9th Circuit Takes Second Pass at Police Shooting Case

SAN FRANCISCO (CN) – The parents of a man shot and killed by police challenged a $330,000 wrongful death award before a Ninth Circuit panel on Tuesday, while the city involved argued that any award is too big.

A federal judge cleared the police department of Fresno, California, of liability in the shooting death of Stephen Willis, but the Ninth Circuit overturned that ruling and ordered a trial.

A trial held in late 2013 found that one of two police officers who shot Willis had used excessive force and was negligent in his death.

The jury awarded Willis’ parents $1.5 million in damages for the loss of their son's love, comfort, companionship and care. But the amount they were awarded was reduced because the jury also found that Willis had been 80 percent to blame for his death.

Once again before the Ninth Circuit on Tuesday, Fresno's lawyer James Weakley spent most of his allotted time painting a picture of the confrontation between Willis and two officers that that led to Willis' death. Weakley argued the trial evidence did not support a conclusion that the officers violated the Willis' Fourth Amendment rights or were negligent in their use of lethal force.

Weakley said that inconsistencies in the jury's decision-making compromised its verdict. But the three-judge panel did not seem to find anything unreasonable about the jury's conclusion.

Circuit Judge Paul Watford said the jury could believe one of two versions of events: either Willis was reaching for a gun when he was fatally shot, or he wasn't. But without a record of the jury's conclusions about Willis' last moments, he said Weakley's conjecture about why the jury arrived at its 80/20 allocation of blame was "doomed."

Weakley responded that if the jury believed Willis was just lying on the ground when police shot him, they would not have assigned 80 percent of the liability to him.

Circuit Judge Richard Clifton followed up on Watford's reasoning. "The jury doesn't have to believe 100 percent of either story. It can mix and match,” he said.

"In this case, if they said, 'If Willis was doing all the things you said he did, but at the end he was lying and wasn't reaching for the gun and your client shot him anyway,’ that seems to me the most plausible way to reconcile the jury's determination," Clifton said.

An attorney for Willis’ parents told the panel that a new trial should be held to focus on the pain and suffering that Willis suffered before he succumbed to his wounds. Beau Burbidge also asked that his side's attorneys' fees, which were cut down by 35 percent, be revisited if the panel was to grant a new trial.

Burbidge criticized the lower court for allowing Fresno's trial lawyers to repeatedly point out that Willis was under the influence of alcohol and marijuana when he died. He said that outside of places like San Francisco, the idea of drug and alcohol use "permeates" jurors' consciousness.

While Watford said the evidence of impairment is relevant to a jury that is determining if Willis may have acted erratically, Burbridge argued the impairment evidence was emphasized to the point that it became more prejudicial than probative.

Weakley is with Weakley & Arendt in Fresno.

Burbidge is with Walker, Hamilton & Koenig in San Francisco.

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