(CN) - Three officers of the Santa Rosa, Calif., police department who are being sued by the wife of an unarmed, mentally ill man whom the officers shot to death lost their bid on Monday to have the Supreme Court review their immunity claims.
The 9th Circuit and district court had denied to grant the men and city qualified immunity noting that the facts of the shooting raise triable issues of excessive force.
Patricia DeSantis claims that she and the police dispatcher had told the officers that she had already disarmed her husband, Richard, after he fired shots into the ceiling of their home during a manic phase of a bipolar episode.
She led her husband, wearing only jeans and socks, outside as six officers responded to the scene. Patricia says she waited on the steps to the house holding one of her children, a 2 year old.
The federal appeals panel noted in its April 2010 ruling that the officers had been forewarned that the gun remained in the house and that they could see Richard's hands at all times. They could also see that he was not hiding a weapon in the waistband of his jeans.
While Richard was outnumbered six to one, and began running toward the officers "with a shattered right arm," an officer shot him with a pellet gun called a Sage weapon. Richard kept running at them, and the officers shot him with rifles from 10 yards away, according to the appeals court's ruling.
"None of the officers ever warned Richard that they would shoot him if he did not stop," the ruling states. "The six officers could have used the Sage weapon again, or their Tasers, or their batons, or the dog."
The Sage is "a 'less lethal' weapon that fires a 37-millimeter projectile polyurethane grommet," according to the opposition brief DeSantis filed with the Supreme Court.
In their petition to the Supreme Court, the three officers, police department and the city noted a dissenting judge's opinion issued with the 9th Circuit ruling.
Judge Diarmuid O'Scannlain noted that his colleagues' ruling "would paralyze police officers' ability to make split-second judgments to protect themselves and the public and would eliminate the purpose of qualified immunity."
He said it was reasonable for the officers to fear that DeSantis had a gun in his pocket or the back of his jeans.
The Supreme Court justices did not comment in their decision to reject the officers' petition.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.