Tuesday, May 14, 2013
Court Upholds Dismissal of Suit Over Fatal Police Shooting
By KENNETH OFGANG, Staff Writer
Anaheim police used reasonable force during a struggle in which a man suspecting of possessing drugs was shot in the head, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel affirmed an order by U.S. District Judge Percy Anderson of the Central District of California, who granted summary judgment to the city and two officers in a suit by the family of Adolf Anthony Sanchez Gonzalez, who was killed by an Anaheim police officer in 2009.
Officers Daron Wyatt and Matthew Ellis said Gonzalez cut them off while they were turning left to respond to a call regarding a transient at 2 a.m. A minute or two later, unable to locate the transient, they returned to where Gonzalez had cut them off and saw his van at a gas station.
They ran Gonzalez’s license plate number, learned his van had been involved in a previous narcotics stop and decided to follow him. The officers said they pulled the van over because it was weaving within its lane, and that they struggled with Gonzalez as he tried to get rid of what appeared to be a controlled substance by ingesting it.
Officer Punches Suspect
Wyatt radioed for help, entered from the passenger side, and began punching Gonzalez in the face. He said he believed that the motorist was attempted to strike Ellis, although Ellis testified Gonzalez did not hit him. Gonzalez put the van in drive and accelerated with Wyatt still in the passenger seat, traveling at a speed that the officers estimated to be about 50 mph.
Wyatt shot Gonzalez in the head after Gonzalez allegedly refused his command to stop. The van hit a parked vehicle before coming to a stop.
Gonzalez’s family sued the city and the officers for violation of the decedent’s Fourth Amendment right to be free from excessive force and for violation of their own substantive due process right to familial association. But Judge Diarmuid F. O’Scannlain, joined by Senior Judge Stephen S. Trott, said the amount of force used was reasonable as a matter of law.
U.S. Supreme Court precedent, the judge explained, if the police have reason to believe that someone has committed a crime, they have the right to use reasonable force to arrest the person. The reasonableness of the force will be determined by the severity of the suspected crime, the immediacy of any threat posed by the suspect to the officers’ safety, and whether the suspect is resisting or attempting to flee.
“Not only was Gonzalez acting strangely, but the officers had reason to believe he was committing and then attempting to conceal a drug offense,” O’Scannlain wrote. “He continually ignored the officers’ commands and resisted their attempts to physically restrain him. And when he attempted to drive away with an officer in the passenger seat, he made a volatile situation all the more dangerous.”
The judge also rejected the family’s due process argument, saying there was no evidence the officers had a preconceived plan to harm Gonzalez or that they unnecessarily increased the volatility of the situation themselves.
Judge Richard R. Clifton, in a dissent, said the officers’ version of what happened “appears to me to be physically impossible” and was “not internally consistent.” He said the officers’ statements suggested the van may not have been traveling at a high speed.
“It is for the jury to weigh the evidence, not us,” Clifton wrote. “If Wyatt was sitting in the passenger seat of a vehicle going 3 to 4 miles per hour when he whipped out his gun and, without warning, shot Gonzalez dead, a reasonable jury might conclude that his actions were unreasonable.”
O’Scannlain responded that even if the vehicle was moving slowly, Wyatt had cause to fear sudden acceleration, and that the discrepancy between the officers’ testimony that the vehicle was traveling about 50 mph and that it traveled 50 feet in 10 seconds—or about 3.4 miles per hour—did not render the testimony so unbelievably self-serving as to create a triable issue.
The testimony about speed and distance were no more than “rough estimates,” O’Scannlain said, and did not create a “glaring inconsistency” as argued by Clifton.
The appeal was argued by Melanie T. Partow of the Law Offices of Dale K. Galipo for the plaintiffs and Anaheim Assistant City Attorney Moses W. Johnson IV for the defendants.
The case is Gonzalez v. City of Anaheim, 11-56360.
Copyright 2013, Metropolitan News Company