DOES THE ACCIDENTAL SHOOTING OF A HOSTAGE VIOLATE THE CONSTITUTION?

On November 7, 2025, the Ninth Circuit Court of Appeals decided Hawatmeh v. City of Henderson,[i] in which the court of appeals examined whether officers violated the Fourth or Fourteenth Amendments when they accidentally shot and killed a 12-year-old hostage.

In Hawatmeh, Dianne Hawatmeh and her daughter, Yasmeen, were returning to their apartment when they were confronted by a neighbor, Jason Bourne, over a noise complaint that had been lodged against him.   Moments later, Bourne ran toward Dianne and her daughter and forced his way into their apartment.  Bourne shot Dianne and a housekeeper to death and shot and seriously wounded Yasmeen.  Bourne demanded that Joseph, Dianne’s 12-year-old son, give him the keys to the family’s Cadillac Escalade.  Bourne shot Yasmeen several more times.

Joseph called 911 and told the operator his apartment location and that there was someone in the apartment with a gun.  While he was on the phone, Bourne fired his gun twice and told Joseph that he had 10 seconds to find the keys.  Meanwhile a second housekeeper and a neighbor also called 911.

Joseph located the keys, and Bourne took him outside and they entered the Escalade.  Bourne called 911 and told the dispatcher that he wanted a helicopter.  While on the phone, Joseph told the dispatcher that Bourne had a gun.  Bourne admitted to killing someone at the apartment.  Joseph was heard while on the phone with 911 begging Bourne not to kill him.  Bourne also told the dispatcher he would shoot Joseph.  This call lasted about seventeen minutes.

Meanwhile, City of Henderson police officers were responding to the scene.  At this point, the facts, taken directly from the case, are as follows:

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 vehicle 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. Having received information that a suspect was inside a vehicle threatening to kill a 12-year-old child, Special Weapons and Tactics (SWAT) personnel were activated and began traveling to the address. 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 muted and unmuted the phone again. He told Joseph, “I have to shoot you . . . .” Bourne and Joseph continued speaking:

Bourne: Okay. I need you to open your mouth.

Joseph: No, sir.

Bourne: Is this gun loaded?

Joseph: Yeah.

Bourne: Do you think it is or should we test it out?

Joseph: No. We shouldn’t test it out.

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.” It was this second round of shots that killed Joseph.[ii]

The Plaintiffs filed suit in federal district court and alleged that the officers violated Joseph’s rights under the Fourth and Fourteenth Amendments and that the city failed to train the officers.  The officers filed motions for qualified immunity which the district court granted.  The district court also granted summary judgment for the city, as the Plaintiff’s failed prove an underlying constitutional violation.

The Plaintiffs appealed the district court’s decision to the Ninth Circuit Court of Appeals.

The court of appeals first discussed qualified immunity.  To overcome an officer’s motion for qualified immunity, a plaintiff must satisfy a two-pronged test.  First, the plaintiff must show that the officer violated the plaintiff’s constitutional rights.  Second, the plaintiff must show that the law was clearly established at the time of the violation such that every reasonable officer would have known he was violating the plaintiff’s rights.  The law is “clearly established” when there is prior court precedent with similar enough facts to provide a reasonable officer notice that the conduct violates the constitution.

The Fourth Amendment Excessive Force Claim

The Plaintiffs first alleged that the officers violated Joseph’s right to be free from unreasonable force under the Fourth Amendment, arguing that shooting Joseph was excessive force.

The court of appeals stated

Excessive 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.[iii]

Plaintiffs argued that Joseph was seized when police surrounded and blocked the vehicle and ordered Bourne and Joseph to show their hands, and when the officers shot Joseph.

The court of appeals then discussed what is needed for an officer-citizen contact to be considered a seizure under the Fourth Amendment.  The court stated

The 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,” and requires that “’a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.’” Torres v. Madrid, 592 U.S. 306, 322 (2021) (quoting Brower v. County of Inyo, 489 U.S. 593, 599 (1989)).[iv]

For Plaintiff’s argument regarding being surrounded or blocked by police, they attempted to draw an analogy between the contact with Bourne and Joseph and a passenger in a car that is stopped for a traffic violation.  The Plaintiffs reasoned that a reasonable person in Joseph’s position would not have felt free to leave.  The court of appeals rejected the Plaintiff’s argument because, here, Joseph would not have felt free to leave because of the actions of Bourne, rather than the police.  Further, being under the hostage-taker’s control, Joseph was unable to submit to the police.  Therefore, the court of appeals rejected the Plaintiff’s argument and stated that Joseph’s freedom of movement was restrained by Bourne rather than the police.

