PASADENA, Calif. (CN) – The Ninth Circuit affirmed denial of qualified immunity Wednesday to a Los Angeles police officer facing excessive-force claims for firing into a group of teenagers after he mistook a replica gun for a real weapon.
Jamar Nicholson Green, then 15, and three of his friends were listening to rap music in an alley a few blocks from their Los Angeles high school. It was the group’s regular meet-up spot for freestyling and rapping before class.
Green’s friend held a plastic Airsoft gun with a bright orange tip while he was rapping and dancing in the circle.
But just as the teens turned off the music and started the trek to class, they heard multiple gunshots, which one teen mistook as gunfire from nearby gangs.
In fact, LAPD officer Michael Gutierrez had come across the group and, after seeing the toy gun, fired his gun at least three times into the crowd of teens. One bullet hit Green in the back.
After the shooting, Gutierrez and his partner Everardo Amaral detained the students for over five hours while they investigated. Green wore handcuffs during his examination at the hospital, where officers also interrogated him.
Green and his friend Jason Huerta sued the LAPD and the city, claiming Gutierrez violated their Fourth Amendment rights against unlawful arrest and excessive force by shooting at them and holding them in handcuffs for five hours. The pair also said the shooting violated their 14th Amendment due process rights.
The students claimed the officers, who were not in uniform at the time, failed to identify themselves as police and did not give any verbal commands before the shooting.
Gutierrez’s attorneys argued the officers announced themselves properly and that Gutierrez was a “mere bystander” who played no direct role in the students’ prolonged detention.
But the Ninth Circuit panel disagreed, affirming a federal judge’s denial of qualified immunity on Fourth Amendment violation claims.
In a 21-page ruling by U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, wrote an officer can be held liable when they participate in a “sequence of events” that violate victims’ constitutional rights.
“Here, it was soon apparent to the officers that the teenagers were unarmed, posed no threat to anyone, and were not engaged in any criminal activity,” Nguyen wrote for the panel. “The incident occurred in the morning right before the start of school hours, and plaintiffs had their school uniforms and backpacks. In fact, as Officer Gutierrez approached the scene, J.N.G. was spraying on cologne and J.H. was donning his school uniform.
“Moreover, Officer Gutierrez admitted that he perceived at least J.H. to be a possible victim, not a suspect, further undermining any justification to detain him,” she continued. “We agree with the district court that under these circumstances, plaintiffs’ continued detention for five hours – well after any probable cause would have dissipated – and the use of handcuffs throughout the duration of the detention violated plaintiffs’ clearly established Fourth Amendment rights to be free from unlawful arrest and excessive force.”
The panel said it’s up to a jury to decide Gutierrez’s part in the incident.
“Ultimately, because a reasonable jury could conclude that Gutierrez played an integral role in the unlawfully prolonged detention and sustained handcuffing of plaintiffs, we affirm the district court’s denial of qualified immunity on the Fourth Amendment claim,” Nguyen wrote.
But while the panel agreed Gutierrez’s shooting into the crowd and hitting Green – “J.N.G.” in the opinion – “shocks the conscience and was unconstitutional under the 14th Amendment,” the lack of analogous precedent at the time precluded the lower court’s denial of qualified immunity.
“Because no binding circuit or Supreme Court precedent has established a substantive due process violation under comparable circumstances, the 14 Amendment right at issue lacked ‘contours . . . sufficiently definite’ to place the issue ‘beyond debate,’” Nguyen wrote, citing the Supreme Court ruling Kisela v. Hughes. “We accordingly reverse the district court and remand for an entry of qualified immunity on this claim.
The panel remanded the case.
U.S Circuit Judges Andrew J. Kleinfeld, a George H.W. Bush appointee, and R. Guy Cole Jr. a Bill Clinton appointee to the Sixth Circuit, sitting by designation, joined Nguyen’s opinion.
Plaintiffs’ attorney John Harris of Harris & Associates said by email he was disappointed by the granting of qualified immunity, “despite having clearly found that his shooting of our client in the back while on his way to school was done so with deliberate indifference to his inalienable rights under the 14th Amendment.”
He added: “We look forward to proceeding to trial in this egregious case of a police shooting of innocent children going to school. We will be evaluating at a later date to file a writ of certiorari to the U.S. Supreme Court on the issue of whether qualified immunity should have been granted where an innocent bystander is shot due to a police officer’s deliberate indifference to human life. If the Supreme Court grants certiorari, we believe that this will be a landmark decision.”
Defendants’ attorneys did not respond to requests for comment by press time.