Madia Newville won an important court victory and secured a $525,000 settlement in a federal civil rights lawsuit against the Las Vegas Metropolitan Police Department and two of its officers.
For one of those officers, this is the second major court loss and settlement in recent years. The U.S. Court of Appeals (9th Cir.) previously ruled against Mark Hatten in a case where he tased Anthony Jones for more than 90 seconds–until Jones died. That case settled for $500,000.
Now, after a federal court found Hatten to have violated the Constitution, the LVMPD quickly settled. Hatten is still employed and, to our knowledge, has not been disciplined.
We represented Jason Funke, a Minnesotan who briefly lived in Las Vegas and was shot by police during a mental health crisis. The case is Jason Funke v. Mark Hatten, et al., No. 2:19-cv-01335-RFB-EJY, (D. Nev), No. 21-16150 (9th Cir.). Joshua Newville represented Plaintiff-Appellee Jason Funke. Craig Anderson and Kathleen Wilde represented Defendants-Appellants.
The case arises from an August 5, 2017 incident in which the LVMPD responded to a 911 call at a church. Funke, who suffered from mental health problems, was naked, suicidal, and initially had a handgun. Even though Funke threatened nobody but himself, officers never attempted any form of crisis intervention. They ultimately sent a dog after Funke and shot him in the back as he ran away, naked and unarmed. Funke nearly died, had to undergo surgery, and was hospitalized for two weeks. In addition to emotional trauma, he now suffers from serious complications related to unrecoverable bullet fragments.
The incident was captured by numerous audio and video recordings. The following, courtesy of the Las Vegas Review-Journal, splices together a small sample of that footage:
WARNING: GRAPHIC CONTENT
BACKGROUND PRIOR TO AUGUST 5, 2017
Funke was born and raised in Minnesota. He was a good citizen with no criminal history. In 2017, Funke’s mental health deteriorated while he was living in Las Vegas. In addition to suffering from a complication related to auditory processing, Funke began suffering from recurrent and serious Major Depressive Disorder and had ongoing suicidal ideation.
On the evening of August 3, 2017, Funke walked across the street from his home near Sunset Park and entered Life Springs Christian Church. He was carrying between $25,000 and $30,000 in cash. For approximately 45 minutes, he spoke to a church elder about his mental and emotional state. Crying, Funke told the elder that he was in a dark place and that he intended to kill himself. During the conversation, Funke donated the cash. After talking for awhile, the elder believed that he had helped Funke feel better, and they agreed to meet up the next day and talk some more.
On August 4, 2017, Funke met with the elder and another church leader. They noticed Funke still seemed distraught—even disturbed. They learned he had been experimenting with drugs and was suffering from paranoia and self-loathing. They talked with him about their faith, and by the end, they believed Funke had accepted their faith and was in a better place. Funke said he wanted to make another cash donation. They did not report Funke’s suicidal thoughts to authorities, and overlooked a text from him that night that suggested he still intended to commit suicide.
FUNKE RETURNS TO CHURCH AT THE PEAK OF A SEVERE MENTAL HEALTH CRISIS
On August 5, 2017, Funke’s mental health crisis worsened. He walked back to the church, carrying a handgun and another $25,000–$30,000. Once there, he took off his clothes and sat in front of the church, placing the money and handgun on the ground in front of him, next to his pile of clothes. A church employee noticed Funke sitting naked in front of the church and told her husband, the leader who met Funke the prior day. The leader arrived a few minutes later, and immediately observed that Funke was mentally unwell. After also seeing the handgun, pile of cash, and that Funke was naked and confused, the church leader and his wife called 911.
CHURCH EMPLOYEES CALL 911
The church employees called 911 at 11:00 a.m. and reported that Funke had a gun and was sitting in a “meditation pose” in front of the church. The leader reported knowing Funke and that he thought Funke was suicidal and nonsensical.
He’s suicidal. . .Yeah this man is suicidal. I talked to him; he’s not making sense—he’s saying things that don’t make sense. He was here the other night, talked about killing himself. His name is J… Funke.
He just doesn’t talk in a sane manner. I just sat down with him yesterday in a coffee shop and we talked for like an hour and a half and then when I approached him just now, he didn’t recognize me. He [asked if I was] Jesus. I said, ‘No, I’m Keith.’ And he goes, ‘while if you’re not Jesus, I can’t help you.’ So, he’s just not talking in a sensical manner. And I’m afraid what’s going to happen when he gets out of this meditation pose he’s sitting in with this gun right next to him.
The leader made it clear that he thought Funke was mentally ill, and he wanted to be sure the responding officers knew Funke was suicidal.
