Zion v. County of Orange

874 F.3d 1072
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 1, 2017
DocketNo. 15-56705
StatusPublished
Cited by63 cases

This text of 874 F.3d 1072 (Zion v. County of Orange) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zion v. County of Orange, 874 F.3d 1072 (9th Cir. 2017).

Opinion

OPINION

KOZINSKI, Circuit Judge:

When police confront a suspect who poses an immediate threat, they may use deadly force against him. But they must stop using deadly force when the suspect no longer poses a threat. We. explore the murky boundary between these two circumstances.

BACKGROUND

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.

What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers.1 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.

Zion died at the scene. His mother brought suit under 42 U.S.C. § 1983, claiming Higgins used excessive force. She also claims Higgins deprived her of her child without due process. She raised a separate substantive due process claim on Zion’s behalf,- municipal liability claims and various state law claims. The district court granted summary judgment to 'defendants ■on all claims. ■

ANALYSIS

A. Fourth Amendment

1. Police use of force is excessive and violates the Fourth Amendment if it’s objectively unreasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). We assess reasonableness using the non-exhaustive Graham factors: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or-attempting to evade ■ arrest by flight.” 490 U.S. at 396, 109 S.Ct. 1865. The most important factor is whether the suspect posed ah immediate threat. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en bahc). If the evidence, viewed in the light most favorable to plaintiff, could support a jury finding of excessive force, defendants aren’t entitled to summary judgment. Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (en banc).

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 head-stomping. 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.

Defendants argue that Higgins’s continued use of deadly force was reasonable because Zion was still moving. They quote Plumhoff v. Rickard: “[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” — U.S. —, 134 S.Ct. 2012, 2022, 188 L.Ed.2d 1056 (2014). But terminating a 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. See id. This is particularly true when the suspect wields a knife rather than a firearm.2 In our case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack.

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. This is a dispute of fact that must be resolved by a jury.

2. The Fourth Amendment right here was “clearly established.” White v. Pauly, — U.S. —, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam). If a jury determines that Zion no longer posed an immediate threat, any deadly force Higgins used after that time violated long-settled Fourth Amendment law. We have cases holding that the use of deadly force against a non-threatening suspect is unreasonable. See, e.g., Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Harris v. Roderick, 126 F.3d 1189, 1201 (9th Cir. 1997). We’ve also held that continued force against a suspect who has been brought to the ground can violate the Fourth Amendment. In Drummond v. City of Anaheim, we found that officers used excessive force by sitting on a prone suspect’s back, asphyxiating him. 343 F.3d 1052, 1057-58 (9th Cir. 2003). And in Davis v. City of Las Vegas, we held that an officer violated the Fourth Amendment by punching a handcuffed suspect in the face while the suspect lay on the floor. 478 F.3d 1048, 1053 (9th Cir. 2007). If a jury were to find that Higgins shot and/or stomped on Zion’s head after Zion no longer posed an immediate threat, Higgins would have been “on notice that his conduct would be clearly unlawful.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Defendants therefore aren’t entitled to qualified immunity.

B. Fourteenth Amendment

Parents “have a Fourteenth Amendment liberty interest in the companionship and society of their children.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).

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Bluebook (online)
874 F.3d 1072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zion-v-county-of-orange-ca9-2017.