Cop Loses Immunity After Shooting, Headstomping Gravely-Injured Suspect

Legal Issues

from the rollback dept

Court decisions stripping officers of immunity for civil liberties violations are still mostly an anomaly. But we’ll take what we can get. This immunity-stripping decision by the Ninth Circuit Appeals Court appears to have been aided by the police department’s own dashcam video, which helped dispel some of the “our word against yours” haze that clouds excessive force cases.

In this case, acts of violence followed several seizures (of the epileptic variety, rather than the law enforcement variety). From the decision [PDF]:

Connor Zion suffered several seizures. He then had a seemingly related episode where he bit his mother and cut her and his roommate with a kitchen knife. Police were called. Deputy Juan Lopez arrived at Zion’s apartment complex. As Lopez exited his police car, Zion ran at him and stabbed him in the arms. Deputy Michael Higgins drove up separately and witnessed the attack on Lopez.

This was then followed by more acts of violence. Some of it clearly excessive, according to the court.

What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers. Zion is seen running toward the apartment complex. Lopez Video 2:58. Higgins shoots at him from about fifteen feet away. Higgins Video 3:25. Nine shots are heard and Zion falls to the ground. Lopez Video 2:54. Higgins then runs to where Zion has fallen and fires nine more rounds at Zion’s body from a distance of about four feet, emptying his weapon. Id. at 3:00–03. Zion curls up on his side. Id. Higgins pauses and walks in a circle. Id. at 3:05. Zion is still moving. Id. at 3:00–12. Higgins then takes a running start and stomps on Zion’s head three times. Id. at 3:11–20.

Here’s the video, courtesy of the Appeals Court.

This footage proves key to the Ninth’s decision. As it points out, Higgins’ statements don’t align with the events captured by the cruiser’s dashcam

Higgins testified that Zion was trying to get up. But we “may not simply accept what may be a self-serving account by the police officer.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. Lopez Video 3:01.

The video shows Higgins shooting Zion several times from point-blank range, pausing a few moments before deciding to stomp Zion’s head three times. At all times, Zion is laying on the ground almost motionless (he raises his head once after the second salvo of shots).

As the court points out, law enforcement officers are allowed to use deadly force until the threatening situation has terminated. But that does not mean officers are allowed to deploy force until the person is “terminated.” Higgins appears to believe he’s entitled to maintain some sort of force continuum right up until EMS crews haul the dead body away. That’s where he’s wrong. Or at the very least, there’s at least two ways a jury might find him culpable for violating Zion’s rights.

Plaintiff doesn’t challenge Higgins’s initial nine-round volley, but does challenge the second volley (fired at close range while Zion was lying on the ground) and the headstomping. By the time of the second volley, Higgins had shot at Zion nine times at relatively close range and Zion had dropped to the ground. In the video, Zion appears to have been wounded and is making no threatening gestures. Lopez Video 3:04. While Higgins couldn’t be sure that Zion wasn’t bluffing or only temporarily subdued, Zion was lying on the ground and so was not in a position where he could easily harm anyone or flee. A reasonable jury could find that Zion was no longer an immediate threat, and that Higgins should have held his fire unless and until Zion showed signs of danger or flight. Or, a jury could find that the second round of bullets was justified, but not the head-stomping.

[…]

[T]erminating at 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.

With that, the Ninth Circuit sends the case back to the district court, overturning its summary judgment in favor of Officer Higgins. It also points out the plaintiff is entitled to recover her costs for the appeal. And, importantly, it unseals the two videos it relied on to reach its conclusions, so the public can draw its own conclusions about the incident in question in light of the officer’s misleading statements.

Filed Under: 9th circuit, dashcam video, immunity, police, police brutality