Mistaking Gun for Taser Could Cost Cop

(CN) - A California couple can sue the police officer who shot and killed their unarmed son while he was handcuffed in the back of a patrol car because the officer mistook her semiautomatic pistol for a Taser, the 9th Circuit ruled.

Officer Marcy Noriega was one of several officers who responded to a complaint about loud music in Madera, Calif., on the night of Oct. 27, 2002. Everardo Torres and another man were arrested, handcuffed and placed in the back of a patrol car. After being held in the car for 30 to 45 minutes, Torres fell asleep and woke up apparently enraged. He began kicking the car door, yelling to be let out of the car. Worried that Torres might kick out a window and hurt himself, Noriega decided to deploy her Taser, which she kept in a thigh holster below her holstered Glock.

Without looking at the weapon in her hand, Noriega fired a bullet that ultimately killed the 24-year-old Torres.

Noriega had a history of mixing up her gun and her Taser, according to the ruling. She had done it at least twice before, though without the tragic consequences, and was told by a supervisor to practice drawing and distinguishing the weapons every day, which she did.

Torres' parents sued the city of Madera and Noriega in California's Eastern District, seeking damages for allegedly illegal search and seizure. Chief U.S. District Judge Anthony Ishii granted the officer's motion for summary judgment, finding that a Fourth Amendment violation could not have occurred because Torres had not been "seized." In an earlier appeal, the 9th Circuit remanded the case back to the lower court and directed Ishii to determine "in the first instance whether Officer Noriega's mistake in using her Glock rather than her Taser was objectively unreasonable, for only then would Everardo have suffered a constitutional injury."

But the District Court again sided with Noriega, ruling that her mistake had been reasonable and that she was entitled to qualified immunity from the family's lawsuit. On a second appeal, the three-judge panel in Seattle again reversed Judge lshii.

"While a jury might ultimately find Officer Noriega's mistake of weapon to have been reasonable, it was inappropriate for the District Court to reach this conclusion in the face of material disputes of fact," Judge Michael Daly Hawkins wrote for the court.

There are simply too many open questions about the incident to clear the case through summary judgment, especially considering that Torres posed no threat to the officers, being unarmed and handcuffed in the back of patrol car, and considering Noriega's documented problems with telling her weapons apart, according to the panel.

"Officer Noriega applied deadly force to an unarmed, nondangerous suspect, and there could be no reasonable mistake that this use of force was proscribed by law," Hawkins wrote.

"Her only stated concern was for Everardo's own well-being, but a jury might question the reasonableness of choosing to send 1,200 volts of electricity through a person when the alleged concern is for that person's safety," he added.

A jury could reasonably decide that the proposed use of a Taser on the handcuffed suspect would amount to excessive force and violation of the Fourth Amendment, according to the panel.

"Here, there is no dispute that Everardo had committed no serious offense, though acting out, posed no immediate threat to Officer Noriega's safety or that of anyone else, and, far from 'attempting to evade arrest by flight,' was sitting handcuffed in the back seat of a patrol car," Hawkins wrote. "The amount of force ultimately applied was a lethal shot from a semiautomatic handgun. Thus, if a jury were to find Officer Noriega's mistaken belief that she was holding her Taser rather than her Glock unreasonable, her use of force in this situation was excessive and violated Everardo's Fourth Amendment rights. Because there remain material factual issues in dispute on which a jury could make such a finding, the Torres Family has properly alleged the violation of a constitutional right, and summary judgment based on failure to do so was improper."

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