OMAHA, Neb. (AP) - A federal appeals panel on Thursday upheld the dismissal of a lawsuit against Nebraska and various state officials that had faulted them for releasing a prisoner who killed an Omaha woman and three others shortly after he got out. But one judge left the door open for the woman’s husband to try again - an invitation his attorney said he’ll accept.
The three-judge panel of the 8th U.S. Circuit Court of Appeals backed a district court’s dismissal last year of the lawsuit brought by the husband of 33-year-old Andrea Kruger. The appeals panel agreed that the state and its officials are immune from liability because the release of Nikko Jenkins was discretionary and protected by law.
Kruger was pulled from her car on Aug. 21, 2013, in northwest Omaha and shot four times by Jenkins. In the days before that, Jenkins killed three other people in two separate attacks. He had been released from prison on July 30, 2013, after serving nearly 11 years for various crimes.
Jenkins pleaded no contest in 2014 and was convicted of four counts of first-degree murder. His sentencing has been delayed because of concerns about his competency.
The lawsuit by Michael-Ryan Kruger said state prison officials “showed no common sense” in releasing Jenkins and thus placed his wife at “great risk of harm” because the state knew Jenkins intended to kill people at random after his release.
A state ombudsman’s report had faulted the prisons department, saying officials failed to get Jenkins the mental health treatment he needed and kept him in an isolation cell for most of the last two years of his sentence because of behavior problems. Jenkins had begged corrections officials to commit him to a mental health institution and told prison officials he would kill people if released.
In Thursday’s opinion, Judge Jane Kelly agreed with the two other judges in affirming the dismissal of the appeal, but said she would “accept an invitation to revisit” Kruger’s state-created danger argument.
That doctrine argues that a tragedy could have been prevented if the government and its officials had intervened. To succeed under current precedent, plaintiffs must show that government officials were aware of a specific, named victim or place to be targeted, Kelly said.
“I harbor some doubt as to the logic of our state-created-danger theory as it currently stands in the face of highly unusual circumstances such as are presented by this case,” she wrote.
Kruger’s attorney, Vince Powers of Lincoln, said Thursday he will ask the full 8th Circuit to hear the appeal, focused on the state-created danger argument.
The Nebraska Attorney General’s Office, which has defended the state against the lawsuit, did not immediately respond to a message Thursday.
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