Wednesday, July 7, 2010
Ninth Circuit Rules for Officer Who Shot Driver of Stolen Van
Fear for Colleague’s Safety Justified Deadly Force, Divided Panel Says
By KENNETH OFGANG, Staff Writer
A police officer who fired 11 shots at a stolen minivan, killing the driver, after the vehicle appeared to hit another officer as the two approached it on foot at the end of a chase, acted with reasonable force as a matter of law, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Reversing a contrary determination by U.S. District Judge Benjamin H. Settle, the court ruled, 2-1, that Vancouver, Wash. Officer Rick Torres is entitled to summary judgment on the ground of qualified immunity.
In support of his motion, Torres presented evidence regarding the 2005 chase, which was initiated by Officer John Key after he checked the minivan’s plate on his in-car computer. Key said he ran the plate because the vehicle was parked near a known drug house, and that when he was told the car was stolen, he yelled at the driver, who took off.
Pursuit Immobilization Technique
Torres said he joined the chase after hearing Kay on the radio, activated his siren, and—after the vehicle entered a “T” intersection—executed a Pursuit Immobilization Technique, or PIT, maneuver in which he bumped the rear quarter panel of the minivan with the front quarter panel of his own vehicle, causing the minivan to spin.
The driver, later identified as Jason Scott Wilkinson, continued on, however, and Torres executed a second PIT maneuver. This one caused the minivan to enter a yard on the northwest corner of the intersection.
Wilkinson regained control of the vehicle, according to testimony, but, after a deputy sheriff arrived and positioned his vehicle to block the minivan from escaping, the minivan swerved, hitting a telephone pole.
It was at that point that Key and Torres got out of their patrol cars and approached the minivan, with Key trying to open the driver-side front door, but either slipping on the grass or being knocked over.
Torres said he thought Key had been run over, and with the minivan backing up and spewing mud, he began shooting through the passenger-side window. Radio logs showed that nine seconds elapsed between the second PIT maneuver and Torres calling in that shots had been fired.
Wilkinson’s family sued under 42 U.S.C. Sec. 1983, claiming that the officer used excessive force, in violation of the Fourth Amendment, and denied the plaintiffs their Fourteenth Amendment rights to familial association. The officer exercised his right to an immediate appeal following denial of qualified immunity.
Senior Judge A. Wallace Tashima, writing for the Ninth Circuit, said there was no violation of a constitutional right.
“Even construing the facts in the light most favorable to Plaintiffs, a reasonable officer in Torres’ position had probable cause to believe that Wilkinson posed an immediate threat to the safety of Key and himself,” Tashima wrote.
The judge emphasized that Wilkinson continued to accelerate the vehicle in spite of sirens and direct commands by police, and that Torres had reason to believe that Key had been run over and was in danger of being run over again.
‘Rapidly Evolving’ Situation
“The situation had quickly turned from one involving a crashed vehicle to one in which the driver of a moving vehicle, ignoring police commands, attempted to accelerate within close quarters of two officers on foot,” he wrote. “In this ‘tense, uncertain, and rapidly evolving’ situation, a reasonable officer had probable cause to believe that the threat to safety justified the use of deadly force.”
He rejected the argument that there was a triable claim that that the officer paused after firing about eight shots, and should have realized that there was no need to fire the final three shots.
“Torres testified that he wondered if he had missed Wilkinson, because Wilkinson did not appear to react after the first volley. The entire time that elapsed between the time of the PIT maneuver and the radio call after the last shot was fired was nine seconds. The shots themselves happened so fast that [Anthony] Davis [the lone non-police eyewitness] does not appear to have distinguished the two volleys. Torres stopped firing after he perceived that Wilkinson had gone limp and the van had straightened out. As the Fourth Circuit noted in Elliott [v. Leavitt, 99 F.3d 640], ‘the Fourth Amendment does not require omniscience,’ and absolute certainty of harm need not precede an act of self-protection.”
Judge Richard Tallman concurred, but Senior District Judge Consuelo Marshall of the Central District of California, sitting by designation, dissented.
Marshall argued that there were material facts in dispute and the court was usurping the function of a jury.
Based on the eyewitness’s statements, both in his affidavit and to police, Marshall reasoned, the van may never have hit Key, who may have slipped on the wet grass. And as many as two seconds may have elapsed between the first and second volleys, she said.
“Two seconds is sufficient time from which a jury could find that a reasonable officer on the scene could have glanced over at the vehicle, seen that Wilkinson had been shot and that his hands were no longer on the wheel, and forgone the use of deadly force,” Marshall argued. “Thus, based on the record before it, the district court was correct in holding that there were material issues of fact with respect to whether the second round of deadly shots was reasonable.”
Tashima responded in a footnote, saying the alleged two-second interval was inconsistent with the evidence.
“Torres testified that the second volley immediately followed the first, and Davis himself did not distinguish one volley from another,” he wrote. “Although the radio log shows a two-second interval between a call of ‘shots fired’ and ‘shots code 3,’ there is no evidence that these two log entries represent the two volleys of shots. To the contrary, a review of the audio log suggests that at least one ‘shots code 3’ call was made by a speaker other than Key.”
The case is Wilkinson v. Torres, 09-35098.
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