Suit alleges a very different string of events than the one detailed by the Sacramento District Attorney’s office
Attorney Stewart Katz, representing John Hesselbein, filed a federal civil rights suit on Monday stemming from an action on January 30, 2011 where Mr. Hesselbein was shot “at point-blank range in the head with a high-powered round fired from an assault rifle while Hesselbein was seated handcuffed in the back of a patrol car.”
“This conduct was ratified by the City of Elk Grove and the Elk Grove Police Chief Robert Lehner and further, a cover-up was attempted to obfuscate this unjustified shooting,” the suit alleges.
Mr. Hesselbein further alleges that the improper use of force in this case was the result of policies, practices and customs of the City of Elk Grove and Chief Lehner.
The lawsuit was filed a few weeks after Sacramento District Attorney Jan Scully sent an 11-page letter to the Elk Grove Police Department that exonerated police officers – at least criminally – for shooting a suspect who was handcuffed and seated in the back of a patrol car.
Mr. Katz disputed the finding by the Sacramento DA, calling the officer’s action “unreasonable,” given the situation, and also likened it to an execution attempt.
“You couldn’t have Tasered him – instead of lining up your shot with his head?” he told the Bee.
“If you have time to have this discussion with him, you obviously had time to take affirmative steps … short of trying to kill him,” Mr. Katz added. “This isn’t like ‘I saw the motion and reacted instantly.’ They’re literally talking about it.”
According to published accounts, Mr. Hesselbein was arrested around 3 am after his wife called to complain that he had threatened her and their young daughter. The original release said that the suspect had moved around in the back seat of the police vehicle while handcuffed.
When the suspect had refused to leave the home, he verbally threatened an officer and “remained by a security door in a shooting position,” according to published reports in the Sacramento Bee, taken from the department’s spokesperson.
He was searched, and they found no weapon. He was then handcuffed and taken to the police vehicle.
The police then report that the suspect “suddenly started shouting that he had a gun and made quick movements as if he did. An officer using the computer in the driver’s seat quickly left the car and told other officers that [the suspect] said he was armed.”
The Bee went on to report, that he “moved his hands toward his rear waist band, ignoring officers’ commands to keep his hands visible.”
“[The suspect] stretched his body away from the officers and reached below the backside of his waistband where his hands were in his pants positioning as if he was [sic] aiming a weapon,” the report said. “Believing that [the suspect] was about to shoot a weapon and fearing for his safety, along with the safety of the other officers present, the officer with the rifle fired a single round that grazed the left side of [the suspect’s] face.”
He was then taken from the vehicle, and no weapon was found on him, police said.
The suit alleges a very different string of events than the one detailed by the Sacramento District Attorney’s office.
According to the suit, the incident began in the early morning hours of January 30, 201 when Elk Grove police responded to Mr. Hesselbein’s wife, who had “placed a histrionic call to the police which included significant misstatements of Hesselbein’s criminal history, including that he had just been released from prison for killing someone.”
Nevertheless, before they arrived, “they learned that he wasn’t on parole nor on felony probation and that he had a tragic involuntary manslaughter conviction when he was still a teenager.”
The suit goes on to say, “Despite the histrionic nature of the call, Hesselbein’s wife did not report her husband as either threatening her with or having access to any weapons.”
The suit acknowledges that Mr. Hesselbein was drunk with a blood alcohol level of at least .20.
Mr. Katz writes that based on the nature of the call, a large number of police officers showed up at the residence. The suit lists eight members of the Elk Grove Police Department.
After the officers arrived on the scene and contacted Hesselbein’s wife, Sergeant Iannone determined that there was nothing more than misdemeanor conduct.
In his statement, Sgt. Iannone said, “After talking to [the victim] I realized that we only had a misdemeanor crime.”
Officer Diaz agreed, “We determined that we only had a misdemeanor crime.”
The suit cites similar statements from Officers Jimenez, Insixiengmay and Bornhoeft.
The suit claims, “Prior to the officers’ first contact with Hesselbein they had determined that: his conduct warranted no worse than a misdemeanor; he was not on felony probation or parole; he was drunk; he had not threatened any harm to his daughter; and that there was no reason to think Hesselbein was armed or had access to a firearm.”
