(CN) — A police officer who shot an unarmed man in a traffic stop urged the Ninth Circuit on Thursday to call off his upcoming civil trial, arguing that he fired his weapon because he thought the life of another officer was in danger.
The shooting happened at about 3 a.m., on July 21, 2018, near the intersection of Dobson Road and Southern Avenue in Mesa, Arizona. Court documents show that the driver, 21-year-old Anthony Lopez, admitted he had been drinking that night, but police say he ignored commands to turn over his keys. Lopez instead put one hand on the wheel and the other on the shifter and put the car in reverse, knocking officer Heath Carroll to the ground, causing him to drop his stun gun, and striking the officer's squad car.
Carroll stood up and fired off nine bullets in less than 2 seconds. Eight of them struck Lopez, who died from his wounds. In a statement later, Carroll said he believed that Lopez had knocked down his partner, Jena Thranum, with his car as well and was reversing over her body. He claims he fired his weapon out of the belief that Tranum's life was in danger.
Lopez’s parents cast doubt on the officer's claim Thursday, however, arguing before a panel of Ninth Circuit appellate judges in San Francisco.
“I think that was made up after the fact to justify an unjustified shooting,” Dale Galipo said.
With no evidence for Carroll to believe his partner was in harm's way, Galipo suggested Carroll acted out of anger that Lopez was ignoring his instructions.
Patricia and Caesar Lopez sued Carroll and the city of Mesa for the death of their son in 2019. Though a federal judge ruled for Carroll and the city on most counts last year, three counts are headed to a jury trial in Phoenix. Carroll faces two counts for excessive force and due process, and the city faces one count for wrongful death.
Mesa attorney Kim Alvarado pushed for a reversal Thursday, stating that Carroll is entitled to qualified immunity for his use of deadly force based solely on his belief that Thranum’s life was in danger.
The argument seemed to miss the mark.
“What if that perception is not reasonable?” U.S. Circuit Judge Jacqueline Nguyen asked. “Is that not a question of fact for the jury?”
Alvarado told the Obama-appointed judge that Carroll and Thranum were in each other's line of sight before the car reversed, but Carroll then lost sight of Thranum, which suggested to Carroll that she was underneath Lopez’s car.
The attorney for the Lopezes questioned meanwhile whether Carroll actually held that belief.
“He never saw the car hit her,” Galipo told the panel. “He never saw her fall down. Never heard her scream or yell.
“If she was there, under the car, she would have been in the background of his nine shots.”
Galipo also noted that, mere seconds after Carroll fired nine times, the officer asked Thranum to make a dispatch call.
“If he thought that she was actually under the car, it’s unlikely he would have been asking her, immediately after the shots, to make a radio dispatch,” Galipo said. “He would have looked under the car first.”
U.S. Circuit Judge Kenneth Lee, a Trump appointee, reminded Galipo that Carroll lost his stun gun after the car struck him, which could support his use of deadly force if left with no other options.
Galipo didn’t budge.
“Losing a Taser does not suddenly justify the use of deadly force when it’s otherwise inappropriate,” the lawyer said.
Alavardo, the city's lawyer, focused on the assumption that Thranum was in the path of Lopez’s vehicle but noted on rebuttal that, even if nobody was in the path of the car, the shooting would still be justified.
“We don’t know what this vehicle was going to do,” she told U.S. Circuit Judge Daniel Collins, a Trump appointee. ”All we know is it was used to hit an officer and back into another vehicle.”
Collins noted earlier in the hearing that the footage from Carroll’s body-worn camera faces away from the scene. Only after all nine shots are fired, does it turn. This could suggest that the officer was intentionally hiding the action, the judge noted.
“That’s an unusual feature,” Collins said. “Couldn’t a jury draw an adverse inference? Can a jury look at that and decide not to believe his testimony?”
“It actually goes to show how quickly Carroll was acting,” Alvarado countered. She said it would be unreasonable to expect officers to think about the orientation of their bodies while making split-second decisions.
Collins said it would have been easier for Carroll to see Thranum if his body faced the right way.
The panel took the case under advisement Thursday afternoon.
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