By SHEILA BURKE , Associated Press
NASHVILLE, Tenn. (AP) — A federal appeals court has rebuked Memphis police for sending a tactical team to serve a misdemeanor warrant on a 67-year-old animal hoarder who was later killed by an officer, but the court upheld the dismissal of a lawsuit against the city.
The 6th U.S. Circuit Court of Appeals said Monday that Donald Moore Sr.'s January 2013 shooting was constitutional because the officer had reason to fear for his life. But the court said the decision to use the tactical team to break into Moore's home using stun grenades jeopardized the lives of all involved.
In their civil rights lawsuit against the city, Moore's three adult children said their father had no criminal record and the department should have sent a specialized team that defuses mental health calls instead of the tactical unit.
The suit said the department escalated the incident with Moore by using a tactical team that used flash bangs and broke into the man's home. Flash bangs are grenade-like devices designed to disorient people with loud noises and bright lights. Moore's children contended that their father called 911 when police broke into the home because he feared for his life.
The 6th Circuit Court opinion upheld the shooting because the 911 recording that picked up police commands in the background makes it clear that Officer Phillip Penny thought Moore was armed. A fully loaded gun with a round in the chamber was found in Moore's hand after he was shot, the opinion said.
The opinion didn't dispute that Memphis police had reason to be fearful of Moore. It noted that he gestured behind his back as if he had a gun during a previous visit by police concerning the animal hoarding. Moore's neighbor, the opinion said, had previously told police that the man was armed and said that if officers returned he would "shoot first and ask questions later."
Still, the opinion written by Judge Raymond Kethledge, questioned the wisdom of police entering the way they did.
"The warrant here concerned evidence only of a misdemeanor; and yet, the defendants chose a course of action that, though constitutional, unavoidably jeopardized the officers' lives along with Moore's," the opinion said. The officers, it said, had other options that didn't involve immediate physical confrontation.
In a separate concurring opinion, Judge Alice M. Batchelder called the police decision to use the tactical unit and the team's methods that night "appalling."
"The fact is that that the police department's conduct, while not constitutionally impermissible, was certainly disproportionate," Batchelder wrote. "Had cooler and more rational heads prevailed, Moore's life likely would have been spared and the Memphis Animal Services would still have been able to investigate the animal cruelty complaints it had received."
WMC-TV reported that 28 animals were later removed from the home, including cats, dogs, rabbits, hens and a rooster.
Memphis city officials did not immediately respond to an email seeking comment.
A lawyer for Moore's children said he was disappointed that the court upheld the dismissal of the civil rights lawsuit, and the family is considering whether to appeal. Still, the attorney noted the strong language used.
"It's clear that the court was troubled by the actions of the city," attorney Jeffrey Rosenblum said. "I hope that the city is troubled by the actions of its officers. We hope that the city will seek change, will seek to learn from this situation and make us all safer."
Moore's children still have a pending negligence lawsuit in state court over the incident.