night, said, “Due to this type of litigation’s inherent risk and for the benefit of the citizens of Washington, the state made the decision to settle the claims brought against it.”

The settlement comes less than two weeks after U.S. District Judge Richard Jones flagged issues about the case in a pointed 31-page order denying the state’s request to dismiss an excessive-force claim brought by Theoharis in his suit. Trial was set for June 1.

Theoharis, now 31, was shot in his bed by Deputy Aaron Thompson and community corrections Officer Kristopher Rongen on Feb. 11, 2012, shortly after law-enforcement officers went to an Auburn-area home looking for another man sought for violating his community supervision.

After taking the man into custody, Rongen and Thompson searched a darkened, lower-level bedroom and opened fire after Theoharis, according to Rongen, claimed that he had three guns and reached under a mattress.

Theoharis disputed that account in his suit, alleging Rongen and Thompson fired at him after asking for identification. Theoharis, who was unarmed, contended he reached to the floor for his wallet and was turning back with it when he was struck with about 16 shots in the face, arm, legs and abdomen.

Jones, in his Feb. 6 order, questioned whether a multipart verbal exchange described by Rongen and Thompson could have occurred in the seconds between when they went to the bedroom and the beginning of the shooting.

The order also noted that some witnesses heard nothing preceding the shooting, contradicting Rongen’s and Thompson’s assertions that they were shouting at Theoharis.

His order also repeatedly rejected Rongen’s justifications for entering the room, although Jones, on a narrow legal ground granting Rongen immunity, found that Theoharis couldn’t collect damages for unlawful entry.

The DOC, in an internal shooting review, found that Rongen had followed department policies in a dangerous situation.

But in a separate report, a DOC team recommended the department clarify the process for checking all areas of a residence, establishing training “so staff learns the actual process of safely sweeping a residence and engaging 3rd party individuals.”

Recommendations in the report were accepted, the DOC’s Thursday statement said.

The Sheriff’s Office, in a series of reviews, concluded the shooting was justified but found fault with the decision-making by Thompson and Rongen that led up to the confrontation.

An internal investigation found that Rongen and Thompson did not ask the owner of the house or the man who was being sought “anything about the occupant of the room, if there were weapons present or if the person permanently lived at the residence.”

They also “made no plans” with other officers who were present and did not contact a supervisor, according to a memorandum.

The King County Prosecuting Attorney’s Office declined in 2012 to bring criminal charges against Rongen and Thompson, citing in part the refusals of the officers and Theoharis to provide statements at the time.

Last week, the prosecutor’s office said it had reviewed depositions and other documents from the civil suit, including Jones’ ruling, but did not find any new information that would change its legal analysis.

“There remains insufficient evidence that the officers were acting with malice or in bad faith when they used deadly force,” a statement said. “The state would not be able to disprove the justifiable use of deadly force beyond a reasonable doubt. Therefore, we are unable to file criminal charges. “

Theoharis, a onetime refrigeration mechanic, is still recovering from his injuries and is no longer able to work, according to Budge, one of Theoharis’ lawyers.

“From Dustin’s perspective, he is happy to put this case in the rearview mirror and move forward with his life. This settlement allows him to do that, and he’s thankful justice has been served,” Budge and Heipt said in their statement.

Budge & Heipt is a law firm committed to obtaining justice for victims and their families who have suffered wrongful death or catastrophic injury due to police brutality and police misconduct in jail or prison. For cases such as wrongful death due to police shootings, Budge & Heipt can help. Please contact our office for a free consultation.

If you or a loved one has been a victim of serious injury and/or death at the hands of police or in jail or prison, tell us about your case.