In Hawatmeh v. City of Henderson,[1] the Ninth Circuit Court of Appeals affirmed the lower court’s dismissal of Plaintiffs’ constitutional claims in a case where, tragically, a minor hostage was shot by officers and died.
Background
In November 2020, Dianne Hawatmeh and her daughter Yasmeen had returned to their apartment complex when their neighbor, Jason Neo Bourne, confronted them. Bourne ran after them and subsequently kicked open the door of Diane and Yasmeen’s apartment. 12-year-old Joseph Hawatmeh and two housekeepers were already inside the apartment. Bourne shot and killed Diane and housekeeper Veronica Muniz, and shot and severely wounded Yasmeen. Joseph called 911, telling the Henderson (Nevada) Police Department (“HPD”) operator the name of the apartment complex and that someone was in the apartment with a gun. After threatening Joseph, Bourne located the family’s Cadillac Escalade car keys, took Joseph as a hostage, and left the apartment. He dragged Joseph to the Escalade, forced him into the front passenger seat, and sat in the driver’s seat.
Nine minutes after Joseph made his 911 call, Bourne called 911 using Joseph’s cell phone. After making strange comments including that he was “from the future” and that he and Joseph were “doing a movie,” Bourne informed the dispatcher that he wanted a helicopter, that he had a gun, and that he had taken a hostage. Bourne repeatedly threatened to kill Joseph while on the call and making threatening and odd statements. At least twice during the phone call, Bourne indicated that he had not taken his medications. He threatened Joseph with sexual assault.
In response to multiple 911 calls, HPD officers soon arrived at the apartment complex. The Escalade was parked in front of a wall, and a police officer stationed himself on the opposite side of that wall. At least 16 other HPD officers circled the vehicle, ensuring that the Escalade could not leave the scene. Police vehicles also blocked the parking lot road and the entrance to the apartment complex, preventing all access in or out of the parking lot. Bourne did not move the Escalade from the parking lot at any point and did not attempt to flee.
The HPD dispatcher told Sergeant Jaime Smith that Joseph “is saying that this man will kill him.” Sergeant Smith shouted at the Escalade, “Let me see your hands, both of you. Put your hands up, exit the vehicle.” Sergeant Smith announced over the radio that she saw a gun, and that “the child has his hands up.” Sergeant Smith yelled, “Sir, step out of the vehicle, let’s just talk. Let me see your hands sir.” Bourne told Joseph that “[t]his gun’s loaded,” asked Joseph if he wanted to die, and announced that he was going to “shoot [Joseph] in the brain.”
At 11:23:42 a.m., a female voice over the police radio stated, “[H]e’s saying open your mouth to the 12-year-old.” Sergeant Smith asked the HPD dispatcher to talk to Bourne and see if he would roll down the window, but the dispatcher did not communicate that request to Bourne. At 11:24:31 a.m., Sergeant Smith told Officer James Pendleton to “[t]ake the shot if you have it.” At 11:24:36 a.m., Officer Pendleton fired a single gunshot that killed Bourne. Two seconds later, at 11:24:38 a.m., the other HPD officers fired at the vehicle, during which Sergeant Smith repeatedly yelled “[s]top” and “ceasefire.” In this second round of shots, Joseph was killed.
After his death, Joseph’s father and siblings along with Joseph’s estate sued the City of Henderson, HPD, and several HPD officers, alleging a Fourth Amendment excessive force claim under 42 U.S.C. section 1983; a Fourteenth Amendment substantive due process claim under Section 1983; a failure to train claim pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); and several state law claims. The District Court dismissed Plaintiffs’ federal claims with prejudice (and found that HPD officers would be entitled to qualified immunity on the Fourth and Fourteenth Amendment claims), and dismissed the state law claims without prejudice to reasserting them in state court. Plaintiffs appealed.
Discussion
The Ninth Circuit Court of Appeals observed that “[t]he doctrine of qualified immunity shields officers from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” City of Tahlequah v. Bond, 595 U.S. 9, 12 (2021) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
On the Fourth Amendment excessive force claim, the Court stated that “[e]xcessive force claims require (1) a seizure and (2) excessive force.” Cuevas v. City of Tulare, 107 F.4th 894, 898 (9th Cir. 2024). ). A police officer can seize a person either through a show of authority that in some way restrains the person’s liberty or by using force to apprehend the person. Id. at 899.
