Cop Loses Immunity After Shooting, Headstomping Gravely-Injured Suspect

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.


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  • identicon
    Anonymous Coward, 6 Nov 2017 @ 4:14pm

    The scariest part is that the district court gave a summary judgement for Higgins in this case.

    reply to this | link to this | view in chronology ]

    • identicon
      pcdec, 6 Nov 2017 @ 6:04pm

      Re:

      District courts are simply a rubber stamp for the government. They rarely take our side even in some pretty obvious cases. They bank on the fact most people don't have the money for a lawyer or the skill to bring an appeal to the county court.

      If a judges decision is overturned it should count against them. After a certain number they should be permanently removed. That is the metric that shows how good a judge is so it should decide weather they remain on the job.

      Honestly cops jobs should hinge on this too. If they can't get convictions they shouldn't be making arrests.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 4:15pm

    On my phones this article, and only this article, has text running behind the right side bar

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 4:17pm

    Hey guys, this article is bugging out. I think it has something to do with the embedded video?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Nov 2017 @ 6:50pm

      Re:

      It is indeed the embedded video. The video has a hard width of 640 pixe.s per the width="640". the content box for the whole article is 700px. There is padding on the left side of the video which is then making everything render wrong.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 6 Nov 2017 @ 4:18pm

    Divergence that is not actually qualified

    Cop: I am allowed to do anything I wan't in order to get home for dinner.

    District Court: OK

    Appeals Court: No your not, and to boot this appeal has to be paid for by the public, maybe or maybe not sorry for that last.

    Where in the hell was the District Courts head at? Where in the hell was the cop's head at? Why is this type of behavior continued to be allowed?

    The answers come from where the supervisors and managers and therefore the trainers of the cops involved heads are at, as well as the District Court's thinking, as well as the rest of the organizations that comprise 'officialdom' of the police estate.

    Their purpose is not to kill and/or stomp the heads of anyone they suspect, but to bring them to the halls of justice where by the US Constitution they are considered innocent until proven guilty. Full stop. Innocent until PROVEN guilty by a court (and usually with a jury of the defendants peers), and a court that does not take the police at their word but requires evidence, that at least in theory, requires more than the officers word.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 6 Nov 2017 @ 5:01pm

      Re: Divergence that is not actually qualified

      It's especially astounding when you consider that police don't have the right to go home to dinner at the end of their shift because they have badges, but because everyone has that right.

      But if a non-cop did even a tenth of the things cops routinely get away with using that excuse, that non-cop would be serving a 20 years to life prison sentence, or possibly even awaiting execution on death row.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Nov 2017 @ 6:40pm

        Re: Re: Divergence that is not actually qualified

        No, a non-cop doing what cops do would be shot on sight and possibly have their head stomped a few times for good measure by cops. They didn't join the force to help old ladies across the street.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 4:27pm

    RoboCop

    At this point, the least realistic part of the RoboCop movies is the idea that anyone would associate the directives "serve the public trust, protect the innocent, uphold the law" with a police officer.

    reply to this | link to this | view in chronology ]

  • identicon
    Tin-Foil-Hat, 6 Nov 2017 @ 4:31pm

    Let Me Guess

    There's such a chasm between the competence and professionalism of police forces from state to state and city to city. California stands out in recent memory as one of the worst for brutality and incompetence. Yes, they get away with it but what about self-respect? Stomping someone after emptying your gun into them is pretty cold.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2017 @ 4:42pm

    MyNameHere to the policeman's defense in 3, 2, 1...

    reply to this | link to this | view in chronology ]

  • icon
    Dan (profile), 6 Nov 2017 @ 5:12pm

    Aren't 9 bullets enough?!

    If we are going to pass laws limiting magazine capacity, maybe it should include those used by law enforcement.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 6 Nov 2017 @ 5:18pm

    While reading the court document sheds more light on the story, the Techfirt article fails to mention who was bringing the lawsuit and if the suspect lived or died. It talks about the court decision, but mostly glosses over the specifics of the case itself.

    Also, for some reason, the right edge of the text is cut off by the sidebar. Probably the video messing up the formatting.

    reply to this | link to this | view in chronology ]

    • icon
      Mononymous Tim (profile), 6 Nov 2017 @ 5:31pm

      Re:

      Higgins appears to believe he's entitled to maintain some sort of force continuum right up until EMS crews haul the dead body away.

      reply to this | link to this | view in chronology ]

      • identicon
        Rekrul, 7 Nov 2017 @ 11:50am

        Re: Re:

        Yes, I read that part, but the way it's worded, it could just be talking about the cop's attitude toward a possible outcome, rather than a concrete statement of fact about what actually happened.

        reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 6 Nov 2017 @ 5:24pm

    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.