Caller: Are the officers going to know that this man desires to die when [they come] here?”
Operator: Oh, yeah, they already know that he’s suicidal . . . I just told them about the coffee shop yesterday and now he doesn’t recognize you. I told them everything you told me told me about the pile of money, clothes, that he’s a poker player not making any type of sense.
The leader also offered to help talk to Funke when the officers arrived.
During the call, a dispatcher notified all LVMPD units that Funke was naked, suicidal, and had not threatened anyone.
LVMPD began responding, including: an air unit (helicopter), more than a dozen officers, a K9 unit, and at least two members of the Health Care Crisis Intervention Team (“CIT”). The CIT officers are purportedly trained, “on how to handle those suffering from mental illness and those in emotional volatile crisis.”
Officer Melvyn English
Melvyn English was the K9 Officer and was the first to arrive on scene. After English set a post, he variously talked with dispatch and others while waiting for backup.
From the moment English arrived, he struggled to control the K9, which repeatedly ignored his verbal commands (given mostly in German) and repeatedly pulled ahead instead of heeling at his side. This led to English repeatedly yelling at–even striking–the dog.
Officers Mark Hatten, C. Staheli, and D. Flamm
Mark Hatten arrived with C. Staheli and D. Flamm, who drove behind him and were part of a CIT protocol dispatch. Staheli was a CIT officer and Flamm his trainee. They, along with Hatten, joined English at his post on the south side of the church.
Shortly after Hatten arrived, English started discussing Hatten’s shooting backdrop and explained that another officer (Hutcherson) would shoot Funke if he tried going inside the church.
We do have an officer inside the only access door with a shotgun. So, we can give him a little play. If he goes inside, he’s gonna get dropped. Okay?
The helicopter arrived shortly after English and gave radio play-by-play.
Sgt. M. Calarco was the supervisor in charge. He directed arrest teams to set up north and south of the church, and for a rifle.
C. Hutcherson was the second officer to arrive on scene. After he arrived and was inside the church, the Air Unit told him to stay away from the front door, and to keep others away.
Video shows other officers were also part of the response, including Officers M. Kinney, B. Hunn, S. Freeman, R. Sorenson, E. Quintero, M. Rowe, J. Downing, and other unnamed officers.
FUNKE STANDS UP AND WALKS ACROSS THE CHURCH PLAZA WITH THE HANDGUN AT THIS SIDE
More than ten minutes after LVMPD arrived, Funke stood and walked across the plaza with the handgun at his side. He did not point it at anyone, including himself.
FUNKE STANDS WITH THE HANDGUN AT HIS SIDE FOR MORE THAN FIVE MINUTES
Funke then stood in one spot for five minutes and nineteen seconds. He kept the handgun at his side and did not point it at anyone, including himself.
The primary helicopter officer noted:
Ok, he’s moved his shoulder a couple of times like he’s trying to get the courage here or something. He’s looking straight up in the air, he’s still facing southbound, he hasn’t moved. … Have we started any dialogue with him at all? Like, P.A. or anything? He’s starting to look at the handgun.
AS FUNKE STANDS, ENGLISH AND HATTEN DISCUSS WHEN TO SHOOT HIM
While Funke was standing still on the church plaza, English and Hatten continued their discussion about when to shoot him.
English: On the left, we gotta shut him down. We gotta draw a line in the sand on the left guys; we can’t let him go to the apartments. So, determine what you want to draw the line at.
WHILE FUNKE STANDS STILL, ENGLISH ANNOUNCES HIS INTENT TO ATTACK FUNKE WITH THE DOG IF FUNKE DISCARDS THE HANDGUN
While Funke stood still on the church plaza, English announced his intent to attack Funke with his police dog if Funke discarded the handgun.
English: If he drops the gun and walks away from it, I’m going to deploy when I get a good enough distance, okay? Don’t shoot my dog, guys!
Hatten: Nope. Won’t do it. Got it.
English: If I yell, ‘dog out,’ let the dog do his thing.
AS FUNKE STARTS SLOWLY MOVING AND CALARCO ASKS FOR AVAILABLE CIT OFFICERS, HATTEN ANNOUNCES HIS INTENT TO SHOOT FUNKE
As Funke started slowly walking around the plaza again, with the handgun at his side, Calarco asked over the radio if there were any CIT officers available to talk with Funke if he dropped the handgun. At the same time, Hatten told English, Staheli, and Flamm that he was going to shoot Funke, even though nobody had given Funke a single command or warning.
Hatten: He’s looking back.
