Provided by CPOA Legal Counsel, James R. Touchstone, Jones & Mayer
In the case entitled Crawford v. City of Bakersfield,[1] the Ninth Circuit Court of Appeals vacated a district court’s judgment in favor of a police officer after a jury trial found in favor of the officer for the fatal shooting of an individual that was attacking the officer with a metal club. During the incident, which was the subject of the litigation, Michael Dozer (decedent) attempted to set a person on fire with gasoline and then strike the officer in the head with a metal object. The finding of the Court was that the district court abused its discretion by not allowing the decedent’s mother to testify about her son’s past mental illness issues and his treatment during the trial. All of this information regarding Dozer’s alleged mental illness, and his treatment therefore, was unknown to the officer at the time of the shooting.
Facts
In 2014, Elsa Torres was getting gasoline for her car at a gas station when the decedent, Michael Dozer, approached her and removed the gasoline nozzle from her car as it was filling. Dozer proceeded to spray gasoline on her and on the ground surrounding both of them. Miss Torres’ children were in the car at the time. Dozer then set the gasoline on fire. Miss Torres was able to escape the flames and drive away in her car. Miss Torres called the police and told dispatch there was a man “trying to burn us.” She also relayed to dispatch that Dozer was now at a minimart “knocking all the stuff down.” Bakersfield Police Officer Aaron Stringer was assigned the call where he was informed that “a subject at the gas station … had poured gasoline on a woman and tried to light her on fire” and that the woman’s children were in the car too. Stringer was also informed that the woman “had been lit on fire and that she put it out and left the scene.”
Upon arriving on scene, Officer Stringer spoke with Torres. He did not observe any burns on her. However, a witness corroborated that Dozer had poured gasoline on Torres. Stringer observed Dozer move towards the minimart. There were people approximately twenty feet away from Dozer. Officer Stringer observed Dozer “pacing around” and looking “very agitated.” The officer thought Dozer’s behavior was “erratic” and “aggressive in general.” Before his backup arrived, Officer Stringer approached Dozer so that he could hear what Dozer was saying. As he approached Dozer, Officer Stringer heard Dozer say. “You want to do this. Let’s go.” Officer Stringer responded, “No, let’s not do this. I just want to talk to you.” Based on Dozer’s “amped up” behavior and his “angry” demeanor, Officer Stringer concluded that Dozer was challenging him and that he was under the influence of a narcotic. He also concluded that the situation would “most likely…escalate quickly,” thus he requested an expedited back up.
Dozer stopped approximately twenty feet away from Officer Stringer, whereupon Officer Stringer ordered him to get on the ground. Upon hearing Officer Stringer’s order, Dozer began moving “very quickly” towards the officer and picked up a horseshoe-shaped bike lock, raised it over his head and started “charging” towards the officer. Officer Stringer ordered Dozer to drop the metal lock as he attempted to back up. Officer Stringer drew his firearm as Dozer charged towards him. Officer Stringer also had a Taser, baton and pepper spray on his person, but because of Dozer’s fast approach with the metal bike lock, Officer Stringer asserted that he did not have enough time to deploy any of these devices. Within one minute of his arrival, Officer Stringer shot Dozer as Dozer advanced toward him with the metal bike lock. Another witness stated that Dozer was approximately five to ten feet away from Officer Stringer when Dozer was shot. Other witnesses gave some variations in their testimony regarding the specifics of the encounter between Dozer and Officer Stringer.
Trial Proceedings
During the trial, the jury learned about the police officer’s training when it involves suspects exhibiting potential signs of mental illness. California POST teaches officers that when a person exhibits erratic and irrational behavior and attempts self-harm, these are signs of mental illness and that an officer should “slow-down, wait for back-up, speak slowly, move slowly, turn down their portable radio, and consider ways of subduing the person using minimal force.” In addition, plaintiff’s expert opined that Dozer’s behavior was consistent with a person that is “mentally ill or experiencing a mental crisis.” According to the plaintiff’s expert, when dealing with a person with mental illness, the objective of an officer is to “calm them down” and “just get them handcuffed, with the least amount of force possible.” In the Dozer encounter, plaintiff’s expert faulted Officer Stringer for not waiting for backup officers, especially since Dozer was not “actively” committing any crime at the time. Defendant’s expert disagreed and found that Dozer continued to be “an immediate threat to the citizens” and that he also confronted the officer with the imminent threat of deadly force by swinging the metal bicycle lock.
During the trial, the plaintiff’s attorney also attempted to introduce testimony from Dozer’s mother, Leslie Crawford, regarding Dozer’s past ordeals with mental illness and the various treatment programs he had attended over the years. Plaintiff’s counsel was also going to have her testify that Dozer was “schizophrenic.” The district court barred Crawford from testifying about her past observations regarding Dozer and his mental illness since Officer Stringer knew nothing about Dozer’s past, however. The district court ruled that her personal observations were not relevant as to whether the police officer should have known that Dozer’s behavior could have been caused by mental illness. Moreover, the district court concluded that she was not qualified to render her opinion regarding his mental status by stating he was schizophrenic. However, the district court permitted evidence concerning whether Dozer’s behavior was due to drugs or to mental illness because the evidence was relevant as to whether the force used by the police officer was reasonable.
During closing arguments, Dozer’s attorney stated that it should have been apparent to any reasonable officer that Dozer was emotionally disturbed and that shooting Dozer was unreasonable. With regards to Dozer’s mental illness, defense counsel pointed out the lack of evidence regarding Dozer’s mental illness since very little was produced that supported the allegation that Dozer was mentally ill.
