Thursday, November 2, 2017
Ninth Circuit Reinstates Action Based on Police Shooting
Judge Kozinski Says Deputy Sheriff Had to Disable Man Who Had Stabbed Another Deputy But ‘Terminating a Threat Doesn’t Necessarily Mean Terminating the Suspect’
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals yesterday reinstated a civil rights action against Orange County based on the fatal shooting of a man by a sheriff’s deputy who was declared justified in his actions by the Orange County District Attorney’s Office and given his department’s Medal of Valor for saving another deputy’s life, but who, the court said, might be found by a jury to have been blameworthy.
Police videotapes of the incident might soon be broadcast on television news programs and be available on YouTube; the opinion provides: “The videos—Exhibits A and B—shall be unsealed.”
Connor Zion, fatally shot by a sheriff’s deputy in 2013, is seen with ballroom dance partner, Brittany Cherry, five years earlier. Zion, who taught ballroom dancing, was shot to disable him after he stabbed a sheriff’s deputy. Ninth Circuit Court of Appeal Judge Alex Kozinski said yesterday that a jury could find that force continued to be exerted against him after he ceased to be a threat.
The opinion reverses summary judgment granted by U.S. District Judge James Selna of the Central District of California in favor of the county and the deputy whose conduct is in issue, Michael Higgins.
Responding to a call on Sept. 24, 2013, reporting that Connor Zion, 21, was wielding a knife, Higgins was the second deputy to arrive at the scene, outside an apartment complex—and found the first deputy to arrive, Juan Lopez, on the ground with Zion holding a knife above his head.
As captured by the cameras on the two deputies’ cars: as Zion fled, Higgins fired nine shots at him, from about 15 feet, felling him; the deputy came to where Lopez was, firing nine more shots from about four feet; Zion was still moving, and Higgins kicked Zion’s head three times, rendering him unconscious.
High Court Precedent
The county, in defending against the mother’s action under 42 U.S.C. §1983, as well as a state action for unreasonable use of force, pointed to the United States Supreme Court’s 2014 decision in Plumhoff v. Richard. There, it was held that “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
Writing for the Ninth Circuit in ordering reinstatement of most of the causes of action put forth by the decedent’s mother, Justice Alex Kozinski said that “terminating a threat doesn’t necessarily mean terminating the suspect.”
“If the suspect is on the ground and appears wounded, he may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting….This is particularly true when the suspect wields a knife rather than a firearm. In our case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack.”
If unreasonable force was used, the jurist said, a Fourth Amendment violation occurred. He added:
“If a jury were to find that Higgins shot and/or stomped on Zion’s head after Zion no longer posed an immediate threat, Higgins would have been ‘on notice that his conduct would be clearly unlawful.’….Defendants therefore aren’t entitled to qualified immunity.”
The kicks in the head, Kozinski said, might be found to have been violative of the Fourteenth Amendment. He wrote:
“A jury could reasonably find that Higgins knew or easily could have determined that he had already rendered Zion harmless. If so, a reasonable jury could also conclude that Higgins was acting out of anger or emotion rather than any legitimate law enforcement purpose.”
Selna’s view was that Zion was “continuing to move even after Higgins has depleted his ammunition” and had to respond to a situation which he described as that of “a fellow officer grievously wounded and in need of immediate medical attention, a primary firearm no longer loaded, and an armed and dangerous suspect who might have been capable of causing further harm.”
Zion, a professional ballroom dancer who gave lessons, suffered from a seizure disorder. Prior to deputies arriving on the day of the shooting, his roommate and his mother had suffered cuts in attempting to wrest the knife from him.
The mother, with her hand bleeding, went to a neighbor’s condominium. It was the neighbor who placed a “911” call.
Higgins used a passerby’s dog leash as a tourniquet and is credited with saving Lopez’s life.
The case is Zion v. County of Orange, No. 15-56705.
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