9th Circuit Revives Suit Over OC Police Killing

PASADENA, Calif. (CN) – The Ninth Circuit on Wednesday revived an excessive force case against Orange County, California, involving the shooting death of a man by police who subsequently stomped on the victim’s head.

A three-judge panel unanimously held that while Orange County police officer Michael Higgins had sufficient cause to shoot Connor Zion after witnessing him stab a fellow officer, Higgins’ act of firing nine more rounds into Zion as he lay curled in a fetal position on the ground and then – after a running start – stomping on his head three times may be seen by a jury as excessive force.

The case dates back to September 2013, when the 21-year-old Zion began suffering seizures and beaving erratically, eventually cutting his roommate and his mother with a knife.

Police were summoned to the scene, with Orange County Sheriff’s officer Juan Lopez arriving on the scene first. Zion attacked Lopez as the officer exited his vehicle, stabbing him in the arms.

Higgins arrived shortly thereafter and witnessed Zion stabbing Lopez in the arms. Zion then fled toward the apartment complex, at which point Higgins fired approximately nine shots at Zion, who collapsed to the ground and curled up in the fetal position.

What happened next was captured by dashcam videos installed in both Higgins’ and Lopez’s vehicles. The video footage was unsealed by the panel, which included Circuit Judge Stephen Reinhart and U.S. District Judge Terrence Berg, sitting by designation from the Eastern District of Michigan.

After Zion collapsed due to the initial shots, Higgins raced up to within four feet of where Zion lay and fired nine more rounds into his body, according to the ruling by Circuit Judge Alex Kozinski.

Kozinski said a jury must decide if this action violated Fourth Amendment prohibitions on excessive force, partly overturning a federal judge’s summary judgment in favor of the county.

He and the panel also held Higgins misrepresented that Zion continued to try and attack him after he initially fell to the ground, finding the video footage contradicted the officer’s version of events.

“Higgins testified that Zion was trying to get up. But we ‘may not simply accept what may be a self-serving account by the police officer,’” Kozinski wrote, citing the appeals court’s holding in 1994’s Scott v. Henrich. “This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. This is a dispute of fact that must be resolved by a jury.”

As for possible violations of the 14th Amendment, Kozinski said Higgins’ shooting of Zion did not rise to that level since it “served the legitimate purpose of stopping a dangerous suspect.”

He continued: “The head stomps are different. After the two volleys, the video shows Higgins walking around in a circle for several seconds before returning for the head strikes. He even takes a running start before each strike. This is exactly the kind of ‘brutal’ conduct the Due Process Clause protects against. Like forced stomach-pumping, head-stomping a suspect curled up in the fetal position ‘is bound to offend even hardened sensibilities.’”

Zion’s mother brought the $25 million wrongful death suit in 2014, claiming that although the officers were justified in shooting her son after he stabbed Lopez, Higgins’ subsequent actions were excessive and deprived her son of due process.

The panel upheld the lower court’s summary judgment for Orange County on the mother’s claims to hold the county liable, which she had admitted lacked merit.

The case was remanded to the lower court for trial on the Fourth and 14th Amendment claims.

 

 

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