English: Heads up, boys.
Hatten: He’s startin’ to move. He’s startin’ to move. I’m gonna take a shot.
STAHELI GIVES FUNKE COMMANDS; AS FUNKE INSTANTLY COMPLIES, CALARCO NOTES THAT ENGLISH HAS THE DOG IN FUNKE’S PATH
Staheli heard Calarco’s question and Hatten’s announcement. Before Hatten pulled the trigger, Staheli ordered Funke to: 1) stop moving, 2) drop the gun, 3) put his hands up, and 4) walk toward the officers. Funke immediately complied.
Staheli: Stop! Stop! Put the gun down! Put your hands up, and walk towards me! Walk toward me! [~Dog barking~] Walk toward me! [Dog barking] Come on, keep walking. [~Dog barking~] Keep walking. [~Dog barking~] Good job! [~Dog barking~] Come on, keep walking towards us. [~Dog barking~]
Air Unit: He’s walking really slow. Handgun in his right hand. And now he’s… ok he just dropped the gun and put his hands up. I don’t know if someone is challenging him or what but he just put his hands on top of his head. He’s walking away from the gun to the north. His hands are over his head. He’s, uh, continuing to walk northbound. I think he’s walking towards the K9 unit.
As Funke complied, Kinney offered to go retrieve the gun and Calarco noted that English had the dog in the path Funke was walking.
AS FUNKE COMPLIES, THE AIR UNIT SUGGESTS SECURING THE HANDGUN; OFFICERS MOVE TO DO SO; CALARCO AGAIN NOTICES THE DOG
Even though Funke was complying with Staheli’s commands, English interrupted Staheli and started giving orders—stepping onto the sidewalk. In doing so, he put the overexcited dog directly in the path Funke was headed. Funke slowed, but complied as he approached the four officers, dog, sniper rifle, shotgun, and handgun.
Meanwhile, the Air Unit radioed that someone could secure the handgun Funke had discarded—noting that although they could theoretically be in a crossfire, he could not see Funke, who was still entirely naked, having any other weapons.
Air Unit: The handgun is laying on the ground if anybody can get up behind him—officer that’s inside, if you come out the door behind him right now, he won’t see you and you can get custody of that handgun, but you will be in a crossfire; I just don’t see this guy has any other weapons on him.
In response to the Air Unit’s broadcast, Calarco, Downing and Kinney immediately started running in from the south. As they did so, Calarco again noted that English was threatening deployment of the dog. At the same time, at least six more officers, including Hunn, Freeman, Spencer, and Quintero started running in from the north.
AS FUNKE APPROACHES THE OFFICERS, CALARCO WARNS ABOUT THE DOG
Funke continually complied with commands and walked nearly 100 feet away from the handgun and toward the officers. As he approached them, Calarco cautioned:
Watch the dog! We have the [handgun]. He’s not getting to it!
Indeed, Calarco and Downing were running across the parking lot to retrieve the handgun. Others were also running from the north.
HUTCHERSON INTERRUPTS EVERYONE BY WARNING OF “CROSSFIRE” AS OFFICERS SHOUT AT FUNKE AND MAINTAIN THREATS OF FORCE
Hutcherson responded to Calarco’s warning by saying:
Copy that. Uh, units watch crossfire. The ones that’s crossing the parking lot right now.
Calarco and Downing had almost reached the handgun when Hutcherson’s crossfire response startled them—stopping them dead in their tracks. Surprised, Calarco yelled, “What?!” and Downing repeated the warning. They backed off instantly, ten feet from the handgun. The groups approaching from the north also slowed, with Hunn commenting on the “crossfire.”
Meanwhile, English and Hatten maintained—even escalated—their threats of force. Hatten raised the position of the sniper rifle he had aimed at Funke, and English moved the barking/lunging dog onto the sidewalk while joining Flamm and Staheli in yelling at Funke.
FUNKE GROWS UNEASY, TAKES TWO STEPS FORWARD, THEN RUNS; ENGLISH INSTANTLY RELEASES THE DOG
As officers yelled at him, Funke complied with a command to turn around. But as the officers all yelled and pointed guns, and as the dog went wild, he grew uneasy at the commands to, “Lay down on your face!” and “Lay down!”
After turning around, Funke took two steps forward—slowly at first—and then, as English approached with the dog and the officers screamed, Funke ran in the general direction from which he came—back down the sidewalk. English instantly released the dog, which first attacked Staheli.
