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A Texas border town has been hit with a $35.5 million jury verdict over charges that the city’s police department created a dangerous situation by failing to properly oversee an assault rifle that was turned into the department for destruction and subsequently used in multiple murders. The award goes to a sheriff’s deputy who was wounded and to the families of two federal Border Patrol agents who were killed by a gunman using the rifle. The AR-15 assault rifle had been brought to the Harlingen, Texas, police station in 1995, by a woman whose home had been burglarized twice, said plaintiffs’ attorney Broadus Spivey of Austin’s Spivey & Ainsworth. The woman, who testified, said she was worried her home would be robbed again and that the gun would be stolen and used in a crime. The rifle was not destroyed, however. Instead, Harlingen police officer R. D. Moore brought the rifle home and put it in his gun safe. Moore’s son, Ernest Moore, had a key to this safe and was allowed to use the rifle, Spivey said. On July 7, 1998, Ernest Moore, then 25, brought another assault rifle to the Rio Hondo, Texas, home of a man who was dating his ex-girlfriend. Moore shot and killed the mother and sister of the new boyfriend, Danny Morin; wounded Morin; then, as police were in pursuit, returned to his home. At this point, Spivey continued, “Moore takes the AR-15 from the safe and hides out in a cornfield near his house.” Texas Rangers, county deputies and federal Border Patrol agents gathered at the Moore house. When the two Border Patrol agents, Susan Rodriguez and Ricardo Salinas, came into the house, Spivey said, “The father stops them and says, ‘You can’t come in. He’s not an illegal alien.’ As they leave the house, the boy blasts them and kills them both.” A shootout with the police ensued, and Moore shot Cameron County deputy Raul Rodriguez before being killed. The families of the dead Border Patrol agents and Rodriguez filed a � 1983 civil rights action against the city. The plaintiffs contended that the city’s handling of the AR-15 rifle and its failure to have written procedures to handle such weapons constituted “a police-created danger,” said Spivey. Salinas v. City of Harlingen, No. B-98-162 (S.D. Texas). Ernest Moore should never have had any access to this gun, he added. In addition to a cocaine habit, he alleged, the son had a history of emotional problems and maintained a display of Nazi posters and Hitler photos in his bedroom. Following the shooting, he alleged, the Harlingen Police Department engaged in a cover-up over how the rifle wound up in the Moore home. “The chief of police said the rifle had been issued to Moore because Moore was a member of the SWAT team.” According to Spivey, a reporter on the scene then said to the chief, Jim Schoepner, “that we have in our records that you disbanded the SWAT team five years ago. Then the chief said that Moore was issued the rifle because he was [the department's] designated sharpshooter.” Several police officers subsequently issued public statements disputing this. The plaintiffs concentrated much of the case on the city’s lack of procedures on handling weapons. To this end, the plaintiffs called police conduct and standards expert George Kirkham of Lakeworth, Fla., who testified on the national rules which require that weapons be locked up and barred from any access by unauthorized persons. “Kirkham said the city violated every rule,” Spivey said. The plaintiffs’ case was aided, Spivey said, by a decision in July 2001 by the 5th U.S. Circuit Court of Appeals, which upheld the theory that a police-created danger was a civil rights violation. McClendon v. City of Columbia, 258 F.3rd 432. Prior to McClendon, Spivey said, eight other cases purporting this theory had been reversed. The city contended that its policies and Moore’s access to this particular gun were not contributing factors in the police shootings because Moore could have used another rifle, particularly since he had used another gun to commit the initial murders. The city’s attorney, Tom Lockhart of Harlingen’s Adams & Graham, declined comment. The city is expected to appeal.

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