However, when the police approached the front door, “Officer Jimenez claims he saw Hesselbein’s silhouette move in a manner that made him think Hesselbein had a gun, although Jimenez affirmatively denied ever seeing a gun in Hesselbein’s hands.”
He then said something to the effect of “I got something for you,” (Officer Jimenez’s statement) or “You want some of this?” (Sergeant Iannone’s statement). At this point, the officers backed away from the door and Mr. Hesselbein threw a beer can out the front door.
Mr. Katz claims that when they arrested him, “Officer Bornhoeft did not double lock the handcuffs. Double locking is required because otherwise, as happened here, the handcuffs will, with any movement of the hands, continue to ratchet tighter and tighter, prompting a cycle of further movement to alleviate pain caused by the handcuffs, resulting in still tighter handcuffs.”
Officer Bornhoeft stated he “thoroughly searched” Hesselbein. According to Officer Bornhoeft, his search revealed a cell phone and “something that felt like a small stack of business cards” in his pocket but no weapon.
“The officers did not see any other persons or any indicia which would lend credence to Officer Jimenez’s phantom observation of Hesselbein having a gun,” the suit claims and then adds: “Following the sweep, because of Jimenez’s misperception, Hesselbein’s wife was directly asked about whether her husband had a gun. She stated that she hadn’t seen him with a gun nor had he spoken about having a gun.”
Officer Beckham would then turn off the in-car camera, “As we were gathering, I saw that the indicator light on my in-car camera was still on. I felt the scene was contained and there was no more need to keep it on. I walked over to the car and turned off the in-car camera.”
At some point Hesselbein, who was still handcuffed in the back of Robinson’s patrol vehicle, may have said something about a gun. That prompted Officer Robinson to ask Hesselbein through the back driver’s side window “what do you mean?” but Hesselbein did not give a clear response, according to Officer Robinson’s statement,
Writes Mr. Katz, “This led to an unhurried discussion regarding what Hesselbein had said, the extent and the quality of the pat-down search and what course of action, if any, they should take. As recounted by the officers, this conversation resembled a melding of an Abbott and Costello ‘Who’s on First?’ routine with the children’s game ‘Broken Telephone’ which is, ironically, also called the ‘Grapevine’ game. None of this was discussed with either a sense of urgency or manner that suggested that the officers believed Hesselbein was an immediate threat to harm anybody .”
According to the suit, Officer Diaz decided to walk around to peek in the driver’s side window to see if he could get a better look at Mr. Hesselbein. Officer Templeton was unsure if Mr. Hesselbein was even handcuffed, although he couldn’t see Mr. Hesselbein’s hands but claims that someone said “he’s got a gun” or “he’s reaching for a gun.”
Sgt. Iannone doesn’t report hearing Mr. Hesselbein saying he had a gun but says he heard someone else say it and began “trying to form some sort of tactical plan” but apparently never did.
“Officer Bornhoeft reported that Hesselbein yelled loud enough that he had a gun for all the other officers to hear it,” the suit alleges. “Bornhoeft told Iannone that he thought he did a thorough search but ‘let’s drag him out and search him again.’ “
The suit further recounts, “The only sworn officer who was at the scene who was not with the Elk Grove Police Department was Los Rios Community College District Officer, Bryan Johnson. Johnson couldn’t hear “if the guy in the car was saying anything or not.” Officer Johnson was close enough to see that Hesselbein’s sweatshirt was pulled up, so that Johnson “was able to see the white of his skin.” Officer Johnson didn’t see a gun in Hesselbein’s waistband.”
Officer Beckham never saw a gun, however, at some point he wielded his assault rifle and threatened Mr. Hesselbein multiple times that if he kept moving, he would get his “grape peeled.”
Officer Beckham reported what happened next: “I came up with my rifle and got my sight picture of his head and took one shot. The subject slumped over and stopped moving.”
The reaction by other officers was surprise and conflusion upon hearing the shot. Officer Johnson reported, “I remember another officer asking was that him or was that us and someone said that that was us.”
Officer Robinson said, “We kept giving him commands not to reach in his waistband and to stop moving. That’s when I heard one gunshot and later determined that Officer Beckham had shot once….Sergeant Iannone asked if that was the subject or us that had shot. I believe it was Officer Beckham who stated that it was us.”
Mr. Katz argues, “There is no explanation in any of the reports why Hesselbein could not have been searched again prior to shooting him.”
