Henderson officials have responded to a lawsuit against the Police Department that alleges officers punched, kicked and jolted a sporting goods store manager with a stun gun, mistaking him for a shoplifting suspect.
Retired Nevada Department of Wildlife game warden James Herndon, who now works at Sportsman’s Warehouse, filed a federal civil rights complaint earlier this month against the department, five officers and a sergeant.
“The City of Henderson is aware of this incident and is confident that the Henderson Police officers acted appropriately in apprehending an armed criminal suspect who was running through a store occupied by customers and employees,” a spokeswoman for the city wrote in an email to the Las Vegas Review-Journal on Thursday. “It is unfortunate that Mr. Herndon inserted himself into this extremely dangerous situation by attempting to join in the capture of the armed suspect. Mr. Herndon’s actions added confusion to an already volatile situation and unnecessarily endangered officers, members of the public and himself.”
While being pummeled with fists, boots and the butt of a rifle on Jan. 14, 2018, Herndon, 55, tried to tell police he was not the suspect, according to his lawsuit.
“Something smacked me in the head, and I saw a bright white light. It just knocked me silly,” Herndon recalled in an interview with the newspaper. He said he was hit in the face. “Then I started screaming, ‘The bad guy’s on the bottom. The bad guy’s on the bottom.’”
Herndon suffered a bloody nose, bruised face and body, fractured orbital bones, a concussion, blurry vision, difficulty focusing on distant objects, unusual sensation in the teeth and palate, possible nerve damage, headaches and cognitive difficulty, according to court papers. He said he still suffers from daily headaches, light sensitivity and permanent nerve damage.
The shoplifter was identified in police reports as Justin Franks, a 30-year-old convicted felon who had been seen on a closed-circuit surveillance video carrying a handgun and trying to steal ammunition.
Those reports also detail accounts from each of the officers and the sergeant who responded to the shoplifting call.
Sgt. Michael Gillis described entering the store while Franks was trying to flee. Clothing and other merchandise was flung throughout the aisles until Franks bumped into a mannequin, according to the reports. Gillis wrote that he heard the words “Drop the gun!” and “He’s got a gun!” He said he feared for those inside the store, along with his fellow officers.
“All this was happening in a matter of seconds,” Gillis wrote. “It was intense and rapidly evolving from the initial witness call to attempt contact with the suspect and now a fight for life and survival with a male and two handguns.”
Then he grabbed his M4 rifle, assured that the safety had been turned on, and slammed it into the back of Herndon’s head and upper rear torso, Gillis’ report stated.
Herndon “flinched but never gave up his grasp with his arms under his body,” so Gillis jammed his knee into the employee’s torso. Gillis pulled out his stun gun and jammed it into Herndon’s torso, before Herndon shouted, “I’m with you guys” and rolled onto his back.
“It was at this moment that, for the first time, I noticed that there was a second white male underneath the first,” Gillis wrote. “This was confusing and the first male, whom I had struck, shouted that he was the store manager.”
Gillis’ report also referenced an incident a month earlier when another employee grabbed a shoplifting suspect and helped officers take him into custody.
“This appears to be a habitual problem with Sportsman’s Warehouse employees interfering with HPD tactics and putting themselves in harm’s way,” Gillis wrote.
Franks had been spotted by the Marks Street store’s loss prevention manager trying to steal several boxes of ammunition as a wallet and handgun fell out of his waistband.
Herndon said he greeted two officers as they entered the store before he walked toward the front of the building.
As Franks ran, he fell and wound up “not far from me, but at that point I didn’t see any police behind me,” Herndon said, knowing at the time that the suspect was armed. “So I made the decision that I wasn’t going to let him get up.”
Officers Luke Good, Daniel Russo, Alex Nelson, Daniel Nerbonne and Eduardo Vega arrived ahead of Gillis. In their reports, they justified their use of force by referencing that the shoplifting suspect had been seen with a weapon and had run from police.
Nelson struck Herndon with fists before Vega ran up and kicked Herndon in the head and rammed a knee into his back.
“I determined I needed to take immediate actions to get the suspect into custody,” Russo wrote of his encounter with Herndon, which occurred before the sergeant used his stun gun. “Therefore I used overwhelming force by delivering two closed fist strikes to the front of the suspect’s head which appeared to be effective.”