The Ninth Circuit concluded that officers do not seize an individual for Fourth Amendment purposes when they employ control tactics or force in an attempt to rescue him from an active hostage situation. Under the circumstances of this case, there was no seizure. The Court noted that the United States Supreme Court has explained that the hallmark of a seizure is “actual submission.” Brendlin v. California, 551 U.S. 249, 254 (2007). “[A] seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement.’” Torres v. Madrid, 592 U.S. 306, 322 (2021) (quoting Brower v. County of Inyo, 489 U.S. 593, 599 (1989)).
The Court reasoned that Joseph was never ‘seized’ because his freedom was constrained by Bourne, not police action. While a reasonable person in Joseph’s position would not have believed himself free to terminate the encounter, this was due to the hostage-taker, Bourne’s, actions, not the HPD officers’ conduct. Joseph’s freedom of movement was constrained not by the HPD officers’ actions outside the Escalade, but by Bourne holding him hostage. Unlike the passenger of a car during a traffic stop, who can submit to police officers by obeying their instructions or otherwise indicating assent to their control, a hostage under a hostage-taker’s active control has no effective way to signal submission to the police.
The Court found that Joseph was also not seized by the HPD officers when they used force to shoot him. While “an officer seizes a person when he uses force to apprehend her,” neither “[a]ccidental force” nor “force intentionally applied for some other purpose” constitutes a seizure. See Torres, 592 U.S. at 309, 317. A “seizure requires the use of force with intent to restrain.” Id. at 317 (emphasis in original). The Court found that such intent was lacking here. Indeed, the officers here were trying to save Joseph’s life. The Court found the two-second window between Bourne’s death and Joseph’s death insufficient to transform the situation from hostage rescue to police seizure.
Moreover, the Ninth Circuit held that even had Plaintiffs plausibly alleged a constitutional violation, the HPD officers would be entitled to qualified immunity because Joseph’s right to be free of excessive force during an active hostage situation was not clearly established at the time of the violation. The Court observed that Plaintiffs did not cite any decision addressing the right to be free of excessive force in a hostage situation, much less establishing that it is possible for police to conduct a seizure in a two-second window between the time a hostage-taker is incapacitated and the time of the hostage’s own death.
Turning to the Fourteenth Amendment substantive due process claim, the Court of Appeals explained that “[o]fficial conduct that ‘shocks the conscience’ in depriving parents of [the Fourteenth Amendment liberty] interest [in the companionship and society of a child] is cognizable as a violation of due process.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). “Where actual deliberation is practical, then an officer’s ‘deliberate indifference’ may suffice to shock the conscience.” Id. (quoting Porter, 546 F.3d at 1137). But where “a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscienceif he acts with a purpose to harm unrelated to legitimate law enforcement objectives.” Id.
The Ninth Circuit determined the rapidly evolving hostage situation required split-second decisions with legitimate law enforcement objectives. The officers were forced to make “a split-second decision” in a rapidly evolving situation, and therefore, the deliberate indifference standard did not apply. The Court found no factual allegation that indicated that the officers had anything but legitimate law enforcement objectives in mind when they fired their guns. Moreover, even if the deliberate indifference standard applied, officers were entitled to qualified immunity because Plaintiffs failed to plausibly allege that Joseph’s father’s Fourteenth Amendment right was clearly established at the time of the alleged violation. The Court concluded there was no Fourteenth Amendment violation here.
The Court of Appeals also held that Plaintiffs’ Monell claim failed in the absence of any plausible allegation of a constitutional violation, and concluded that Plaintiffs failed to plausibly allege any violation of their constitutional rights by the HPD officers or that their rights were clearly established at the time of the alleged violations. Accordingly, the Ninth Circuit Court of Appeals affirmed.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit stated that its conclusion here did not foreclose the possibility that other hostage situations may give rise to Fourteenth Amendment liberty concerns if police conduct manifests the type of “shocking” deliberate indifference that is constitutionally actionable. See Porter, 546 F.3d at 1139 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998)). However, there was no such egregious conduct here and hence there was no Fourteenth Amendment violation.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] Hawatmeh v. City of Henderson, 2025 U.S. App. LEXIS 29328 (9th Cir. Nov. 7, 2025).