The jury found in favor of Officer Stringer. Plaintiff appealed to the Ninth Circuit.
Discussion
The Ninth Circuit determined that the district court abused its discretion in denying Plaintiff the opportunity to testify concerning her past observations of her son and the treatment for mental illness that he had received. The Court reversed the case and remanded it for a new trial.
The Court noted that Plaintiff Crawford alleged that “that Stringer used excessive force in violation of the Fourth Amendment and that his actions were negligent under California law.” The Court acknowledged that the encounter between the officer and Dozer required a Graham v. Connor analysis with respect to the excessive force claim. The Court observed that “[i]n evaluating a Fourth Amendment excessive force claim, the jury asks ‘whether the officers’ actions were ‘objectively reasonable’ in light of the facts and circumstances confronting them.’” [Citations omitted.] That analysis requires balancing the ‘nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’” Vos v. City of Newport Beach, 892 F.3d 1024, 1030 (9th Cir. 2018) (quoting Graham, 490 U.S. at 396).” The Court further observed that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Id. at 1031 (quoting Graham, 490 U.S. at 396).” The Court noted that the “‘three primary factors’ in assessing the government’s interest are (1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ and (3) ‘whether the suspect is actively resisting arrest or attempting to evade arrest by flight.’” Id. at 1033.
As to the claim for negligence under California law, the Court observed that, “Crawford’s wrongful death claim turned on similar considerations. To prevail on her negligence theory, Crawford had to show that Stringer ‘had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’” Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 160 Cal. Rptr. 3d 684, 305 P.3d 252, 255 (Cal. 2013) (quoting Nally v. Grace Community Church, 47 Cal. 3d 278, 253 Cal. Rptr. 97, 763 P.2d 948, 956 (Cal. 1988)). The Court further noted that, “California’s totality-of-the-circumstances inquiry includes pre-shooting circumstances and thus ‘is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used.’” Id. at 263.
The Court also stated that, “[t]he district court correctly held that evidence of Dozer’s mental illness was relevant because the reasonableness of Stringer’s use of deadly force depended in part on whether he knew or should have known that Dozer’s behavior was caused by mental illness.” The Court indicated that it had “‘refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals,’ [but] our precedent establishes that if officers believe a suspect is mentally ill, they ‘should make a greater effort to take control of the situation through less intrusive means.'” Vos, 892 F.3d at 1034 n.9 (alterations omitted) (quoting Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010)).” The Court concluded with the following analysis: “‘[W]hether the suspect has exhibited signs of mental illness is one of the factors the court will consider in assessing the reasonableness of the force used, in addition to the Graham factors, the availability of less intrusive force, and whether proper warnings were given.’ Id.”
In applying these principles, the Court stated, “The district court abused its discretion, however, in holding that Crawford’s proposed testimony was irrelevant on the ground that Stringer, at the time of the shooting, did not know about the past events to which Crawford would have testified. Crawford’s testimony regarding Dozer’s past behavior and treatment was relevant to whether he was in fact mentally ill at the time. Evidence that Dozer had previously behaved in ways consistent with mental illness and had been taken to mental health providers for treatment, makes it more likely that he continued to suffer from mental illness on the day of the shooting. In turn, whether Dozer was in fact mentally ill that day is relevant to whether he would have appeared to be mentally ill, and thus to whether Stringer knew or should have known that Dozer was mentally ill; after all, the existence of some underlying fact tends to make it more likely that a person knew or should have known that fact.”
Thus, according to the Court, Crawford’s testimony about Dozer’s past behaviors and treatment was relevant even though the officer knew absolutely nothing about any prior behavior. Moreover, the Court found that the district court’s error in limiting the testimony of Crawford undercut her ability to prove a key component of her case under a negligence theory of recovery. The Court did not explain how the encounter would have been managed by the officer if Dozer was exhibiting the same “peculiar” behavior due to being under the influence of a controlled substance.
HOW THIS AFFECTS YOUR AGENCY
Despite assertions to the contrary, the Ninth Circuit, in effect, has created a two-track analysis to force applications: one approach for a suspect who is not mentally ill and one approach involving any suspect alleged to be mentally ill at the time of the force application. The decision is very troubling since the Court now has imposed what appear to be additional duties on officers when dealing with any suspect that may be acting “peculiar” and could “possibly” be mentally ill. One can only hope that the analysis applied by the Ninth Circuit in this circumstance will work equally in favor of officers who have been placed in a position of using force, as recognized by the case entitled Boyd v. City & Cty. of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009), which found that “[W]here what the officer perceived just prior to the use of force is in dispute, evidence that may support one version of events over another is relevant and admissible.”
Moreover, the Court only tangentially addressed the issue of self-defense by the officer when he was being charged by the suspect with a metal bicycle lock (metal club). While the case was focused on the evidentiary issue, the Court appeared to dismiss the officer’s attempts to “de-escalate” the situation by speaking with the suspect whom he later learned was mentally ill. The Court did not recognize that the potential violent threat that Dozer posed was still viable as long as he was not contained and that there were ample potential victims in the area. The Court concluded that the situation was static and that the officer had ample time to await his request for urgent back up. In a situation that “tense, uncertain, and rapidly evolving,” the Court appeared to utilize hindsight analysis to dictate tactics to the officer- a troubling perspective.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.
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[1] 2019 U.S. App. LEXIS 37056 (9th Cir. 2019)