    Plaintiff doesn’t challenge Higgins’s initial nine-round volley

    Why not? Does it really take NINE shots to incapacitate someone? Seems more like a cowardly "I'll kill you for that!" move. And the rest of his behavior, including the lies, proves it.

    reply to this | link to this | view in chronology ]

    • icon
      orbitalinsertion (profile), 6 Nov 2017 @ 9:57pm

      Re:

      It's almost like he wants to be Not-Hitler in the Wolfenstein trailer.

      reply to this | link to this | view in chronology ]

    • icon
      Oblate (profile), 7 Nov 2017 @ 6:33am

      Re:

      I would guess that most of those nine shots subdued non-compliant shrubbery instead of the primary target. 15 feet can be a pretty challenging distance for some shooters. Obviously the 2-3 shots that did hit Zion, according to his Mom's attorney, were more than sufficient to incapacitate him.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Nov 2017 @ 12:58pm

      Re:

      Having watched the video, to shoot accurately at that rate of fire requires the expenditure of several magazines a day at the range, and if you stop practicing, your accuracy drops off within a week or two. That is why many people call shooting like that spray and pray.

      reply to this | link to this | view in chronology ]

    • icon
      Groaker (profile), 7 Nov 2017 @ 1:09pm

      Re: Mononymous Tim

      Agreed. Why does it take 9 shots to bring down from a suspect at a distance of 15 feet? This policeman appears to be a danger danger to the public, spraying bullets without aiming, or not being able to hit what he is aiming at.

      reply to this | link to this | view in chronology ]

      • identicon
        Will B., 7 Nov 2017 @ 1:32pm

        Re: Re: Mononymous Tim

        This fundamentally fails to inderstand proper gun training. Civilians and cops both are trained to fire until the threat is eliminated; usually by the person going down. A single shot, or two, won't stop someone hopped up on adrenaline even assuming you hit - which even the best shooters guarentee.
        Rather than this argument, I would focus on the other factors - the shots into him on the ground amd the headstomps, which seem far more like sociopathic aggression. The number of rounds fired in the initial volley seems perfectly in line with typical firearms training.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Nov 2017 @ 1:00am

          Re: Re: Re: Mononymous Tim

          The firearms trained UK police usually mange with one or two shots, and then somebody administers immediate first aid.

          reply to this | link to this | view in chronology ]

        • icon
          Groaker (profile), 9 Nov 2017 @ 9:44am

          Re: Re: Re: Mononymous Tim

          Firearms training in the US is an abomination. One proof of this are the pictures of police demonstrating a lack of trigger discipline. This leads to "accidental" shootings.

          reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 6 Nov 2017 @ 6:16pm

    techdirt banner

    The right hand side techdirt banner is blocking the end of the articles' right column

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 7 Nov 2017 @ 2:49am

    Well, the suspect was acting weird. I'm quite sure that if you remain calm, do everything the officer says while clearly stating what you are going to do you are safe. *cough*Philando Castile*cough*

    reply to this | link to this | view in chronology ]

  • icon
    afn29129 (profile), 7 Nov 2017 @ 4:33am

    dial 911 and die.

    This really looks like this police officer was part of a on-call homicide crew. It's how he gets his jollies!

    reply to this | link to this | view in chronology ]

    • identicon
      carlb, 8 Nov 2017 @ 8:51am

      Re: dial 911 and die.

      This is why a "unified" 9-1-1 or 1-1-2 number as a means to summon assistance in a medical emergency is a really bad idea and the publication of separate emergency numbers to summon an ambulance should never have been ended. Dialing 9-1-1 all too often rings directly to the nearest police station.

      The patient in a medical emergency has immigration issues? By calling this into police, you've just handed them an enforcement opportunity. The patient in a medical emergency has overdosed on street drugs? Again, by calling this into police, you've just handed them an enforcement opportunity. And then there's mental illness. The few cops with the skill to "talk down" someone self-destructive or suicidal are more than made up for by the many who are trigger-happy and eager to (at least figuratively) bring a gun to a knife fight, escalating a small problem into a larger one - or even into a fatality. There are also adverse consequences for medical privacy and secrecy; anything called into 9-1-1 could well end up on a police database and be passed on to foreign governments or come up on a background check, even years later.

