Court Dissects SF Shooting|of Man With X-Acto Knife

     SAN FRANCISCO (CN) — Defending police who killed a man with schizophrenia, attorneys for San Francisco told the Ninth Circuit on Monday that officers had a reasonable basis to view the man’s 1-inch blade as a deadly weapon.
     U.S. Circuit Judge Marsha Berzon seemed doubtful.
     “How much risk is enough risk to justify killing this man?” she asked. “Was there any realistic belief he was going to do something to endanger someone’s life as opposed to using this teeny little knife to scratch someone?”
     San Francisco police shot Tony Bui to death on Dec. 29, 2010, while his niece was entertaining about 15 other teenagers at the family home.
     Startled by a slammed door, according to one of the family’s court filings, Bui had “scratched” one his niece’s guests with an X-Acto knife.
     Bui’s family says the cut hardly needed a Band-Aid, but Bui’s niece called 911, following her mother’s orders, so that Bui could receive medical attention for his episode.
     City attorneys paint the situation as more serious, saying Bui had demonstrated he was dangerous by having already “stabbed” someone, just an inch from the teen’s spinal cord.
     Though a federal judge refused to grant immunity to the officers who shot Bui, the city is pushing for reversal from the federal appeals court.
     Deputy City Attorney Christine Van Aken told a three-judge panel at Monday’s hearing that police believed it reasonable on the day Bui died to use lethal force in a situation like his.
     She said it was years after Bui’s death, in the 2013 case Hayes v. County of San Diego, that the Ninth Circuit established deadly force was not reasonable in such a situation.
     In 2010, however, “the officers were not on notice they were not qualified to shoot,” Van Aken said.
     U.S. Circuit Judge Ronald Gould is on the panel with Berzon weighing San Francisco’s appeal, joined by U.S. District Judge William Sessions, who is sitting by designation from Vermont.
     Bui’s family says officers had no reason to perceive the man as a threat. Their response brief notes that Bui was physically slight at just 5-foot-6, 135 pounds. The medication Bui had been taking for his schizophrenia gave left him with tardive dyskinesia, causing Bui to shuffle slowly.
     “The police officers aren’t accurately telling us what happened that day,” attorney Andrew Schwartz said Monday at the hearing. Schwartz represents the Bui family with the Walnut Creek firm Casper, Meadows, Schwartz & Cook.
     His brief notes that when police arrived to take Bui into custody, Bui was alone in the bathroom. “Everyone was calm,” the brief states.
     Bui was holding the knife when he followed officers’ orders to exit the bathroom, Schwartz notes, but he was holding the blade at his side, not brandishing it.
     Schwartz says Bui did not confront the officers or resist arrest; he shuffled toward them slowly and bent over, a side effect of his medication.
     The family blames police for escalating the situation with shouts that agitated and confused Bui.
     Since the police dispatcher had informed the officers that Bui was “mentally challenged,” the brief says police should have talked Bui out of the bathroom and used a bean-bag weapon to subdue him instead of a gun.
     Police deny having known Bui was mentally ill.
     “The court needs to find out what the facts are,” Schwartz said. “Did in fact the officers know this man was mentally ill and say he wasn’t? [Bui’s sister] Cindy Tran claims she told the officers he was mentally ill, yet the officers deny it.”
     “There are so many disputed facts,” Schwarz added. “This is not the time to let this case go.”

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