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Unjustified deadly force lawsuit proceeding against Pender Co. deputy

District Attorney conducting review of deputy’s past
Updated: Mar. 22, 2021 at 2:30 PM EDT
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PENDER COUNTY, N.C. (WECT) - It’s a story that made headlines in other parts of the state. But it wasn’t until two years after Nicholas Kehagias was hired as a Pender County Sheriff’s deputy that many in southeastern North Carolina learned of his infamous track record in Harnett County.

That track record, based on allegations regarding Kehagias’ excessive and unreasonable use-of-force and unjustified deadly force as a Harnett County deputy, is now the subject of a lawsuit that continues to advance through federal court.

Kehagias has no disciplinary action on his record since being hired in Pender County in April 2019, and is currently working as a patrol officer. However, Pender County Sheriff Alan Cutler recently requested District Attorney Ben David conduct a review on Kehagias after media outlets started asking him about Kehagias’ prior history. David is gathering material for that review now.

While it’s yet to be determined if Kehagias will be placed on the list, prosecutors often keep Giglio lists containing information on law enforcement officers who have had past issues that place their credibility into question. That’s because it can be difficult for those officers to testify in court, when their past history is questioned on cross-examination.

Federal lawsuit

Six plaintiffs have sued a group of Harnett County Sheriff’s deputies for a series of incidents that happened between January and November of 2015. Deputy Kehagias was a central figure in all but one of the five events that precipitated the lawsuit.

“According to the plaintiffs, their cases were part of a larger pattern in which certain officers ‘brutalized, wrongfully detained, and humiliated’ Hartnett County residents with impunity,” the US Court of Appeals Fourth Circuit wrote in their recent opinion on the case. “The plaintiffs’ specific allegations featured warrantless, unlawful and sometimes forcible or middle-of-the-night home entries; unlawful seizures and arrests, frequently accompanied by unprovoked excessive force; and, in one case, the unjustified use of deadly force.”

The officers being sued attempted to have the lawsuit against them dismissed based on sovereign immunity, claiming they were protected because they were acting within their official capacity. But a district court, and now a federal appeals court, has refused to dismiss the lawsuit, saying “immunity gives government officials breathing room to make reasonable but mistaken judgments,” but only so long as they are operating in the way a reasonable officer would in those circumstances.

Deadly shooting of man in his own home

In the early morning hours of November 15, 2015, Deputy Kehagias shot and killed John Livingston at his home in Harnett County. Kehagias went to Livingston’s home at 3:40 am to serve a misdemeanor arrest warrant on another man — Lonnie Setzer. When Livingston came to the door, witnesses say he truthfully told Deputy Kehagias that Setzer wasn’t there.

“Kehagias remembers it differently, claiming that he asked if anyone else was present, and that Livingston lied when he answered in the negative. In either event, Kehagias did not believe Livingston, and asked to come inside – without a warrant – to look for Setzer. Livingston declined, attempting to close the door, and Kehagias entered anyway, though the details are disputed: Either Kehagias put his foot in the doorway, where it was hit by the door as Livingston closed it; or Kehagias kicked the door open just before it closed,” the Court of Appeals opinion reads.

At that point, Kehagias attempted to arrest Livingston for “assault” stemming from the door hitting his foot. Livingston, in his own living room, refused to give his hands to be handcuffed.

“After a struggle in which Kehagias and another officer repeatedly used a taser, pepper spray, and physical force on Livingston, who in the plaintiff’s telling was offering only passive resistance, Kehagias fired the shots that killed Livingston,” the court record reads. Kehagias claimed that Livingston had gained control of his taser gun and feared it was going to be used against him, prompting his use of deadly force. Witnesses countered Livingston was simply trying to defend himself against another round of electric shock.

Livingston’s estate sued, alleging unlawful entry and arrest, excessive force in making the arrest, and the unjustified use of deadly force, all in violation of the Fourth Amendment. The officers argued the lawsuit should be dismissed because that they were protected under sovereign immunity, but a federal district court rejected that argument. The court determined, based on the information before them, the officers were acting unreasonably throughout their encounter with Livingston, and were therefore not qualified for immunity. The officers appealed, but the appeals court largely agreed with the district court’s findings, allowing the lawsuit to proceed.

The court also noted that Kehagias’ “reliability as a witness repeatedly has been called into question in this case.... 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.”

Wrong address

Tyrone Bethune and Ryan Holloway are also named plaintiffs in the lawsuit. In July 2015, Kehagisa and two other officers allegedly attempted to serve a warrant in the middle of the night at the wrong home. After Bethune answered the door and told officers they had the wrong address, the situation escalated.

