Monday, May 15, 2017
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Immunity Protects Deputy From Suit Over Shooting—Court
By KENNETH OFGANG, Staff Writer
A San Diego County sheriff’s deputy who shot and wounded an intoxicated, knife-wielding man in his own home is entitled to qualified immunity from a federal civil rights claim by the man’s family, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The family of David Lee Brown laid out a factual scenario that might support a claim of excessive force, Judge John Owens wrote for the panel. But the state of the law in August 2013, when the shooting occurred, would not have placed a reasonable officer on notice that he was violating Brown’s civil rights, even when the facts are viewed in the light most favorable to the plaintiffs, Owens said.
The court reversed a district judge’s ruling denying the defendants’ summary judgment motion. But the family can still pursue its wrongful death case under California law, the judge noted.
Evidence presented in connection with the summary judgment motion showed that deputies received a radio call on a Saturday afternoon regarding an “emotionally disturbed person” who had consumed a large quantity of medication and alcohol. The man was later identified as Brown, and family members—who had left the house and gone to a nearby fire station—said he was bipolar, schizophrenic, and diabetic.
Deputies Adrian Moses and Luke Vories, along with a third deputy, went to the scene. Moses announced “Sheriff’s Department,” and called out Brown’s name.
After another deputy yelled “knife” in response to seeing Brown with kitchen knives sticking out of his pockets, Moses pointed his gun and ordered Brown to raise his hands. Moses, according to his partner’s testimony, told Brown he would be shot if he went for the knife.
Deputy’s Testimony
Moses testified in his deposition that Brown pointed a knife with a six-to-eight inch blade at Vories. Sensing his partner to be in imminent danger, Moses said he waited less than a second before shooting three to four times.
About five minutes elapsed between the first sighting of Brown’s knife and the shooting, he testified.
Vories said he drew his Taser, and that Brown told him: ”I’ve been Tased before. Just tase me.” He then began screaming and reached for a knife as Moses yelled: “Don’t do it. Don’t do it.”
As Brown raised the knife, Vories said, he heard three to six shots, but could not see Moses across a small wall separating the kitchen and living room. Vories said he did not believe Moses could see him, although Moses testified that he did.
The third deputy, Deputy Billieux, said she had joined Vories in the kitchen in order to help him handcuff the suspect, but that Brown grabbed the knife extremely quickly and that she heard three to six shots. She said that Brown was trying to stab Vories and was close enough to do so, and that either she or Vories would have been stabbed if Moses had not fired.
The San Diego County District Attorney’s Office and the Sheriff’s Department both ruled the shooting justifiable. Brown’s family sued Moses and the county in the U.S. District Court for the Southern District of California, asserting a civil rights claim under 42 U.S.C. §1983 and a wrongful death claim under state law.
In denying the defense motion for summary judgment, District Judge John Houston concluded that there were three disputed issues that might affect the determinations as to whether the shooting was reasonable, and, if not, whether it violated clearly established law—whether Brown was on his knees or attempting to stand when he grabbed the knife, whether Moses could see the other officers clearly when he fired, and how far Brown was from Vories at the time.
The defendants took an interlocutory appeal as a matter of right from the denial of qualified immunity.
Testimonial Discrepancies
Owens agreed with the district judge that a reasonable juror could find a Fourth Amendment violation based on the discrepancies in the deputies’ testimony and other evidence favorable to the plaintiffs. Drawing all reasonable inferences in the plaintiffs’ favor at the summary judgment stage, the trier of fact might conclude that Moses shot Brown as soon as he touched a knife, even though Brown was complying with the officers’ orders to kneel, that Brown had no warning he was about to be shot, and that the shooting could have been avoided had Vories used his Taser, Owens said.
But to reach that conclusion, Owens went on to say, the court must rely on more recent case law, which it cannot do as part of the second prong of the qualified immunity analysis. There was, he said, no Ninth Circuit or U.S. Supreme Court precedent at the time of the shooting “that put Moses on clear notice that using deadly force in these particular circumstances would be excessive.”
He rejected the argument that Glenn v. Washington County (9th Cir.) 2011 was such a case. Although Glenn also involved a mentally ill person shot by police while holding a knife after his family had requested assistance, Owens noted, the suspect there was holding the knife towards himself, not brandishing it at officers.
In a footnote, Owens said the district judge’s denial of summary judgment on the wrongful death claim was not before the court on interlocutory appeal, but that the panel’s finding that the plaintiffs presented sufficient evidence of excessive use of force was consistent with Houston’s ruling on that claim.
The case is S.B. v. County of San Diego, 15-56848.
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