A decision this month by the Ninth U.S. Circuit Court of Appeals in San Francisco opens the door for a California police officer to stand trial in front of a jury on civil rights claims for December 2011 shooting death of an unarmed man.
The wrongful death lawsuit was brought by the family of the 31-year-old Hispanic man who was shot less than a second after a Tustin, Calif., police officer ordered him to take his hand out of his pocket.
The appeals court decision ran counter to the decision, in 2013, of the local county attorney’s office, which called the shooting “reasonable and justified.”
The day of the shooting, the man’s ex-girlfriend called 911 to report that he had hit her and stolen her cell phone. She told the police dispatcher that he had never been violent before and that he did not have a weapon. Two officers in separate patrol cars responded to the call and learned from the dispatcher that the man was on parole for drug possession and a possible traffic warrant.
The officers saw the man walking down the street with one hand in his sweatshirt pocket and attempted to box him in with their patrol cars. Both officers drew their guns and one ordered the suspect to take his hand out of his pocket. Video captured by a police dashboard camera shows the man immediately complying with the order, but in less than a second, the officer named in the wrongful death lawsuit fires two shots in rapid succession.
In their ruling, the Ninth Circuit judges upheld the decision of a U.S. District Court judge that the officer is not entitled to qualified immunity for his use of deadly force.
The purpose of qualified immunity is two-fold. It balances “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Qualified immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions.
The three-judge appeals court panel also concluded that the officer “violated clearly established Fourth Amendment law when he shot” the suspect.
The goal of the Fourth Amendment is to protect people’s right to privacy and freedom from arbitrary governmental intrusions. It provides that the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Nearly 1,000 police officer-involved shootings were recorded in the U.S. last year, more than double the average number reported annually by the FBI in the past decade, according to a year-long reporting project by The Washington Post, which found the majority of those shot were armed. The newspaper found that half of those killed were white yet, even though “black men represent 6 percent of the U.S. population, they made up nearly 40 percent of those who were killed while unarmed.”
If you believe your rights or the rights of a loved one have been violated and have resulted in injury or death, you may be entitled to compensation. Call the offices of trial attorneys Charles Gilman and Briggs Bedigian at 800-529-6162 or contact them online. The firm handles cases in Maryland, Pennsylvania, and Washington, D.C.
About the Author