SAN FRANCISCO (CN) — A lawsuit claiming two police officers violated the free speech rights of a mentally ill man when they shot him on his front porch after he yelled and cursed at them to go away will likely go to trial, a federal judge signaled in court Friday.
“Don’t all the issues on qualified immunity, aren’t they all disputed facts?” U.S. District Judge Susan Illston said during a virtual court hearing Friday. “I don’t see how I can rule on the qualified immunity issue unless the facts are determined.”
Illston is presiding over a civil rights suit over the Jan. 6, 2017, shooting of Sean Moore in San Francisco’s Oceanview neighborhood. Officers Kenneth Cha and Colin Patino showed up at Moore’s home at 4 a.m. responding to reports that Moore violated a court-issued restraining order to stop harassing his neighbor.
Moore was accused of banging on a wall that separated his and his neighbor’s homes. When officers climbed a stairway and arrived at Moore’s front gate, Moore stepped on his porch behind the gate and told them to “get the fuck off my stairs.”
The officers went up and down the steps three separate times as the altercation escalated. They told Moore to come outside, and when he did, they deployed pepper spray and struck him with a baton. Moore responded by punching Patino, breaking his nose and kicking Cha down the steps before Cha took out his gun and shot the unarmed man twice in the stomach.
Moore died three years later at San Quentin state prison while serving time for unrelated offenses. An autopsy released this past July found Moore’s death partly resulted from a gunshot wound to his abdomen.
Following his death, Moore’s parents replaced him as plaintiffs in the lawsuit.
During a hearing on dueling motions for summary judgment Friday, Illston said she was inclined to reject the city’s entire motion, except for its request to strike down a Monell claim, which would require showing the police department had an unconstitutional custom or practice that led to a civil rights violation. The motion to strike that claim was unopposed.
Illston also said she was leaning toward granting the plaintiffs’ motion to find the officers were not lawfully performing their duties when they attacked Moore, a conclusion the California First District Court of Appeal reached in a separate case in 2018.
In that decision, the court found the officers’ “refusal to leave Moore’s home when he repeatedly demanded that they do so” transformed their attempt at a “consensual encounter” to investigate a potential crime into an unlawful detention.
Because they never witnessed Moore violate the restraining order, the officers had no probable cause to detain or arrest him, the court concluded.
The state appeals court also clarified that the finding does not mean all the officers’ subsequent actions were unlawful if they were legitimately responding to illegal behavior or physical threats by Moore.
San Francisco Deputy City Attorney Kelly Collins insisted the officers had probable cause to arrest Moore, not only for the alleged restraining order violation, but because he was obstructing an investigation and disturbing the peace.
Based on her review of police body camera footage, Illston said it looked like the officers “were trying to provoke” Moore into doing something that might justify an arrest.
“They kept coming at him,” Illston said. “Every time they said something, it provoked a response. They said ‘Is that a threat? Are you threatening me,’ as if they wanted him to do that.”
Collins replied that it was Moore’s hostility that escalated the situation. Body camera footage shows one of the officers initially saying “Whoa. Chill out man,” in response to Moore’s expletive-laden outbursts.
Civil rights lawyer Adante Pointer, of the John Burris law firm, accused the officers of failing to follow their training by missing multiple opportunities to de-escalate the situation.
“You have the officers poking the bear and telling the bear to come out of the cage,” Pointer said.
Illston acknowledged the video shows Cha and Patino telling Moore to open his front gate and come outside.
When Moore followed those commands and moved toward the officers, he was met with batons and pepper spray. Pointer and his co-counsel Patrick Buelna say Moore did not punch or kick the officers until after he was attacked. The city maintains the use of force was justified because Moore “aggressively opened the gate and advanced on the officers.”
Buelna argued that defending oneself against excessive and unreasonable force by officers is not illegal.
“There is nothing in the law that says you have to sit there and let an officer beat you unconstitutionally,” he said.
Moore’s parents also claim the officers violated the Americans with Disabilities Act by failing to recognize Moore was suffering from a mental illness, schizophrenia. The officers had been trained to recognize signs of mental illness and to adjust their tactics accordingly, the lawsuit contends.
Collins said that claim should be rejected because there was no way for officers to know Moore was suffering from a mental illness based on his conduct.
“Mr. Moore was angry,” Collins said. “He was acting in a belligerent manner but not an incoherent manner.”
On the First Amendment retaliation claim, Collins insisted that no connection exists between Moore’s aggressive speech and the force used against him.
Beulna countered by citing the Ninth Circuit’s 1990 decision in Duran v. City of Douglas, which found a similar case in which a suspect flipped off and cursed an officer presented a factual dispute as to whether the arrest was retaliatory. Such disputes must be resolved by a jury, he argued.
After an hour of debate, Illston said she was inclined to deny most of the city’s summary judgment motion and to grant the plaintiffs’ motion to find the officers were not lawfully performing their duties when they re-entered Moore’s stairway and used physical force against him, meaning they would not be entitled to qualified immunity.
Moore was imprisoned in 2018 for assaulting two kids at a park with a hate crime enhancement. He received another three-year sentence in 2019 for making death threats by phone against a female civilian employee at Taraval police station, according to the San Francisco District Attorney’s Office.
The office of San Francisco District Attorney Chesa Boudin, which last month launched its first homicide prosecution against an on-duty officer in the city’s history, has yet to decide whether to file charges against Cha or Patino for their use of force against Moore. A decision to press charges could indefinitely delay the civil litigation.
Boudin’s office did not immediately provide requested information on the status of the Moore shooting probe, which is handled by its Independent Investigations Bureau.
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