Appeals court upholds ruling that OKC, former police chief not liable for suicidal man's death

A federal appeals court has upheld a judge’s ruling that Oklahoma City and one of its former police chiefs cannot be held liable for a police officer who shot and killed an unarmed suicidal man and was later sentenced to prison.

Earlier this month, the 10th U.S. Circuit Court of Appeals in Denver denied the appeal of Aronda Pigeon, who sought damages from the city and former Police Chief Bill Citty, following the shooting death of her son more than five years ago.

About 2:30 a.m. on Nov. 15, 2017, officers arrived at the courtyard of a housing complex in southwest Oklahoma City after a 911 call from Dustin Pigeon, 29, who had threatened suicide.

Pigeon, who was intoxicated, held a can of lighter fluid and a disposable lighter and threatened to set himself on fire.

Two officers wore body cameras. One pointed a less-lethal bean-bag shotgun. The other never removed his weapon from its holster.

They approached Pigeon and attempted to de-escalate the situation, asking him to put down the lighter fluid and lighter.

Moments later, Sgt. Keith Patrick Sweeney, a 34-year-old officer who was not wearing a body camera, approached Pigeon with his 9mm handgun drawn, yelling, "Drop it!"

Bodycam video showed the flashlight attached to Sweeney's gun shining on Pigeon.

Sweeney shouted: "I will (expletive) shoot you! Get on the ground!"

After Pigeon lowered his hands to waist level, an officer fired one round from a bean-bag shotgun, striking Pigeon in the left hip.

About the same time, Sweeney fired five shots with his handgun, striking Pigeon three times, including once in the heart.

Two years later, an Oklahoma County District Court jury convicted Sweeney of second-degree murder for the shooting death of Pigeon.

The jury recommended a 10-year prison sentence for Sweeney.

Oklahoma County District Judge Natalie Mai agreed with the jury's recommendation, telling Sweeney, a nine-year police veteran who also served in the U.S. Navy, that he shouldn't be treated differently because he was a police officer.

Earlier this year, the Oklahoma Court of Criminal Appeals upheld Sweeney’s conviction.

Predictable behavior?

In federal court, Aronda Pigeon accused former police chief Citty and Oklahoma City of failing to properly supervise Sweeney.

She also sought to hold Oklahoma City liable for Sweeney’s negligence.

Court filings show Sweeney had a long disciplinary history while working for the Oklahoma City Police Department.

He was hired as a police recruit in 2008.

In June 2011, the department gave Sweeney verbal counseling and remedial training after he used force to prevent a suspect from swallowing baggies of what Sweeney believed to be cocaine, court documents show.

In October 2011, the department gave Sweeney verbal counseling after he used profanity on the job.

A month later, the department gave Sweeney verbal counseling after he failed to make a police report concerning possible child abuse reported to him telephonically, and added his personal opinions to the call dispositions.

Three years later, in October 2014, the department reprimanded Sweeney for failing to comply with department procedures regarding barricaded people with mental illness after he barged into a home to use a Taser on an armed and suicidal woman.

In February 2015, the department gave Sweeney post-incident training on the proper positioning and use of police vehicles for cover after Sweeney and another officer shot and killed a man who drove his car at the other officer.

In 2016, the department reprimanded Sweeney for failing to properly book seized evidence into the property room, failing to document a meeting that took place outside of work hours, failing to work scheduled 8-hour shifts, and changing his work schedule without supervisor approval, according to court documents.

In March 2017, the department reprimanded Sweeney for using his police position to obtain confidential information regarding a case assigned to the Oklahoma Department of Human Services.

That same month, the department placed Sweeney on administrative leave while it looked into his investigative practices.

After Sweeney used profanity while making an arrest in November 2017, the same month he shot and killed Dustin Pigeon, the department ordered him to undergo remedial training on language usage.

U.S. District Court Judge Bernard M. Jones granted summary judgment in 2021 to Oklahoma City and former Police Chief Bill Citty.

Jones ruled that Aronda Pigeon failed to provide evidence that Sweeney’s prior misconduct would have alerted Citty that Sweeney would inevitably use excessive force against her son.

In addition, Jones rejected the claim that Citty acted with deliberate indifference to the risk of Sweeney violating a citizen’s constitutional rights.

Jones also granted summary judgment to Oklahoma City, rejecting Aronda Pigeon’s claim that the city should be held liable for Sweeney’s actions.

The federal judge found that evidence established Sweeney and the other responding officers were engaged in the protective function of attempting to take Dustin Pigeon into custody and prevent him from harming himself or others, which exempts them from liability under state law.

As opposed to a protective function, the Oklahoma Supreme Court has held that immunity does not apply when police negligently carry out a “law enforcement” function such as arresting someone.

In the 1999 case Salazar v. Oklahoma City, the state’s highest court wrote about statutory immunity:

“A scenario in which a law enforcement function is negligently carried out — as in actions incident to arrest or imprisonment — must be distinguished from negligently providing protective service. The former activity is unshielded by the immunity.”

In the Pigeon case, the 10th U.S. Circuit Court of Appeals in Denver on Dec. 14 upheld the ruling by Judge Jones of the U.S. District Court.

The appeals court cited the Oklahoma Supreme Court’s ruling on immunity.

The appeals court wrote that it has also applied immunity to situations where officers have shot and killed mentally ill people while attempting to take them into protective custody.

The court agreed there was not sufficient evidence of deliberate indifference on Citty’s part.

“Ms. Pigeon does not point to any prior incident where Officer Sweeney violated a person’s constitutional rights through the use of excessive force,” the court wrote. “Nor does Ms. Pigeon point to any evidence establishing a high predictability or near inevitability that Officer Sweeney would use excessive force when he had not done so in the past.”

The appeals court ruled that even in the incident where Sweeney used a Taser on a suicidal woman, in violation of established procedures, Aronda Pigeon did not produce any evidence establishing that Sweeney’s use of force was excessive or otherwise violated the woman’s constitutional rights.

The court noted Aronda Pigeon settled her claims against Sweeney.

In affirming the U.S. District Court’s ruling, the appeals court wrote:

“These undisputed facts all point to the conclusion reached by the district court — that the officers were there to protect Mr. Pigeon, not to arrest him for committing a crime or to engage in some other law enforcement activity.”

Meanwhile, Sweeney has faced other legal troubles while behind bars.

On July 8, 2021, Sweeney was charged in Marshall County with 12 counts of felony possession of child pornography.

That case was dismissed and Sweeney pleaded guilty to 12 counts of violating the Oklahoma Computer Crimes Act.

He was sentenced to eight years in state prison, to run concurrently with his second-degree murder sentence.

Gary James, the Oklahoma City-based attorney representing Sweeney, told The Oklahoman Sweeney accessed the internet through the Marshall County jail’s open Wi-Fi system.

“Mr. Sweeney always maintained he didn’t access child internet pornography,” James said. “It was another individual who was a registered child sex offender in that jail, and we would’ve fought the charges.”

This article originally appeared on Oklahoman: Appeals court finds OKC, former police chief not liable for man's death