Officer Jimenez reported that following the shooting, “there was something wrong with Officer Beckham. His blinking was odd. It looked like he was disoriented.”
The facts alleged in the suit differ markedly from the account that DA Scully gave that was printed in the Sacramento Bee.
The Bee reported a few weeks ago that DA Scully “argued that [Officer Paul] Beckham had reason to believe Hesselbein posed a threat and that he ‘had the right to act in self-defense and in defense of his fellow officers.’ “
The report continued, “Scully outlined the events preceding the Jan. 30 shooting, beginning with a 911 call from Hesselbein’s wife stating he was drunk, abusive, acting like a ‘fool’ and ‘crazier’ than when she phoned police for help two weeks earlier.”
“She also told the dispatcher – who then warned arriving officers – that Hesselbein had recently been released from prison for ‘killing someone,’ referring to his 1998 conviction for involuntary manslaughter, Scully wrote.”
“When officers approached the home on Callippe Way, Hesselbein opened the door and yelled ‘I got something for you mother-(expletive),’ Scully wrote. He raised his hands together and pointed them toward officers, as if he had a weapon, prompting one officer to yell ‘Gun!’ “
The incident eventually ended in the patrol car, as the suspect began yelling “I got a gun” while he put his handcuffed hands down his back waistband.
According to the report, the officer began to worry that he missed a gun during the search and “he told his fellow officers they should proceed as if the suspect had a gun, Scully wrote.”
The officer then warned Mr. Hesselbein “he’d be shot in the head if he didn’t stop moving.”
“After that warning, Hesselbein looked straight at Officer Beckham and made one final hard effort putting his hands down his pants like he was reaching into his waistband to get something,” DA Scully wrote.
The officer then fired the shot.
DA Scully added that the suspect told one of the detectives, “I’m sorry this happened. I don’t blame the officer for doing this. I know he was just doing his job and this was a tough decision he had to make.”
One thing that is critical to understand here is that the DA was evaluating whether there was evidence that a crime occurred. According to the Bee, she did not address whether the officer could have used other means of force to address this situation.
Mr. Katz dismissed this review and letter by DA Scully.
“This review, though resulting in an eleven (11) page letter, consisted of nothing more than a recital of selective portions of the reports with no critical analysis,” he writes.
The suit alleges that this is all part of an aggressive campaign of cover up. Mr. Katz writes, “Immediately following the shooting the Elk Grove Police Department embarked on an aggressive campaign to both cover up the wrongful and criminal actions of its officers and supervisors and to smear Hesselbein so as to minimize the gravity of the misconduct.”
“The ‘Code of Silence’ that exists within the Elk Grove Police Department ensures that officers will not admit even the most obvious and blatant misconduct by a fellow officer,” he added.
The Elk Grove Police Department sought the Sacramento County District Attorney’s cooperation in this cover-up, the suit further alleges.
“The District Attorney’s Office actively cooperated in this effort by the Elk Grove Police Department by purportedly doing an ‘independent review’ of the shooting,” Mr. Katz writes. “Plaintiff believes that this independent review is part of the practice of the Sacramento District Attorney’s Office to rubber stamp all law enforcement-involved shootings and law enforcement-caused fatalities in Sacramento County as justified.”
—David M. Greenwald reporting
[quote]”You couldn’t have Tasered him – instead of lining up your shot with his head?” he told the Bee.[/quote]
How do you tase someone through a closed car window? The glass is in the way.
[quote]Mr. Katz argues, “There is no explanation in any of the reports why Hesselbein could not have been searched again prior to shooting him.”[/quote]
How does a police officer get beside the rear car window, open the car door, drag the suspect out to carry out another search on him – a suspect who had made motions as if/said he had a gun (the suspect himself admitted as much, if I remember correctly from a previous article on this subject) – without exposing the body of/subjecting the police officer to being shot?
[quote]One thing that is critical to understand here is that the DA was evaluating whether there was evidence that a crime occurred. According to the Bee, she did not address whether the officer could have used other means of force to address this situation.[/quote]
And what other means could the police officers have used in this situation? A taser wouldn’t have worked bc the glass in the rear window of the police car was in the way. About the only thing I can think of is to wait the guy out, and see if he carried out his threat he had a gun. But to do so means there was the possibility of him firing blindly at anyone and everyone, hitting a police officer or innocent bystander in a residential neighborhood.
