Courtesy of James R. Touchstone, Esq.
On June 11, 2018, in the case of Vos v. City of Newport Beach, 2018 U.S. App. LEXIS 15633 (U.S. June 11, 2018), the Ninth Circuit Court of Appeals decided that a reasonable jury could conclude the officers’ deadly use of force constituted excessive force thereby violating the individual’s Fourth Amendment rights. However, the Court also determined that the officers were entitled to qualified immunity on Plaintiffs’ Fourth Amendment claims because the law was not clearly established that their actions were unconstitutional. The Court remanded the case for consideration of several other claims, including an Americans with Disabilities Act claim, Rehabilitation Act claim, and various state law claims.
On May 29, 2014, Gerritt Vos entered a 7-Eleven convenience store and became agitated, running around the store. He continued running about the store yelling while other customers went about their business. A call to the police was made informing them that a man was “behaving erratically and brandishing a pair of scissors”. At a point before the police arrived, Vos grabbed a store employee and yelled, “I’ve got a hostage” before letting him go. The employee’s hand was cut when he attempted to take the scissors away from Vos.
Officer Kresge arrived at the scene and signaled for the store clerks to exit the building. The clerks told the officer that an employee’s hand had been cut by the scissors when he tried to disarm Vos. Officer Kresge had seen Vos running, screaming, and pretending to have a gun before closing himself in the back room. When other officers arrived, Officer Kresge notified them that Vos was agitated and could be under the influence of narcotics.
As the officers prepared to take Vos into custody, they armed themselves with both lethal and non-lethal weapons, and positioned themselves behind police cars in front of the store, surrounding the store entrance. Vos suddenly emerged from the back room and charged towards the officers with what appeared to be an edged weapon raised over his head. When Officer Preasmyer ordered Vos twice to drop his weapon and Vos did not comply, Officer Preasmyer ordered the officer with the non-lethal 40 mm weapon to shoot Vos. However, this order was not heard by the officer deploying the 40 mm launcher. Nevertheless, the less lethal officer deployed his 40 mm launcher. Seconds later, two other officers armed with AR-15 rifles shot Vos. Vos died shortly thereafter from his injuries. Medical history later revealed that he was a schizophrenic.
The action was brought by Vos’s parents against the City of Newport Beach alleging 12 separate legal claims involving several Section 1983 claims, including excessive force, a violation of the Americans with Disabilities Act, a violation of the Rehabilitation Act and multiple state law claims. The district court granted the defendant’s motion for summary judgment regarding all claims brought by the parents and the parents appealed.
The Ninth Circuit first determined whether the use of force was reasonable under the circumstances. The Court balanced the “nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Court cited A.K.H. ex rel. Landeros quoting, “the use of deadly force implicates the highest level of Fourth Amendment interests both because the suspect has a ‘fundamental interest in his own life’ and because such force ‘frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.’” A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016). Thus, because the officers used deadly force against Vos, the issue turned to whether government interests justified the nature of force used.
In examining the government’s interests, the Court measured three Graham factors: (1) the severity of the crime, (2) whether the suspect was an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting or attempting to evade arrest. Graham, 490 U.S. at 396. Here, the Court stated, there was not a report of a crime but rather of an agitated man with erratic behavior. Secondly, and most importantly according to the Court, Vos did not pose an immediate threat to the safety of the officers. The Court stated, “[h]ere, the facts are such that a reasonable jury could conclude that Vos was not an immediate threat to the officers. The officers had surrounded the front door to the 7-Eleven, had established positions behind cover of their police vehicles, and outnumbered Vos eight to one. The officers saw that Vos had something in his hand as he charged them, but they did not believe he had a gun, and the officers had less-lethal methods available to stop Vos from charging. Even though only eight seconds passed between when Vos emerged from the back room and when he was shot, construing the facts as they are presented by the Parents and depicted in the video footage, a reasonable jury could conclude that Vos did not pose an immediate threat such that the use of deadly force was warranted.”
The City of Newport Beach contended that Vos initiated and forced the confrontation and the immediate threat to safety is like that in Lal v. California. In Lal, the Court held the officers reasonably believed Lal would throw a rock at them and initiated the hostility by proceeding towards the officers. Further, the Court concluded the officers did not have to endanger their lives to allow Lal’s dangerous conduct to continue. Lal v. California, 746 F.3d 1112, 1117 (9th Cir. 2014). The Court distinguished Lal on the basis that the officers in Lal requested less-lethal means but did not have it available when Lal advanced towards them. In the case at hand, the Court observed, the officers surrounded the store door, had lethal and less-lethal force options available, such as the 40 mm launcher, a K-9 and Tasers, and had a defensive cover before Vos emerged from the store.
The Court acknowledged that it is not necessary for officers to use the less intrusive force, but that the availability of other measures to subdue an individual may be considered when analyzing government interests. Specifically, the Court stated, “[a]lthough officers are not required to use the least intrusive degree of force available, Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994), ‘the availability of alternative methods of capturing or subduing a suspect may be a factor to consider,’ Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005) (citation omitted).” In addition, the Court stated, “[f]inally, it is undisputed that Vos was mentally unstable, acting out, and at times invited officers to use deadly force on him. These indications of mental illness create a genuine issue of material fact about whether the government’s interest in using deadly force was diminished.”
Based upon this analysis, the Court concluded that a reasonable jury could find that the use of deadly force constituted a constitutional violation under the circumstances. However, the Court further concluded that the officers were entitled to qualified immunity regarding their use of deadly force, and on the other Section 1983 claims pled, because it was not clearly established that their use of deadly force under the circumstances they encountered would necessarily constitute a constitutional violation. The Court observed that, “[h]ere, officers confronted a reportedly erratic individual that took refuge in a 7-Eleven, cut someone with scissors, asked officers to shoot him, simulated having a firearm, and ultimately charged at officers with something in his upraised hand. The relevant inquiry is whether existing precedent placed the conclusion that officers acted unreasonably in these circumstances ‘beyond debate.’ Mullenix, 136 S.Ct. at 309. It did not.”
