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If you examine the police-involved shooting death of David Kerstetter, you have to look closely at one key question: Were the two cops justified in entering Kerstetter’s Logan Circle condo.
With that in mind, I asked a number of experts for their opinions. Before I get to their answers, first some background.
On the morning of November 6, the police got a call for an open door at Kerstetter’s address. Kerstetter’s door appeared to be bashed in. It had also been left ajar.
One of the cops—Master Patrol Officer Frederick Friday—knew some of Kerstetter’s mental-health history. He and his partner had also been filled in by an employee of the condo complex and a concerned neighbor. But when the employee called up to Kerstetter that morning to see if he could come inside, Kerstetter refused.
After more back and forth, Kerstetter again rejected the employee’s plea. He argued that he was the police. Maybe Kerstetter knew the police were standing outside his home. We will never know.
I still wonder if the police had a right to even enter his home.
With that question in mind, I sent the story around to various legal experts and went through it with a police veteran.
Jensen E. Barber II, a noted and experienced defense attorney, responded via e-mail:
“I think the police did have a right to enter. But they should have called hostage/negotiation or rescue or some other entity before the use of deadly force. The police had prior experience w this fellow, however, there was no way they could tell if he was being held hostage, or that he was considering taking his life or if someone was there w him etc. I am sorry this unfolded this way, a seasoned hostage or psych nurse could have made all the difference.”
Doug Wood, an experienced defense attorney, replied via e-mail:
“I cannot think of a good reason why the police had to enter the home. The maintenance man calls them for an open door but when the police and the maintenace man are at the door David Kerstetter simply says he is not coming out. Since there was no report of a serious crime prior to the arrival and upon arrival the police had no information that anyone other than the resident is inside what is the urgency requiring entry?
I can understand that with Kerstetter’s history the police could be concerned for him but there was no exigency that required an immediate entry. Maybe the police were in a rush to conclude the call and quickly say they checked everything out.
I also don’t understand that if the police make entry into the apartment and he has a knife in his hand, why they cannot simply back off and leave and call for some type of mental health person to negotiate with him. If the police precipitously put themselves in a dangerous situation and their presence aggravates the situation, then it is a stretch to say it is self-defense. But I understand that the claim of self-defense is the typical party line.”
Sgt. John Brennan, is a veteran narcotics cop. Washington City Paper has quoted him often in the past on everything from Khat to Rayful Edmond III to catching coke smugglers at Union Station. I went over the Kerstetter case with him on the phone. Here is what he had to say:
“He has a history of mental illness. If they would have left the scene and this guy was hanging himself….they would have been at fault. If I was the official on the scene, I would have gone in. Especially if you know there’s a background of mental illness and suicide….You may need to commit him. When they went in, what was he doing?…
By an officer going in, he did it in good faith. All he’s doing is doing his job. The officers did the right thing, they went in and checked on him….
He could have been held hostage. There could have been several reasons. Of all the reasons, they’re checking on his safety. That would have been my concern above anything. You have to check on that man’s safety.”
Fritz Mulhauser, Staff Attorney at the American Civil Liberties Union of the National Capital Area, replied via e-mail:
“The appropriateness of a warrantless entry will be highly fact-specific. When MPD explains the detailed facts officers knew, the family and the community will be better able to evaluate the lawfulness of the officers’ actions. Until then, one can only speculate.”