Monday, July 10, 2017
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Ninth Circuit Says:
Wrongful Shooting Case Against Pasadena to Proceed
By a MetNews Staff Writer
A man who claims he is the victim of an unprovoked police shooting is entitled to take his case to trial, the Ninth U.S. Circuit Court of Appeals held on Friday, rejecting the contention by the City of Pasadena and one of its former police officers that qualified immunity applies.
The plaintiff, Paris DeShawn Holloway, asserts that on Oct. 11, 2013, Officer Bartman Horn—then with the Pasadena Police Department, now with the police force in Anaheim—got out of his police vehicle, tried to converse with him, chased him on foot when he fled and, after he took out a gun and slung it over a fence while facing away from Horn, was shot multiple times, causing permanent paralysis.
On appeal from an order by U.S. District Court Judge Christina A. Snyder of the Central District of California declining to dismiss Holloway’s action alleging excessive force and denial of medical care, the city and Horn argued that in light of his no-contest plea to resisting arrest, Holloway’s conduct necessarily involved “threats, force or violence,” which would vest in the officer qualified immunity.
No Contest Plea
In a memorandum opinion, the appeals court disagreed, saying:
“The facts alleged in Holloway’s complaint are not contradicted by his no contest plea to a violation of Cal. Penal Code § 69. Because this appeal concerns a motion to dismiss, we must accept all factual allegations in the complaint as true….Accordingly, the case may be dismissed only if it is not possible to construe Holloway’s plea as consistent with the facts he alleges in his complaint. Here, the plea may be construed as consistent with those facts.
“Under California law, Holloway could have violated the statute either by attempting to deter Officer Horn from pursuing him ‘by means of…threat,’ or by resisting him ‘by the use of force or violence,’…when he removed a gun from his pants and threw it over the fence, even if he never pointed it at Officer Horn. Under California law, the mere brandishing of a weapon in the open may be ‘threatening’ or ‘violent.’ Displaying a weapon, even if only momentarily, before throwing it over a fence, could plausibly be intimidating to an officer in pursuit.”
Two Cases Cited
The opinion pointed to resisting-arrest cases founded on “behavior that was far less threatening or violent than the conduct which Holloway acknowledges he engaged in here.”
In one, the U.S. District Court for the Central District of California, interpreting the California statute, found that a conviction may be predicated on the defendant refusing to sit on the curb when ordered to by an officer and directing profanity to him. In the other (where there was a reversal based on instructional error), the state Court of Appeal appeared to accept the proposition that a conviction could be based on the defendant “swinging his hands” at officers while in a sitting position and without making contact.
Friday’s opinion went on to say:
“Even if Officer Horn were correct that a conviction under §69 required that Holloway point his gun at Horn, that would not change the outcome of this case. Taking the remaining facts in the light most favorable to Holloway, he threw his gun over the fence before Officer Horn shot him. Hollowly suffered immediate paralysis upon being shot, yet when other officers arrived, they found his gun on the other side of a tall wooden fence about ten feet away. Plaintiff had been shot in the back, including directly in his spinal cord, supporting the inference that he was not pointing a firearm at Officer Horn at the time that Horn opened fire. This is sufficient to deny qualified immunity….”
Shooting Unarmed Person
Holloway has asserted that Horn shot him several times after he was down on the ground. The opinion observed:
“Shooting an unarmed, injured person who is unmoving and bleeding profusely while lying on the ground would in itself be sufficient to defeat qualified immunity.”
The case is Holloway v. Horn, Nos. 15-56770, 17-55284.
The Office of Los Angeles County District Attorney, in 2014, found no validity to Holloway’s claims. It determined:
“The evidence examined in this investigation shows that Officer Horn was attempting to detain Holloway who ran from Horn while clutching his waistband. Believing that Holloway was a gang member armed with a weapon, Horn chased him on foot. When Holloway fell, Horn ordered him to stay on the ground. Instead, Holloway pointed a handgun toward Horn. Horn fired his service weapon in self defense.”
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