      An epileptic seizure is a medical emergency, not a police matter. For that matter, if 9-1-1 is the only emergency number still published in local directory and it calls the police station, then overdoses might not be reported in a timely fashion or might not be called in at all - after all, the consequence of reporting those medical emergencies is a prison sentence. Thank you 9-1-1.

      Perhaps we need to go back to posting separate seven-digit local numbers for "cops", "ambulance", "fire brigade" on every telephone handset so that medical calls don't go to the police station by default. For public safety, of course.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Nov 2017 @ 9:00am

        Re: Re: dial 911 and die.

        Sorry, but are you fucking high?

        A guy bits his mom, stabs his mom, stabs his roommate and then runs outside and stabs the responding cop and you say it is not a police matter?

        Hahahahahahahaha, you are a retard. My daughter is an EMT, you think I want her walking up to this fuckhead? You want to walk up to this guy?

        Yeah, talk this guy down, then it happens again and someone is dead. You want that on your head?

        reply to this | link to this | view in chronology ]

  • identicon
    David, 7 Nov 2017 @ 5:33am

    Government employee.

    I mean, 18 bullets to incapacitate an epileptic with a knife, then stomp on his head in the presence of multiple witnesses and running dash cams?

    You can't become a career criminal in the private sector with that sort of incompetence and bone-headedness. If you nevertheless want to pursue a career in crime, you need to get a job in government. And even then, it might not work forever.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Nov 2017 @ 12:24pm

      Re: Government employee.

      "You can't become a career criminal in the private sector with that sort of incompetence and bone-headedness."

      Dude, that's like an entrance exam for Los Zetas.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Nov 2017 @ 7:12am

    Dude bit his mother. Then he stabbed his mother. Then he stabbed his roommate. Then he ran outside and stabbed a responding police officer.

    Sounds like society is better off with this person not walking around and the cop did everyone (besides this douchbag) a favor.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Nov 2017 @ 7:30am

      Re:

      Judge, jury and executioner dressed in blue. I'd rather not have that.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Nov 2017 @ 7:48am

      Re:

      I'm pretty sure society would be much better off without someone so eager to play 'how many rounds can a body hold?' and 'let's see how much fun bouncing someone's head against the pavement with my boot is', especially given their position and the legal authority they are granted.

      Someone who thinks either of those acts is acceptable is not the sort of person who has any business in a job where a gun is part of the uniform, and should probably be kept away from society in general for the public's safety as a clearly dangerous individual.

      reply to this | link to this | view in chronology ]

      • icon
        JoeCool (profile), 7 Nov 2017 @ 8:21am

        Re: Re:

        Someone who thinks either of those acts is acceptable is not the sort of person who has any business in a job where a gun is part of the uniform, and should probably be kept away from society in general for the public's safety as a clearly dangerous individual.

        Judge: In fact, if I could, I would put you in a place where you would be removed from the general public. Perhaps locked in a big, secure building with other dangerous people for a pre-determined period of time, based on the nature and degree of your offense. Unfortunately, as far as I know, no such place exists. So, I have no choice but to set you free.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Nov 2017 @ 12:23pm

        Re: Re:

        Hey, you may not like it, but we do need someone to take out the trash. You going to do it?

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 7 Nov 2017 @ 6:48pm

          Re: Re: Re:

          Not exactly helping your case there(and in fact you're just making it worse). The job of the police is not 'take[ing] out trash', it's enforcing the law. Investigating potential violations, making arrests when warranted for the legal system to deal with, and in cases where force is justified such as the presence of a real threat to life to use using just enough to eliminate the threat(note I said 'threat' and not 'person').

          'Breaking in the new shoes with someone's head' is not in the job description, and again, anyone who thinks that is acceptable behavior has no business being in that line of work or being around others in general, as they are clearly a threat on their own.

          reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 7 Nov 2017 @ 9:56am

      Re:

      If that's the case, why did the cop falsify his report?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Nov 2017 @ 12:15pm

    "Cop Loses Immunity"

    That's what gets for uber-killing somebody he couldn't claim was a drug-enhanced super-negro.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Nov 2017 @ 1:00am

    When seconds count, the police are only minutes away

    reply to this | link to this | view in chronology ]


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