Wednesday, September 4, 2019
Opinion Says Qualified Immunity Was Properly Denied Where Law Enforcement Officer Fired at Man Whose Arms Were at His Side Though One of His Hands Held a Firearm; Accounts of Incident Vary
By a MetNews Staff Writer
A San Diego County sheriff’s deputy, who has been exonerated by local authorities in connection with the fatal shooting of a man, is not entitled to qualified immunity, under a decision by the Ninth U.S. Circuit Court of Appeals.
The facts that were taken as true by the federal court, for the purpose of its review of the interlocutory appeal, and those determined by the county, are in marked contrast.
In a memorandum opinion filed Friday, a three-judge panel said that District Court Judge Gonzalo P. Curiel of the Southern District of California did not err in denying summary judgment to Deputy Steven Block, on the basis of qualified immunity, in a civil rights action by Cynthia Kendrick, widow of the man felled by bullets, Gary Kendrick.
Qualified immunity is available where there was no “clearly established” law at the time of an incident that rendered the conduct of a government employee unlawful.
A three-judge panel—comprised of Senior Circuit Judge Mary M. Schroeder, Circuit Judge Ryan Nelson, and Joan H. Lefkow, a District Court judge for the Northern District of Illinois, sitting by designation—said:
“In March 2015, when this incident occurred, it was clearly established that the use of lethal force against someone who is armed and mentally unstable, but not suspected of any criminal wrongdoing, is reasonable only if that individual made a ‘furtive movement,’ ‘harrowing gesture,’ or ‘serious verbal threat.’…Construing the facts in plaintiff’s favor, Mr. Kendrick did no such thing. He was shot by Deputy Steven Block while he was standing with his arms outstretched, parallel to the ground.”
San Diego’s View
That isn’t what happened, according to findings by county officials. The memorandum opinion does not allude to those findings—including Gary Kendrick having been armed, intoxicated, and suicidal, and having been shot after pointing a gun at Block.
San Diego’s Community Law Enforcement Review Board on April 17, 2017, adopted this finding (referring to Block as a “Deputy 1,” indicating his rank):
“The decedent had a medical history significant for depression, and had reportedly been drinking alcohol heavily, having marital problems, and threatened to kill himself. On March 27, 2015, he armed himself with a shotgun and told his wife he would shoot himself if police responded. A neighbor tried to intervene and the decedent threatened to shoot the neighbor. Rescuers were called and the decedent was found sitting in a grassy area near his residence, gun barrel to his chin, with a vodka bottle nearby. Deputy 1 approached and took cover at the corner of a garage. He instructed Kendrick to drop the weapon and the decedent called for the deputy to shoot him. Kendrick raised the gun in the deputy’s direction and Deputy 1 fired three times. Kendrick sat up and raised the gun again so Deputy 1 fired again, killing him.”
State of Intoxication
The board said that Kendrick’s blood alcohol content was .28 percent—.08 percent is the level of intoxication set for purpose of the DUI statute—and remarked:
“Individuals sometimes commit crimes with the specific intention of provoking a law enforcement response. ‘Suicide by Cop’ encompasses those who are contemplating suicide and want to provoke police to kill them. The evidence showed Deputy 1 was faced with a situation of imminent danger when Kendrick pointed his shotgun at the deputy; his responsive reactions were lawful, justified and proper.”
On May 13, 2016, then-District Attorney Bonnie Dumanis released a report finding that Block was justified in using deadly force. Noting that Kendrick had attempted suicide before, it said:
“Block was faced with a situation of imminent danger when Kendrick pointed his shotgun at Block. Block reasonably believed Kendrick was going to kill him.”
At oral argument in Pasadena on Aug. 16, further facts emerged. Attorney Morris G. Hill, representing the defendants, said of Kendrick:
“The undisputed facts in this case is that he held a shotgun in one hand.”
Lefkow interjected: “Which was not pointed toward the officer.”
“Right. Well—the officer says [Kenrick] was in the process of pointing it toward him but we can’t go there because we have to assume the state of the facts that the District Court assumed.”
Under the facts assumed by Curiel, the gun was not pointed at Block at the moment he fired the fatal shot. However, Hill queried:
“How long does it take to wheel a shotgun around and point it at somebody and fire?”
“A split second.”
“Well, that’s not really true, is it? It takes more than a split second.”
Schroeder suggested that the factual disputes would be appropriately resolved by the jury.
Treatment of Widow
A second issue in the interlocutory appeal was the contention by seven members of the Sheriff’s Department who were involved in the seven-hour interplay with Cynthia Kendrick in the aftermath of the fatal shooting of her husband—depicted by her as a detention—that summary judgment should have ben granted based on to seven defendants who sought qualified immunity was whether was subjected to an unreasonable seizure of her person by sheriff’s deputies
Her attorney, Brody A. McBride of San Diego’s Singleton Law Firm, asserted at oral argument that the widow was held by deputies for seven hours after her husband had died, barefooted, and, after being left in isolation at a sheriff’s station for four hours, was questioned for two-and-a-half hours on such matters as her sex life.
Hill maintained that there was no coercion, telling the judges:
“If she had wanted to be released, she would have been released.”
He advised that the only indication she had made of wanting to leave was saying that she had to get home to feed her dogs. She could not be allowed to go to her home, the lawyer explained, because a search there was in progress, and an assurance was given to her that the deputies would attend to the feeding.
When Schroeder declared that the “behavior of the officers was quite aberrational,” Hill responded:
“I don’t see anything aberrational about wanting to interview a witness to a fresh homicide.”
Schroeder said, flatly: “Who just saw her husband killed by police.”
Resolution of Issue
The memorandum opinion says that at the time of the incident, it was “clearly established that citizens cannot be detained for hours on account of being witnesses to a crime.” It sets forth:
“Here, after watching a deputy shoot her husband, Cynthia was taken from her husband’s body, effectively locked in the back of a police car, transported to a police station, placed in a guarded interrogation room for almost four hours, then subjected to two and a half hours of questioning, and another hour of being photographed. As plaintiff argues, there were several less intrusive ways in which officers could have questioned Mrs. Kendrick about the shooting, so this investigative detention was not ‘minimally intrusive.’ ”
The case is Kendrick v. County of San Diego, 18-55480
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