Metropolitan News-Enterprise


Monday, June 18, 2018


Page 1


Ninth Circuit:

Jury Must Decide Whether Fatal Police Shooting Justified

Circuit Judge N. Randy Smith Dissents, Saying Qualified Immunity Was Established


By a MetNews Staff Writer


A three-judge panel of the Ninth U.S. Circuit Court of Appeals, over a dissent that provides additional facts, has reversed a summary judgment in favor of a California Highway Patrol officer who fatally shot a fleeing suspect.

The action was brought by the Estate of Cecil Ray Elklns Jr., who was killed Nov. 13, 2012 by CHP Officer Hipolito Pelayo. He was being chased on foot by officers and had just vaulted a fence when, according to testimony, he reached into his waistband, with Pelayo shooting on the assumption he was about to pull out a firearm.

Elkins—nicknamed “”Tiger”—was 32. The events took place in the town of Pixley, in Tulare County.

District Court Decision

Senior District Judge Anthony W. Ishii found in Pelayo’s favor on July 6, 2016, holding:

“The evidence demonstrates that Elkins was wanted for a severe felony, he was actively evading arrest by ‘headlong flight,’ he posed a danger to the officers and the public, he was significantly more culpable than Pelayo, and no other reasonable alternatives have been identified. This was a rapidly developing situation that required split second decision-making. Therefore, Pelayo’s use of deadly force against Elkins was reasonable under the totality of circumstances and did not violate the Fourth Amendment.”

This, Ishii said, obviated any need to consider qualified immunity but, nonetheless, declared that under the circumstances of Elkins’s violent conduct over the preceding days, “a reasonable officer could have reasonably, but mistakenly, believed that using deadly force would not violate Elkins’s Fourth Amendment rights.”

Memorandum Opinion

Reversing, a memorandum opinion—signed by Circuit Judge Susan Graber and District Judge Michael H. Simon of the District of Oregon, sitting by designation—said Thursday:

“After concluding that Elkins was reaching for his waistband just before Officer Pelayo opened fire, the district court granted summary judgment in favor of the officer under the doctrine of qualified immunity. Elkins was unarmed at the time he was killed, he had no history of carrying firearms, no one had told the police that Elkins was armed or had a history of using a gun, no officer at the scene saw Elkins with a gun, no officer warned Elkins that he would be shot if he failed to stop, and Elkins was running away from the police to avoid apprehension. Because we conclude that a reasonable jury could find it more likely than not that Elkins was not reaching for his waistband just before he was shot, we reverse and remand.”

The opinion adds that even if it were determined that Elkins was reaching into his waistband, a reasonable jury could find that shooting him constituted excessive force.

It observes that cases involving police shootings of unarmed suspects are seldom subject to resolution on summary judgment and the action against Pelayo “does not present an exception to this general rule.”

Smith’s Dissent

Circuit Judge N. Randy Smith said in his dissent:

“In making its decision, the majority ignores the Supreme Court’s constant admonition to determine issues of qualified immunity at the earliest stage of litigation by failing to apply the summary judgment rules related to the doctrine of qualified immunity.”

The jurist filled in some details. He recited that Elkins was suspected of a car burglary; the day before he was shot, Elkins, in seeking to avoid arrest, rammed his vehicle into an occupied police patrol car’ he drove his vehicle at a police officer who was on foot, and who jumped to safety and fired at Elkins, hitting him twice in an arm.

On the day of the fatal shooting, efforts were renewed to apprehend Elkins. Catching up with him, he alighted from his car and ran.

Deadly Force

Smith wrote:

“…Officer Pelayo was pursuing a suspect, known to use deadly force to escape capture. When Officer Pelayo saw the suspect reach into his waistband, he believed the suspect was attempting to retrieve a weapon. As a result, Officer Pelayo responded with deadly force.”

In a footnote, he commented:

“[T]the fact that Officer Pelayo did not know whether Elkins was armed is not dispositive. Officer Pelayo knew that Elkins was dangerous and was willing to use deadly force to escape capture, because Elkins had rammed an occupied police vehicle and nearly ran over Officer Marvin.”

The case is The Estate of Elkins v. Pelayo, 16-16227.


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