The bottom line is the suspect was told what to do, refused, made as if he had a gun in his pants and said as much. The suspect even stated he got what he deserved, assuming that statement was in fact made. Since he has lawyered up, the defendant will probably deny he ever said it, the cops will claim he did, and there is no video to tell one way or the other. Perhaps there will be witnesses who can testify to this one way or the other.
In this case, the fact that the video was turned off doesn’t bother me. Once the police put the suspect in the car handcuffed, there would be no further need to keep the video cam on.
I don’t believe in police brutality, ala the Rodney King beating, but this suspect it would seem brought this on himself. Of course that is assuming we have the facts straight, which we may not. But I certainly don’t find the defense attorneys comments particularly compelling. I would find them to have more merit if the suspect had been standing OUTSIDE THE POLICE CAR.
“How do you tase someone through a closed car window? The glass is in the way. “
If you can shoot him, you can tase him, no?
“How does a police officer get beside the rear car window, open the car door, drag the suspect out to carry out another search on him – a suspect who had made motions as if/said he had a gun (the suspect himself admitted as much, if I remember correctly from a previous article on this subject) – without exposing the body of/subjecting the police officer to being shot? “
After reading Mr. Katz’ complaint, I now have doubt that the defendant said he had a gun. But in a strict sense, you put a gun on him, lean him over and check him for weapons.
“The bottom line is the suspect was told what to do, refused, made as if he had a gun in his pants and said as much.”
We don’t know that.
“The suspect even stated he got what he deserved, assuming that statement was in fact made.”
We don’t know that either.
“In this case, the fact that the video was turned off doesn’t bother me. Once the police put the suspect in the car handcuffed, there would be no further need to keep the video cam on. “
Except that now it is the police’s word against this guy’s word which ordinarily you would side with the police except you have a shooting of an unarmed man, in cuffs, the DA apparently did not scrutinize the statements by the police very well as they contradict each other.
It’s so hard to follow what’s quoting the suit or the police reports or the [u]Bee[/u] or your summarizing from one or more sources, I may give up on this one. No reflection on you, it’s just complicated. A couple questions, though:[quote]”Bornhoeft told Iannone that he [i][b]thought[/b][/i] he did a thorough search but ‘let’s drag him out and search him again’.”[/quote]Italics are whose?
When you say, “according to published sources,” which ones are you quoting other than the [u]Bee[/u]?” Didn’t an earlier story describe the perp screaming that he had a gun?[quote]If you can shoot him, you can tase him, no?[/quote]Well, not necessarily. If the bad guy is behind a door or a window or 100 feet away, you cannot, no?
It’ll be interesting to see how this one plays out.
ERM “”How do you tase someone through a closed car window? The glass is in the way. ”
DMG, “If you can shoot him, you can tase him, no?”
I assume it would depend on whether the window was down or if the car door was open in such a way that made tasering him possible. I don’t think taser prongs or whatever they are called can go through glass or a car door. I didn’t read anywhere in this story what the door/window situation was at the time.
JS,
“If the bad guy is behind a door or a window or 100 feet away, you cannot, no?”
From what I’ve gathered, they were close enough to use a taser.
“Once the police put the suspect in the car handcuffed, there would be no further need to keep the video cam on.”
This case would seem to contradict that statement. The continued use of the video cam would be very useful from the suspects point of view is this was indeed a case of police brutality, or from the police man’s point of view if the use of this force was indeed justified. Why would one assume that abuse behavior would only occur before the suspect was subdued ?
[quote]If you can shoot him, you can tase him, no? [/quote]I think
My understanding is the taser probes will not penetrate vehicular glass, nor metal. Bullets can. But facts should not get in the way of good story.
I am positive Hesselbein was shot through an already open rear door as opposed to being shot through glass or teh car’s door.
Are any of you really shocked that MR Katz has a different view than the Sac County DA. Katz makes a living by suing. There is no payday in agreeing with the DA.
Civil attorneys are actually pretty smart. They don’t actually have to be right or prove that EG PD did anything wrong. They only have to show is that EG PD [b]MIGHT have[/b] done something wrong to get a paycheck.
JustSaying:
I tried to put it into sections to make it clearer, next I will give them headings.
I used the Bee to cite the DA’s report since I never got a hold of it.
