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Anaheim Must Face Suit Over BB Gun Shooting

SANTA ANA, Calif. (CN) — The Ninth Circuit revived claims against police Wednesday for killing of a man carrying a realistic-looking BB gun in Anaheim, California.

The shooting occurred on Jan. 7, 2012, when officers responded to a 911 call about a suspected drug dealer, armed with a shotgun, loitering in an apartment complex parking lot.

Two of the four officers responding officers claim to have said something along the lines of "show me your hands" and "let go of the gun," but they say Bernie Villegas instead lifting what they believed to be a shotgun from the ground.

Officer Nick Bennallack admits he did not give a warning before he fired at Villegas five times. It turned out the weapon Villegas has was a realistic-looking BB gun.

Villegas died from his wounds, and his family filed suit, alleging excessive force in violation of the Fourth Amendment, as well as state-law negligence and wrongful-death claims.

Though a federal judge found for the city at summary judgment, the Ninth Circuit reversed in part today.

Considering the facts in the light most reasonable to the Villegas family, according to the 12-page ruling, a reasonable juror could find that deadly force was not objectively reasonable.

"None of the officers provided a clear time line of when they switched from ordering Villegas to raise his arms to ordering him to drop the gun, or how long after that switch Villegas had to comply with the new command before Bennallack opened fire," Judge John Owens said, writing for a three-person panel.

The officers at the scene also offered differing testimony as to whether Villegas reached for the gun or was already holding it in the moments before Bennallack fired.

Owens said summary judgment is thus inappropriate for Anaheim on the basis that Bennallack's deadly force was legally justified.

Though the panel said Bennallack is not entitled to that immunity on the state-law claims, it did affirm the finding for the officer on the federal claims, since it was not clearly established that he used "excessive force" under the Fourth Amendment.

The Villegas family is represented by Federico Sayre with Flynn, Treyzon & Associates in Santa Ana.

Assistant City Attorney Moses Johnson represents Anaheim.

Neither attorney responded to emails seeking comment.

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