Metropolitan News-Enterprise


Tuesday, October 29, 2013


Page 1


Ninth Circuit Votes to Take Police Shooting Case En Banc


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday granted en banc review in order to determine whether Anaheim police used reasonable force during a struggle in which a man suspecting of possessing drugs was shot in the head.

Chief Judge Alex Kozinski, in a brief order, said a majority of the court’s unrecused active judges had voted in favor of en banc rehearing in Gonzalez v. City of Anaheim, 11-56360.

Earlier this year, 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. Gonzalez 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.

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, O’Scannlain explained, holds that 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.”


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