But the bulk of the story was quoting directly from the complaint which I did get a hold of.
I didn’t put the italics there, in fact, I didn’t even realize that there were italics. Apparently the italics were in the quote from the complaint, therefore Mr. Katz put them there.
Published accounts meant I was not sure where it came from because it was two stories ago I put that chronology together from multiple media accounts.
“If the bad guy is behind a door or a window or 100 feet away, you cannot, no? “
The door was open apparently and it was less than 100 feet.
Mr. Obvious:
There is also no payday unless he wins the case. The DA had this case closed last week, now I think Mr. Katz kicked it back open and cast a lot of doubt on their investigation and findings. We’ll see what happens.
I hope he wins and wins BIG! This is just wrong in so many ways. The cop’s “peel his grape” comment tells me that he intentionally fired that weapon at him and intensionally missed killing him. Let’s face it, the police have extensive weapons training and if he wanted to kill the guy he could have so he was being a smart ass and wanted to teach the guy a lesson and before anyone has anything to say about that comment let me say this- if he shot the guy in “self defense” and missed, why wouldnt he shoot him again and kill him? They know what they are doing and they know that everything they do will be covered up. Has there been any law enforcement that has been found guilty of excessive force? I havent heard of any.
[quote]If you can shoot him, you can tase him, no? [/quote]
Obviously you don’t know how tasers work. There must be physical contact between the end of the taser prongs and the target; and the taser prongs will not go through glass. So no, you cannot tase the target, but you can shoot him w a bullet.
[quote]After reading Mr. Katz’ complaint, I now have doubt that the defendant said he had a gun. But in a strict sense, you put a gun on him, lean him over and check him for weapons. [/quote]
How do you get the suspect OUT OF THE CAR w/o getting shot first if he did have a gun? The answer is you really can’t. Because this idiot threatened he had a weapon (assuming this is true of course), law enforcement had no choice but to believe he very well might have a weapon and the only choice open to them was to shoot the guy or wait him out. But waiting him out would have endangered anyone nearby, if he did have a gun and started firing away.
[quote]This case would seem to contradict that statement. The continued use of the video cam would be very useful from the suspects point of view is this was indeed a case of police brutality, or from the police man’s point of view if the use of this force was indeed justified. Why would one assume that abuse behavior would only occur before the suspect was subdued ? [/quote]
The video cam points towards the front of the car, so would have been useless in this case.
[quote]The video cam points towards the front of the car, so would have been useless in this case.[/quote]
I reread the article, and it talks about an “in-camera” video cam. Don’t know if that means the camera is inside the police car, or takes pictures of what happens inside the police car. In so far as I am aware, police video cams are pointed towards the front of the car, to record what happens upon arrest at the front of the car. It usually doesn’t cover what happens inside the police car, unless they have instituted something new I don’t know about.
[quote]I am positive Hesselbein was shot through an already open rear door as opposed to being shot through glass or teh car’s door.[/quote]
How do you know this? Especially since the bullet grazed the left side of his head. Also, it would be nearly impossible, w/o exposing yourself to getting shot, to tase someone through even an open car door or open window, even assuming it was open. Go outside to your car, open the back door, and see what kind of machinations you would have to go through to make sure the taser probes would hit the target without him first shooting you.
[quote]There is also no payday unless he wins the case. The DA had this case closed last week, now I think Mr. Katz kicked it back open and cast a lot of doubt on their investigation and findings. We’ll see what happens.[/quote]
First of all, we don’t know what kind of fee arrangement Katz had with the defendant. Secondly, in a case of this notoriety, Katz gets free publicity.
To Technichick: Would you have preferred the police kill the defendant? If he threatened law enforcement w a gun, they could have killed the defendant, and it would have been a “justified” shooting (read that to mean “legal”). Think about that. Be thankful they held back…
To dmg: From what you are saying, we don’t know anything about anything! Since we have no facts to base this case on, why are we even talking about it, since nothing at all is certain according to you now. There must have been witnesses, e.g. the wife, who saw and heard what happened. Is she not saying anything?
Technickick,
“if he shot the guy in “self defense” and missed, why wouldnt he shoot him again and kill him? They know what they are doing and they know that everything they do will be covered up.”
The officer has discretion, no? Self-defense in this case could mean incapacitating or subduing the suspect, right? Through death or injury, the single shot could serve its “self-defense” purpose.
