(CN) - The chance that police failed to warn a 23-year-old man before shooting him to death seemed to trouble the 9th Circuit as it reviewed his claims against Fresno police.
Stephen Willis had allegedly been removing a holstered gun and other belongings from the trunk of his car when police opened fire on him without warning. His family sued Fresno and three of its officers for violations of the Fourth and 14th Amendments.
"Without warning or identifying themselves, defendants ... began shooting at Stephen Willis, shot him until he fell or dove to the ground, and continued shooting until they had put 14 bullets into him, including several in his back, out of at least 35 bullets fired at him, and he was dead," the complaint stated.
U.S. District Judge Lawrence O'Neill granted the city and officers summary judgment in July 2011, finding that they had acted appropriately and that Willis had pulled a gun.
At a hearing before the 9th Circuit on Monday, a three-judge panel grilled the parties about whether the police had actually warned Willis.
The law says a District Court cannot dismiss a case in summary judgment if there is any dispute between the parties about important facts underlying the case, and it is a jury's task to determine who is telling the truth.
"The issue that's bothering me is the question of whether the officers began firing before Stephen removed his gun from the holster," Judge Diarmuid O'Scannlain said.
Arguing for the city of Fresno, police officers Greg Catton and Daniel Astacio, as well as police chief Jerry Dyer, attorney James Weakley said the "evidence is very consistent with the fact that Stephen Willis did fire a shot."
Judge N. Randy Smith said he had a problem with Fresno's reliance on its own version of the evidence to defend against the family's appeal.
"Is there ever a time where you took all of what the plaintiff says and say that's the fact and we win nonetheless?" he asked.
If Fresno wants dismissal in summary judgment affirmed, it should accept all the facts the family presented and argue that the family's claims would still fail on legal grounds, Smith said.
"If the material facts are as [the family] suggests, you've got an officer saying, 'I pulled and fired before he even got his gun out,'" Smith said
"How are you going to say there's no disputed issue of fact," he added. "Are you suggesting that police can walk up on this guy who hasn't even pulled his gun, who's got his holster up and turns around, and they can start firing and still say that's not a violation of the Fourth Amendment?"
Weakley replied that police would not be justified to open fire if Willis never pulled the gun out of the holster.
Smith pressed on. "If I can't determine who fired first or if the gun was even drawn, how can I say that those first shots don't have the possibility of shocking the conscience on a 14th Amendment claim," he asked.
In the summary judgment order, O'Neill held that Willis had indeed removed his .38-caliber gun from its holster, giving up his Fourth Amendment right to be free of excessive force.
"Stephen did not enjoy a right to pull a revolver on peace officers responding to perceived erratic driving and initiate a series of events to require peace officers to draw their weapons and fire," his order stated.
Noting that police have immunity from tort litigation unless their actions are unreasonable, O'Neill said "plaintiffs fail to dispute that [police] reasonably drew their weapons and fired after Stephen drew the revolver."
Police "faced rapidly evolving events with no signs of surrender by Stephen," making their decision to shoot reasonable, the order stated.
Willis family attorney Ellen Lake told the court Monday that her strongest argument was that two witnesses and one police officer said police did not warn Willis before killing him. That testimony alone should have stopped the District Court from dismissing her clients' case, she said.
Chief Judge Alex Kozinski asked Lake what she would have a jury find if the case went to trial.
"I'd have the jury find that he turns around with the holstered gun, they shine a light on him and they start to shoot him immediately," she said.
Lake confirmed when Kozinski questioned that this happened "with no prior interaction between him and the police."
One of the two police officers said immediately after the shooting that there had been no interaction before he and the other officer began shooting, Lake said.
Willis may not have even gotten off a shot at police, who may have mistaken their own fire as coming from Willis, she added.
He was caught in crossfire and trying to get away from unknown people shooting at him, Lake said. As he cowered next to a minivan, the two police officers fired on him from opposite sides, which means they were also firing on each other, she added.
Lake also said that the improper firing positions indicate bad training, which implicates the city, the police department and the police chief.
The police department takes three to five years to investigate officer-involved shootings, which means "the officers feel like they can get away free because, as a result of these delays, nothing ever comes of any of these shootings," Lake said.
Lake represents Stephen's parents, Chris and Mary Willis, and Stephen's girlfriend Jennafer Uribe, who was present at the shooting.
James Weakley is with the law firm Weakley & Arendt.
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