The Plaintiff also argued that the police seized Joseph when they used deadly force and accidentally shot him.

The court of appeals noted the legal principles from the Supreme Court that address this issue.  The court stated

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. Id. at 309, 317. A “seizure requires the use of force with intent to restrain.” Id. at 317 (emphasis in original). That intent was lacking here.[v]

The Plaintiff sought to overcome this by arguing that the officers intentionally shot the Escalade knowing that Joseph was inside.  The Plaintiff cited the Ninth Circuit case, Villanueva v. California,[vi] in which the court held that a person was seized when police shot at a vehicle to stop its movement and struck a passenger.  The court stated that the passenger was seized by restraint of his movement whether or not the police intended to hit the passenger or whether or not the police even knew the passenger was in the vehicle.  However, the court of appeals noted, in that decision, they

[D]istinguished several out-of-circuit decisions that “address the very different situation where the passenger was also a hostage and the officers were trying to rescue the passenger, not arrest him.” Id. at 1167.[vii]

Thus, in Villanueva, the Ninth Circuit stated that its decision in that case would not apply to situations where a passenger in a vehicle was a hostage and police were trying to rescue the passenger, rather than arrest or restrain him.  The court stated that in Joseph’s case, the police were trying to rescue him, not restrain him.

The Plaintiff argued that the officers that hit Joseph fired two seconds after Bourne had already been shot and incapacitated by a different officer.  Regarding this argument, the court stated

[W]e do conclude that, as a matter of law, a two-second window is insufficient to transform a situation from one initiated and controlled by a hostage-taker to one initiated and controlled by police.[viii]

Thus, the volley of shots that hit Joseph was so close in time to the shot that incapacitated Bourne that the court held the situation was not yet controlled by the police.

Lastly, the court of appeals noted that the Plaintiff cited no court precedent that would put an officer on notice that their conduct violated the constitution.

Therefore, the court of appeals affirmed the grant of qualified immunity for the officers on the Fourth Amendment claim.

Fourteenth Amendment Due Process Claim

The Plaintiff alleged that the officers violated his Fourteenth Amendment rights in depriving him of the companionship of his son.

The court examined the relevant legal principles regarding this issue and noted

We have recognized that “[o]fficial conduct that ‘shocks the conscience’ in depriving parents of [this Fourteenth Amendment liberty] interest is cognizable as a violation of due process.” Id. (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 conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.” Id.[ix]

The Plaintiff argued that the deliberate indifference standard should apply here rather than the “shocks the conscience” standard because the officers had enough time to deliberate prior to the shooting.  However, the court of appeals disagreed and noted that the facts of the incident show the situation “was in constant flux.”  The officers were told that Bourne had threatened to kill 12-year-old Joseph.  The officers were told that Bourne told Joseph to “open your mouth.”  The court stated

That the officers shot Bourne and Joseph less than a minute after hearing that Bourne told Joseph to “open your mouth” underscores that they were forced to make “a split-second decision” in a rapidly evolving situation.[x]

Thus, the officers did not have time to deliberate.

Additionally, the court noted that there were no factual allegations that indicated that the officers “had anything but legitimate law enforcement objectives in mind when they fired their guns.”[xi]  Further, the Plaintiff did not argue that the officers had an intent to cause Joseph harm.  Thus, the Plaintiff failed to establish a constitutional violation.

The court did note that they are not stating that the shooting of a hostage can never meet the “shock the conscience” standard, rather they are holding that the Plaintiff failed to meet that standard in this case.

Further, the court also noted that the Plaintiff failed to cite court precedent that would put a reasonable officer on notice that the accidental shooting of a hostage under facts similar to this case would violate the Fourteenth Amendment.

Therefore, the court affirmed the grant of qualified immunity for the officers on the Fourteenth Amendment claim.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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[i]No. 24-6146 (9th Cir. November 7, 2025)

[ii] Id. at 8-10

[iii] Id. at 12 (emphasis added)

[iv] Id. at 13 (emphasis added)

[v] Id. at 16 (emphasis added)

[vi] 986 F.3d 1158, 1168 (9th Cir. 2021)

[vii] Id. at 16-17

[viii] Id. at 17 (emphasis added)

[ix] Id. at 19-20 (emphasis added)

[x] Id. at 20

[xi] Id.