“According to Bethune and Holloway, Deputy Kehagias then followed Holloway back inside, falsely claiming that Holloway had given him permission to search the house. After Kehagias admitted that he had no search warrant, Bethune told him to leave. Kehagias responded by pulling Holloway out of the home by his arm, slamming him into the porch railing, and handcuffing him as Bethune began to record the incident on his phone. Kehagias then pulled Bethune outside, pushed him against the side of the house, body-slammed him face-first into the ground, and handcuffed him, as well, chipping Bethune’s tooth during the takedown. During the encounter, neither Bethune nor Holloway offered any physical resistance or attempted to flee,” the court record reads.

Kehagias claims he had probable cause because he smelled marijuana inside the home, which the plaintiffs dispute. Kehagias also claims that he entered because he knew Bethune had an outstanding warrant for his arrest, but Bethune said Kehagias knew nothing about that warrant until after he had arrested him.

Mental health seizure turns violent

In another incident from May 2015, a man who called 911 for help wound up with a broken leg and a broken rib after Deputy Kehagias arrived. Michael Cardwell, a military veteran, had grown agitated by issues he was having with the Department of Veteran’s Affairs when he called 911. Court records indicate he simply asked for someone to talk to and didn’t specifically mention anything about taking his own life, but the dispatcher categorized the call as an attempted suicide.

When Kehagias, along with deputies Michael Brandon Klingman and John Knight arrived, they found Cardwell in his driveway.

“According to Cardwell, when he asked the officers their names, Klingman replied, ‘Donald Duck.’ When Cardwell asked them to turn on the video recording devices in their vehicles, Kehagias responded, ‘We don’t got no video,’” court records read. “[Cardwell] paced and gesticulated while speaking about his frustrations with the Department of Veterans Affairs, and threw a beer can toward the back of his truck and away from the officers. Kehagias tackled Cardwell to the ground and handcuffed him, breaking Cardwell’s leg and rib. The deputies also pepper-sprayed Cardwell multiple times, even after Cardwell had been handcuffed and seated in a chair.”

While the Court of Appeals did express some concerns about the nature of the arrest, they determined the officers did qualify for immunity under the law in the case of Caldwell’s arrest, because the criteria for a mental health arrest are less clearly defined than for a criminal arrest.

The other plaintiffs in the lawsuit against the Harnett County Sheriff’s deputies did not have issues that were considered on appeal before the Fourth Circuit. The lawsuit is proceeding toward a jury trial through federal court, but has been delayed because of the pandemic, and because of the large number of witnesses expected to testify in the case. Attorneys familiar with the case thought it could go to trial in a matter of months, but may also take longer.

Kehagias resigns from Harnett County, hired in Pender County

Kehagias, then 27, resigned from the Harnett County Sheriff’s Office in June 2016, seven months after he fatally shot Livingston. A grand jury declined to indict Kehagias on charges of second-degree murder, and he had been cleared of any wrongdoing by an internal investigation at the sheriff’s office. But mounting public scrutiny over a perceived pattern of excessive force continued to be an issue. The FBI had also launched an investigation into whether Kehagias should be criminally prosecuted for violations of Livingston’s civil rights.

“It is incredibly difficult for me to do this, but I cannot risk putting my fellow law enforcement officers in increased danger due to the environment created by a dishonest media and a baseless lawsuit, combined with the dangerous rhetoric or actions of certain person(s) in the community,” Kehagias wrote in his resignation letter.

Recently, members of the public began reaching out to Wilmington news outlets, upset that Kehagias still had a badge and had been hired as a deputy at the Pender County Sheriff’s Office (PCSO). Sheriff Alan Cutler is aware of the concerns about Kehagias and is looking into them, but also defended the decision to hire him.

“Yes, we were aware of a lawsuit from 2016 [when we hired Kehagias],” Cutler said in a written statement. “A background investigation was completed, Deputy Kehagias is in good standing with the North Carolina Sheriff’s Standards and certified to be a deputy of law enforcement officer in North Carolina. These are allegations in a lawsuit. Not all allegations are accurate.”

Deputy Kehagias also responded, through his attorney, Dan Hartzog, to concerns about his continued employment as a law enforcement officer.

“The civil lawsuit against Deputy Kehagias and others is still ongoing, and Deputy Kehagias has not had the opportunity to publicly present his side of the story to the jury. He looks forward to his opportunity to do so,” Hartzog said.

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