Appeals court refuses to dismiss wrongful death, excessive force claims against Harnett deputies

A federal appeals court ruled Tuesday that several Harnett County deputies cannot be shielded from a lawsuit alleging excessive force in several arrests, including one that left a Spring Lake man dead.

Posted 6:36 p.m. Feb 25, 2020 — Updated 12:14 a.m. Feb 26, 2020

Matthew Burns

, WRAL.com senior producer/politics editor

RICHMOND, VA. — A federal appeals court ruled Tuesday that several Harnett County deputies cannot be shielded from a lawsuit alleging excessive force in several arrests, including one that left a Spring Lake man dead.

The family of John David Livingston and five other people sued four deputies, Sheriff Wayne Coats and former Sheriff Larry Rollins in November 2016. When a federal judge refused to dismiss the case, the defendants appealed his ruling to the 4th U.S. Circuit Court of Appeals.

Former deputy Nicholas Kehaigas fatally shot John David Livingston, 33, on Livingston's front porch on Nov. 15, 2015. Witnesses said Kehaigas barged into the home that night after Livingston told him the person he was looking for didn't live there, and the deputy then yanked him out of a chair, threw him to the ground, repeatedly used a stun gun and pepper spray on him and even put a gun to his head.

Kehaigas, who resigned from the force seven months later, said he was forced to shoot Livingston when Livingston grabbed his stun gun and tried to use it on him. Witnesses said Livington never had control of the stun gun, but a grand jury declined to indict Kehaigas on any criminal charge.

A three-judge panel for the 4th Circuit said Kehaigas and another deputy couldn't appeal the ruling against them on the unlawful arrest and unjustified use of deadly force claims because they weren't raising any constitutional issues in either instance. The judges agreed with the lower court that there was enough evidence that the two deputies violated Livingston's rights before he was shot based on the force used against him.

"Like the district court, we think the mismatch here between provocation and response is great enough to render the officers' actions 'unnecessary, gratuitous, and disproportionate' in violation of the Fourth

Amendment," the judges wrote in the unanimous opinion. "We likewise agree with the district court that it would have been 'clear to a reasonable officer,' at the time and under the circumstances, that the non-deadly force used against Livingston was constitutionally excessive."

The court also upheld the lower court's decision not to dismiss the excessive force claims by Tyrone Bethune against Kehaigas and a third deputy in a May 2015 arrest. As with the Livingston case, Kehaigas was accused of barging into Bethune's home without a warrant and body-slamming him when he was using a cellphone to record Kehaigas handcuffing another man who was at the home.

The judges overturned the lower court decision in a third instance, saying they needed more information to decide whether Kehaigas and two other deputies were justified when they took Michael Cardwell into custody in May 2015.

A 911 dispatcher told deputies that Cardwell was suicidal, and he was agitated when the deputies arrived. Kehaigas tackled him, breaking one of Cardwell's ribs and one of his legs, and he and ther other deputies pepper sprayed Cardwell several times. The 4th Circuit ruled that the deputies might have had probable cause to seize Cardwell for a mental health exam, which would support their stance that they should have immunity from being sued over it.

The whole case now returns to U.S. District Court in Raleigh, but a trial date hasn't been set.

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