From above, the officer who fired the shot said, “I came up with my rifle and got my sight picture of his head and took one shot. The subject slumped over and stopped moving.”
If the officer determined after his first shot that the suspect was no longer a threat to the safety of himself and his fellow officers, then he may have thought there was no need to fire a second time.
ERM,
“The video cam points towards the front of the car, so would have been useless in this case.”
Don’t these cams pickup audio as well? If so, that could be useful.
“How do you get the suspect OUT OF THE CAR w/o getting shot first if he did have a gun? The answer is you really can’t”
It’s not mentioned here in what way the suspect’s body was positioned, but that could make a difference as to how they could subdue him without putting themselves in harms way. Maybe by coming at him through the opposite rear door headfirst? I don’t know if that would’ve been possible. If he was leaning away from the open door and making these movements, then maybe officers could have subdued him by pulling him out head first through the other door while having the officers out of the possible line of sight from the suspects perceived weapon. Could they have opened the opposite rear door and tased him from there. Seems he had some movement, but would he have had enough to position his hands/gun and point it at the officers grabbing him from the other door?
Sounds like some of the contributors don’t mind seeing the police playing a little Russian roulette with some maniac who might indeed have a gun, for all the police know.
I guess from discussion above that even cuffed behind back, there is enough free play of movement so it is possible to fire a weapon (presumably small gun). What about additional wrist/hand restraints for suspects who seem to be particularly dangerous/out of control? Imagine if the suspect did indeed have a weapon in the back of his waistband but did not announce it (opposite to what occurred), and succeeded in firing it off while he was being driven in the patrol car!
jimt: The question is whether they had to shoot him to find out or whether they could have used non-lethal means first. I’m increasingly leaning toward the latter particularly in light of what I’m discovering.
An aspect of this that I have not seen commented on is the adequacy (or lack thereof) of the performance of the officer conducting the weapons search before placing the suspect in the car. If the suspect had actually had a weapon, leading to injury to him, or to an officer, what is the outcome for the apparent negligence in missing a weapon on search?
Part of the problem here is that the police were told by the woman that he had a weapon. They didn’t find one inside. So they were convinced that it had to be on him in person. The guy who searched him responded to a question about a search with “I think so.” That wasn’t convincing to the other officers.
A point that is somewhat tangential, but I believe relevant, is made by today’s NPR article on the Danziger Bridge shootings in New Orleans.
While it is true that we rely on our police tomprotect us, it is important to understand that their motives are not always pure, and that real abuse of power, and cover ups do occur. I think it is an error in judgement to assign greater credibility to either the defendant or the police without having all of the pertinent details, many of which are missing here.
Tomorrow’s article should fill some holes here. The one thing I really don’t know is the time line for what happened here. The way the reports are written make it seem like it took a lot of time, but perhaps it was just a few seconds.
[quote]Don’t these cams pickup audio as well? If so, that could be useful. [/quote]
I didn’t think of that – but it is a really good point.
Bottom line – had the defendant not done what he did (which we don’t know if he did it or not apparently), the officer would not have to have fired. Sounds to me like the defendant brought this on himself, no? Or am I missing something here?
“The door was open APPARENTLY….”
Why don’t we KNOW? What source uses the word “apparently”? Is this fact in dispute? Or, has this just a guess up to this point?
It meant I was told but had not verified that the door was open. Now I have.
This is from Officer Beckham’s statement: “I went over to the passenger’s side rear door of the patrol vehicle and used my long-range rifle to cover Officer Robinson as he approached the passenger’s side rear door. Someone, I don’t know who, opened the rear passenger door.”
“Sounds to me like the defendant brought this on himself, no? Or am I missing something here? “
Based strictly on the police reports, the defendant clearly brought some of this on himself with his conduct but he’s handcuffed in the back of a police car.
There were other massive screw ups by the police, who which caused this problem. They acted on incorrect information about a gun that never existed, they failed to properly search the individual, and then they shot him with a gun without pursuing other non-lethal means first when the opportunity clearly existed for them to do so.
Sounds like there is plenty of blame to be passed around here to me.
Agreed Elaine, that the suspect is responsibly for his own actions that precipitated the police response. This does not, in my opinion, exonerate the policeman from endangering himself and his colleagues by performing an inadequate search or the shooter, if there were indeed less dangerous options available.