Monell and Civil Conspiracy
The Court noted that the district court granted summary judgment for the City of Newport Beach as to the parents’ Monell and civil conspiracy claims because it did not find a constitutional violation. Because a reasonable jury could find a violation of Vos’s constitutional rights, the Ninth Circuit remanded these claims for consideration by the district court in the first instance.
ADA and Rehabilitation Act
The Court analyzed the ADA claim and Rehabilitation Act claim together because they have identical rights and remedies. The Court noted that Title II of the ADA prohibits a public entity from discriminating against any qualified individual with a disability. In order to state a claim under Title II of the ADA, a plaintiff must show: “(1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of a public entity’s services, programs or activities; (3) he was either excluded from participation in or denied the benefits of the public entity’s services, programs or activities or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits or discrimination was by reason of his disability.” Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014) (Sheehan I).
In the present case, the Court stated that the district court “improperly read a provocation requirement into accommodation.” The Court further stated that, “[w]hile Sheehan I addresses provocation in the context of a plaintiff’s excessive force claim, see 743 F.3d at 1230, the reasonableness of accommodation under the circumstances is an entirely separate fact question, see id. at 1233 (citing EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010)).” However, in this case, the Court posited that the officers had both the time and opportunity to evaluate the situation and apply the accommodations suggested by the parents, including “de-escalation, communication, or specialized help.” The Court further stated that “the district court’s decision was based in part on its earlier determination that the officers’ actions were objectively reasonable. The same fact questions that prevent a reasonableness determination inform an accommodation analysis.” As such, the Court reversed the district court’s ruling granting summary judgment as to the parents’ ADA and Rehabilitation Act claims.
State Law Claims
The parents of Vos also brought negligence claims under state law. In California, police officers must “act reasonably when using deadly force.” Hayes v. County of San Diego, 57 Cal. 4th 622, 160 Cal. Rptr. 3d 684. 305 P.3d 252 (Cal. 2013). However, the Court held that because the district court erred in concluding the officers’ use of deadly force was reasonable under the Fourth Amendment, summary judgment for the City on this claim must be reversed. As to the remaining claims under state law causes of action for assault, battery, and California Civil Code §52.1, the Court reversed summary judgment for the City because the district court erroneously held that the use of deadly force was reasonable.
In his brief dissent, Circuit Judge Bea expressed his disagreement with the majority’s ruling. The officers knew that Vos had committed a serious crime when he stabbed a store employee in the hand with scissors. He was running through the 7-Eleven with scissors in his hand and even grabbed an employee calling him a hostage. When Vos charged at the officers with full speed holding a metal weapon raised above his head, the officers ordered him to drop the weapon twice. Despite the orders to drop the weapon, Vos continued towards the officers and as such, the use of deadly force was reasonable under the circumstances. While the majority relied on the Graham factors, the dissent observed that it failed to consider that reasonableness should account for quick decisions that police officers must make in high pressure situations. The officers only had mere seconds in deciding to use deadly force against Vos. Although Vos was found to be mentally ill, the dissent stated that the Court has never ruled that officers must put themselves in danger if the threat is coming from a mentally ill individual. Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir 2010). Because the officers reacted reasonably to the threat they faced, the dissent felt that the judgment of the district court should be affirmed.
HOW THIS AFFECTS YOUR AGENCY
While the Vos case constitutes a victory for the involved law enforcement officers in this case, in that they were awarded qualified immunity on several federal claims, the victory is somewhat pyrrhic in nature. Specifically, while disposing of the use of force and related claims by granting qualified immunity to the officers, the Court permitted the ADA and Rehabilitation Act claims to proceed. In denying summary judgment to the defendant officers on these claims, the Court made some troubling pronouncements. Specifically, the Court stated, “[s]imilar to the situation in Sheehan I, the officers here had the time and the opportunity to assess the situation and potentially employ the accommodations identified by the Parents, including de-escalation, communication, or specialized help. While the defendants rely on the officers’ pre-shooting conduct to argue they accommodated Vos to the extent required by the law, those facts arguably show further accommodation was possible.”
In making these pronouncements, the Court blatantly ignored the facts of the encounter, as documented in part on videotape. Pointedly, while the officers did have time to create a perimeter and deploy several less lethal force alternatives, the facts of the incident lend force to the argument that Vos’s actions, in quickly charging at the officers present while apparently armed with an edged weapon, essentially nullified many of the options potentially available. It is difficult to de-escalate, communicate and utilize specialized help, such as a qualified mental health professional to attempt to address an apparent mental health crisis, when someone is taking actions consistent with trying to stab you. There is no pause button in a use of force incident, as amply illustrated by this case. This decision tacitly condones the after-the-fact second guessing of officers’ actions by those sitting in the quiet repose of a judge’s chambers. I seem to recall that this decision-making approach might be inconsistent with some other case law from a little while back….
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 The dissent disputed the majority’s characterization of the situation. Specifically, the dissenting judge noted that, while the initial call was regarding an agitated man, Vos later arguably committed several criminal offenses, including assault with a deadly weapon, false imprisonment, criminal threats and disturbing the peace.
The dissent also noted that Vos could have travelled the approximately 41 feet from the back of the store to the officers with the edged weapon in hand in 3.4 seconds, thus providing them with approximately 2 seconds to make the decision to shoot Vos after Vos was warned twice to drop the weapon as he charged at the officers.
 See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).