AS FUNKE RUNS, CALARCO YELLS, “TAZE HIM, TAZE HIM!” AND HATTEN SHOOTS FUNKE IN THE BACK
Hatten chased Funke and aimed the rifle at him. Hatten did not warn Funke he would shoot if Funke did not stop running. As Funke ran, naked and unarmed, Calarco yelled, “taze him! taze him!” while Downing, who was nearest to the handgun, yelled, “stop right there!” Within a fraction of a second of both men yelling, Hatten shot Funke in the back. Funke was approximately 30 feet from the handgun.
AS FUNKE BLEEDS ON THE PAVEMENT, THE DOG ATTACKS HIM
The dog then attacked Funke, who was bleeding on the pavement. The dog tore into Funke’s arm, and English struggled to rip him off.
AS FUNKE BLEEDS OUT AND HUNN WRENCHES ON HIS SHOULDER, FUNKE BEGS FOR SOMEONE TO SAVE HIM
As Funke bled profusely, he begged for someone to save him. In response, Hunn wrenched on the shoulder in which Hatten shot Funke. Hunn then yelled at Funke and handcuffed him.
LVMPD TRIES TO JUSTIFY USE OF FORCE
First, it appears that LVMPD tried to subsequently justify the use of force by repeatedly stating, in conclusory fashion, that Funke was running for the handgun, and that Funke was a threat to them or others in the church. Defendants and LVMPD officers and administrators repeated this refrain to on‐scene witnesses (prior to taking their official statements), to the media, to other on‐scene officers, to Plaintiff, to Plaintiff’s family, to use of force investigators, to the Court in this case, and more.
Second, it appears that Defendants and LVMPD officers and investigators consulted each other and arrived at a shared version of events prior to completing interviews and finalizing the use of force investigation. For example, the LVMPD’s Force Investigation Team (“FIT”) Report appears to simply copy and paste several of the purported concerns held by individual officers, repeatedly using both identical and near‐identical language to describe the officers’ purported fears of deadly threat.
Third, officers falsely reported to the media that Funke repeatedly told them, “finish me” after he was taken into custody. Body camera footage revealed this to be a blatant lie.
Fourth, the final report of the Office of Internal Oversight Review stated that Hatten shot Funke when he, “was approximately 8-10 feet from his firearm.” This also seems to be a purposeful fabrication, as the underlying reports were very clear–Funke was nearly 30 feet from the gun.
Far from any semblance of a legitimate, probative investigation into the reasonableness of the use of force exerted against Funke, the FIT Report and Report of the Office of Internal Oversight and Review seem a failed effort to justify the shooting and secure qualified immunity in this case.
CLEARLY ESTABLISHED LAW PROHIBITED SHOOTING FUNKE
Long before August 2017, it was clearly established that it is unlawful for police to shoot an unarmed and fleeing subject in the back. Such deadly force is allowed only where a suspect threatens officers or third parties with death or severe bodily injury. Controlling caselaw was so clear that it prohibited police from shooting armed suspects who haven’t raised their weapon or otherwise objectively indicated a threat, as opposed to potentially armed… perhaps in another thirty feet. Thus, an objective and reasonable officer should have known that it was unlawful to shoot an unarmed and naked Funke in the back on the mere speculation that he was running to and/or for the gun—particularly against the rest of the on‐scene factual backdrop.
Furthermore, long before Hatten shot Funke, it was clearly established that it is unlawful for police to use deadly force without first giving a warning, where feasible. An objective and reasonable officer in Hatten’s position should have known that he needed to at least shout something along the lines of, “stop or I’ll shoot” before using deadly force.
FUNKE FILES SUIT
Madia Newville filed Funke’s case in August 2019. We pursued Hatten, English, and the LVMPD as defendants and brought five counts. In Count One, we argued that Hatten’s use of deadly force and English’s use of a police dog were both excessive force in violation of the Fourth Amendment. In Count Two, that the LVMPD violated the Americans with Disabilities Act (“ADA”) by failing to adjust their tactics in light of Funke’s mental health. In Count Three, a Monell claim against the LVMPD for unconstitutional policies and practices. In Counts Four and Five, state law claims for negligence, assault, and battery.
THE PARTIES PURSUE CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT
Because the events were captured by nearly-universal audio and video recordings, the parties immediately pursued cross-motions for partial summary judgment. In other words, because there were almost no fact disputes, both sides asked the Court to rule on key issues as a matter of law and prior to discovery. The primary disputes were:
1) whether Hatten and/or English violated clearly established constitutional rights or were instead entitled to qualified immunity;
2) whether the statute of limitations for ADA claims against public services in Nevada is one or two years; and
3) whether Funke sufficiently pleaded claims of unconstitutional policies and practices against the LVMPD.
