Tuesday, April 1, 2014
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Court Revives Suit Over Deadly Shooting by Anaheim Police
En Banc Ruling Says Inconsistencies in Officers’ Testimony Created Triable Issues of Fact
By KENNETH OFGANG, Staff Writer
The Ninth U.S. Circuit Court of Appeals, in an en banc ruling yesterday, reinstated a portion of a lawsuit accusing Anaheim police of unlawful use of deadly force.
In a 7-4 decision, the court said there was enough evidence for the family of Adolf Anthony Sanchez Gonzalez to have a jury decide their claim that there was no need for officers to shoot Gonzalez at the culmination of a 45-minute chase.
The court was unanimous, however, in finding that officers had no ulterior motives, upholding the dismissal of the plaintiffs’ substantive due process claim. The judges also agreed, without dissent, that the officers’ conduct prior to the shooting was reasonable as a matter of law.
The court last October granted en banc rehearing of a 2-1 decision in favor of the city and two officers. That divided panel affirmed an order by U.S. District Judge Percy Anderson of the Central District of California, who granted summary judgment in connection with the 2009 incident.
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 the 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.
Punches to the Face
Wyatt radioed for help, entered from the passenger side, and began punching Gonzalez in the face. He said he did so because he believed that the motorist was attempted to hit 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 he 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.
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. But Judge Richard Clifton dissented.
Clifton yesterday wrote for the en banc majority, which included Judges Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Ronald M. Gould, Marsha S. Berzon, and Morgan Christen.
Trott and Chief Judge Alex Kozinski authored dissents, which were joined by each other and by Judges Richard C. Tallman and Carlos T. Bea.
Inconsistent Testimony
Clifton said the inconsistencies in the officers’ testimony as to the relative speed of the van and whether Gonzalez had indeed floored or “stomped” on the gas to get away were a sufficient reason to allow a jury to determine whether they had a reasonable alternative to shooting the suspect.
“…Wyatt was not on foot next to a vehicle that might run him over at any moment should it have accelerated, and he did not express concern that his partner was vulnerable to being run over. The defendants presented no evidence of anyone else in danger,” Clifton wrote.” Instead, Wyatt was inside a car that might have been slowly rolling forward….Based on the current record, a jury could find that Wyatt did not act reasonably.”
He continued:
“Similarly, a jury could find that Wyatt reasonably perceived a threat, but not one that justified the immediate use of deadly force. The jury may consider the availability of other methods to subdue a suspect. Wyatt had a police baton, pepper spray, and a Taser. He could have used any of them, or he could have shot Gonzalez in a nonlethal area of the body to try to stop him from driving further. Instead, he used his gun and intentionally shot Gonzalez in the head. If the jury found that the car was moving slowly at the time, it could also find that other alternatives could have been used and that the use of deadly force was unreasonable.”
The dissenters argued that the majority was ignoring the realities of the dangers faced by officers in dealing with uncooperative suspects, particularly someone like Gonzalez who is exhibiting aggressive behavior while in control of a vehicle, possibly while armed and/or under the influence of drugs.
“It’s undisputed that, at the time he fired the fatal shot, Officer Wyatt was trapped inside a moving vehicle driven by a man who had resisted the verbal commands, physical restraints, lethal threats and bodily force of two uniformed officers,” Kozinski wrote. “How fast the van was moving and how far it had traveled are beside the point. What matters is that Officer Wyatt was prisoner in a vehicle controlled by someone who had already committed several dangerous felonies. No sane officer in Wyatt’s situation would have acted any differently, and no reasonable jury will hold him liable. The only thing this remand will accomplish is to give plaintiffs a bludgeon with which to extort a hefty settlement.”
Trott argued that the speed of the van was immaterial.
“Who cares how fast the van was going?” he asked rhetorically. “Gonzalez’s representatives admit that Gonzalez unexpectedly tried to flee without warning, and that when Officer Wyatt tried to stop him, Gonzalez physically fought him off. I do not comprehend how this constellation of facts fails to demonstrate a real threat of impending harm to Officer Wyatt, as well as to members of the public.”
The case is Gonzalez v. City of Anaheim, 11-56360.
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