Lethal-Force Case Divides En Banc 9th Circuit

     (CN) - Two police officers must face claims that they illegally killed a suspect for trying to flee a traffic stop in Anaheim, Calif., the full 9th Circuit ruled Monday.
     The ruling from a divided, 11-judge appeals panel revives excessive lethal-force claims brought by the family of Anthony Sanchez Gonzalez.
     Anaheim police officer Daron Wyatt shot Gonzalez point-blank in the head when he allegedly tried to drive away from a traffic stop while Wyatt was in the vehicle.
     The incident began when Gonzalez, driving a van, made a dangerous turn into a gas station early one morning in September 2009, cutting off Officers Wyatt and Matthew Ellis in their squad car. A short time later the officers saw the same van weaving in and out of traffic, and a check revealed that it had previously been involved in a narcotics stop.
     The officers stopped Gonzalez and allegedly saw him reaching for something as they approached the van from opposite sides. Ellis said Gonzalez had a plastic baggy balled up in his right hand. When Gonzalez refused to open his hand, Wyatt climbed in the van from the passenger side and punched him in the head and face. Gonzalez struggled and managed to shift the van into gear while Ellis hit him in the head three times with a flashlight. Wyatt said that Gonzalez pushed the accelerator and slapped his hand away when he tried to stop him. The officers said that the van moved forward about 50 feet before Wyatt pulled his gun and shot Gonzalez dead.
     U.S. District Judge Percy Anderson in Los Angeles granted Wyatt and Ellis summary judgment on the excessive lethal-force claims, and a three-judge panel of the 9th Circuit affirmed in 2013, concluding that the officers had acted in reasonable self-defense.
     The appellate court then agreed to consider the issue before an 11-judge en banc panel, which revived the case Monday in a 7-4 reversal.
     Though the trial court had based its grant of summary judgment on the claim that the officers were the only ones left alive to tell the tale of what really happened, the majority called the defendants' take on the incident "physically impossible." Chief Judge Alex Kozinski joined a dissent holding the self-defense line and accusing the majority of second-guessing police in the field.
     Considering the inconsistencies in the officers' testimony as to the relative speed of the van and whether Gonzalez had indeed floored or "stomped" on the gas to get away, a reasonable jury could decide that Wyatt had actually faced little harm, the majority found.
     "Similarly, a jury could find that Wyatt reasonably perceived a threat, but not one that justified the immediate use of deadly force," Judge Richard Clifton wrote for the majority. "The jury may consider the availability of other methods to subdue a suspect. Wyatt had a police baton, pepper spray, and a Taser. He could have used any of them, or he could have shot Gonzalez in a nonlethal area of the body to try to stop him from driving further. Instead, he used his gun and intentionally shot Gonzalez in the head. If the jury found that the car was moving slowly at the time, it could also find that other alternatives could have been used and that the use of deadly force was unreasonable."
     In one of two dissents, Chief Judge Kozinski disagreed and called on the Supreme Court for "a swift summary reversal."
     "It's undisputed that, at the time he fired the fatal shot, Officer Wyatt was trapped inside a moving vehicle driven by a man who had resisted the verbal commands, physical restraints, lethal threats and bodily force of two uniformed officers," Kozinski wrote, joined by Judges Stephen Trott, Richard Tallman and Carlos Bea. "How fast the van was moving and how far it had traveled are beside the point. What matters is that Officer Wyatt was prisoner in a vehicle controlled by someone who had already committed several dangerous felonies. No sane officer in Wyatt's situation would have acted any differently, and no reasonable jury will hold him liable. The only thing this remand will accomplish is to give plaintiffs a bludgeon with which to extort a hefty settlement."
     In a second dissent joined by Kozinski, Tallman and Bea, Judge Trott argued that Wyatt's "act in self-defense was objectively reasonable."