DEFENDANTS MAKE KEY ADMISSIONS
when video accurately captures an event and there are no allegations or indications that the video is doctored or altered, or distorted the incident[,] the reasonableness of a use of force ‘is a pure question of law.’ [Scott,] 555 U.S. at 378. Here, the parties agree that the video is dispositive as to what occurred.
DEFENDANTS THEN ATTEMPT TO MAKE ARGUMENTS CONTRARY TO THEIR ADMISSIONS — AND THE LAW
Despite admitting that Funke did not threaten anyone with a gun, Defendants repeatedly argued that they perceived an unspecified immediate threat. Dkt. 25 at 7:12–14. Defendants repeated (again and again) that any reasonable officer would have perceived an immediate threat and, once less than lethal attempts failed, resorted to deadly force.
And, despite acknowledging that Funke’s subjective state of mind (like the officers’) was immaterial, Defendants argued that their conduct was justified by an interview Funke gave to use-of-force investigators while recovering in his hospital bed four days after surgery (and likely under the influence of painkillers and sedatives). See generally Dkt. 26. During the interview, Funke answered one of the investigators questions:
Q: Uh, so, when you started to run, where were you gonna run to?
A: I think I started running towards the gun. And I was – I was literally planning on just putting it to my heart and waiting. Waiting for anything to happen. But I don’t think could have pulled the trigger. I don’t know, It’s just one of those things.
In making these arguments, Defendants ignored the Ninth Circuit’s admonitions that:
- “[A] simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.” Mattos v. Agarano, 661 F.3d 433, 441–442 (9th Cir. 2011); Koiro v. Las Vegas Metro. Police Dep’t, 69 F. Supp. 3d 1061, 1068 (D. Nev. 2014), aff’d, 671 F. App’x 671 (9th Cir. 2016); and
- “[T]he Supreme Court has said that an officer may use deadly force only when a fleeing suspect poses a threat of serious physical harm,  not merely when a suspect potentially could pose such a threat.” Aquirre v. City of W. Covina, 187 F. App’x 755, 757 (9th Cir. 2006).
Thus, even if it was Funke’s intent to regain possession of the gun to point it at himself, that would not authorize Defendants to kill him.
COURT FINDS HATTEN LIABLE AND WHOLLY REJECTS DEFENDANTS’ EFFORTS TO DISMISS OTHER CLAIMS
In June 2021, the Court partially granted Funke’s motion and entirely denied Defendants’ motion. Its decision:
1) denied Hatten and English qualified immunity, found as a matter of law that Hatten violated Funke’s clearly established 4th Amendment right to be free from excessive force, and found that a material fact dispute precluded the Court from deciding whether English violated Funke’s 4th Amendment right;
2) held that the the statute of limitations for ADA claims against public services in Nevada is two years; and
3) held that Funke sufficiently pleaded claims of unconstitutional policies and practices against the LVMPD.
In other words, the Court held that a jury trial was not necessary to find that Hatten violated the Constitution and was thus liable to Funke. Furthermore, the Court wholly rejected Defendants’ efforts to throw out other key parts of Funke’s case.
INTERLOCUTORY APPEAL AND DISCOVERY SCHEDULE
Hatten and English immediately filed an interlocutory appeal of their qualified immunity denial to the 9th Circuit Court of Appeals. Simultaneously, the District Court and the parties agreed that the pending appeal would not hinder their ability to move forward with discovery. The 9th Circuit set a briefing schedule, and the District Court set discovery deadlines.
Shortly thereafter, the parties reached an agreement to resolve the matter for payment by the LVMPD of $525,000. The LVMPD Fiscal Affairs Committee approved the settlement on October 25, 2021.
IMPACT / FINAL THOUGHTS
Although the settlement does not constitute an admission of liability on the Defendants’ part, it resolves the case in its entirety (both at the District Court and at the Court of Appeals) and thus leaves the District Court’s holding regarding Hatten’s liability intact. That decision also clarifies that a 2-year statute of limitations applies to disability discrimination by police and other public entities and services in Nevada.
Jason and his family continue to focus on his recovery, which has been very difficult. We are all deeply saddened and disturbed by the Metro’s failure to prioritize the sanctity of human life.
It remains to be known whether the LVMPD and/or the citizens of Las Vegas will continue to accept: 1) Hatten’s employment, and 2) the conduct, policies, and practices of the LVMPD seen in this case–including but not limited to a complete and utter failure by the LVMPD to appropriately handle a nonthreatening person suffering from mental health problems.