Metropolitan News-Enterprise


Wednesday, February 7, 2024


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City Not Liable in Fatal Shooting of Woman Believed to Be Fleeing Felon—Ninth Circuit


By a MetNews Staff Writer




The Ninth U.S. Circuit Court of Appeals yesterday affirmed a summary judgment in favor of the City of San Jose in the case of the fatal shooting of a woman on Christmas morning in 2018 by officers who mistakenly believed she was a fleeing felon and pursued her in a high-speed chase when she declined to submit to a traffic stop.

Although the woman, Jennifer Vasquez, had not participated in a non-fatal drive-by shooting that had just occurred nearby, she fled because there was an outstanding warrant for her arrest. After her car crashed, defying officers’ orders and although boxed in by police vehicles, she attempted to so maneuver her automobile as to escape.

Officers opened fire, hitting her more than 15 times with bullets, causing her death on the scene.

District Court Ruling

Suit was brought against the city and three officers by Vasquez’s parents. District Court Judge Edward J. Davila of the Northern District of California on Sept. 30, 2022, held that Vasquez’s Fourth Amendment right to freedom of movement had not been violated and that, in any event, the officers were entitled to qualified immunity because they did not breach a clearly established right.

He said that officers had reason to believe she had been involved in the drive-by shooting “and therefore posed a risk of harm to the public.” The judge recited that after her car crashed into a fence, “the officers attempted to blockade her vehicle using their patrol vehicles; they warned Ms. Vasquez to cease flight, stating that they would discharge their weapons if she did not; despite being surrounded, Ms. Vasquez continued to accelerate and attempted to escape for almost a minute before hitting Officer [Eliseo] Anaya’s patrol vehicle, pushing it back towards him as she continued to accelerate.”

Davila said the need to prevent “the escape of a suspected armed felon who posed an ongoing threat to the public outweighs the ‘gravity of the intrusion’ under these circumstances,” adding:

 “This is particularly true in situations where the safety of the officers and the public is at risk—as was the case here.

“For the foregoing reasons, the Court finds there is not sufficient evidence in the record upon which a reasonable jury could find that the Officers violated the Fourth Amendment by fatally shooting Ms. Vasquez under such circumstances.”

Qualified Immunity

Davila added:

“[E]even if the Officers’ conduct was excessive their actions would be protected under qualified immunity because their conduct did not violate a clearly established right.

“Because Plaintiffs fail to identify a case that pre-dates the incident where an officer acting under similar circumstances as the Officers were held to have violated the Fourth Amendment, the Court finds that the Officers are therefore entitled to qualified immunity.”

Supreme Court Decision

The District Court judge pointed to the U.S. Supreme Court’s 2014 decision in Plumhoff v. Rickard. There, officers fatally shot one Donald Rickard following a high-speed chase when he attempted to resume his flight after he crashed into a police car.

Justice Samuel Alito wrote:

“Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road….

“[I]t is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk.”

Davila said in granting summary judgment:

“Likewise, Ms. Vasquez continued her attempts at flight even after the crash when she was surrounded by police. The Officers fired their weapons only after, despite being warned to stop, Ms. Vasquez’s vehicle lurched forward and hit Officer Anaya’s patrol vehicle as she tried to escape through the gap between the vehicles.”

Affirmance came in a memorandum opinion by a three-judge panel composed of Ninth Circuit Judge Milan D. Smith Jr., Ninth Circuit Senior Circuit Judge Richard R. Clifton, and Sixth Circuit Judge Eugene E. Siler, sitting by designation. They said:

“We exercise our discretion to decide only whether the alleged unlawfulness of the officers’ conduct was clearly established at the time of the use of force…, and conclude that it was not.”

The judges reasoned:

“Given the close similarities between Plumhoff and the instant case, the illegality of the officers’ conduct here could not have been ‘clearly established.’ ”

They added:

“None of Appellants’ proffered cases suggest otherwise….At the very least, those cases put the officers’ conduct here in the ‘hazy border’ between excessive and constitutional force, entitling the officers to qualified immunity.”

A footnote advises:

“To the extent the parties cite to cases decided after December 25, 2018, the date of the relevant conduct…, we do not consider them as relevant to the analysis of the ‘clearly established; prong of the qualified immunity test.”

The case is Vasquez v. City of San Jose, 22-16691.


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