(CN) – The city of Newport Beach, California and three of its police officers must face claims they used excessive deadly force when they fatally shot a schizophrenic man in a 7-Eleven store when he charged at them with a pair of scissors, a split Ninth Circuit panel ruled Monday.
The panel’s majority held in a 25-page opinion that it was unclear whether shooting the man, Gerritt Vos, was justified because a jury could conclude he was not an immediate threat to customers or the officers at the scene.
In making its finding, the Pasadena-based panel noted the officers knew Vos didn’t have a gun, had surrounded the store’s front door and taken cover behind their cars and outnumbered him eight to one.
But Circuit Judge Carlos Bea, appointed by President George W. Bush, dissented in part, arguing the officers reacted reasonably by shooting Vos.
“What the majority ignores is the following undisputed fact: the police were presented with a mere two seconds in which to decide to deploy deadly force,” Bea wrote in his dissent.
“Yes, the officers had a ‘tactical advantage’ as the majority describes,” Bea continued. “In a fight between Vos and the eight officers, the officers would undoubtedly have come out on top. But at what cost? It is reasonable for an officer, with only seconds to react, to conclude that the person wielding what looks like a knife and charging at him and his fellows would do serious harm to at least one of them.”
Newport Beach police responded to a 911 call the evening of May 29, 2014 about Vos acting erratically in a 7-Eleven and brandishing a pair of scissors as if it were a gun.
Officer David Kresge, one of the defendants and the first officer to arrive at the scene, called for backup and for a 40-millimeter less-lethal projectile launcher when he saw Vos disappear into the store’s back room after cursing and shouting at customers and employees.
Agitated, Vos had grabbed and then immediately released an employee, yelling “I’ve got a hostage!” Another employee was cut on the hand with the scissors while trying to disarm Vos before police arrived.
Vos eventually emerged from the back room and charged toward the officers gathered at the front door, brandishing the scissors above his head. Refusing the officers’ command to drop them, he was shot nine times.
One officer shot Vos with the less-lethal weapon. But two others, Officers Richard Henry and Nathan Farris, shot him with AR-15 rifles, killing him.
Henry and Farris, also defendants, later testified they knew Vos didn’t have a gun.
Vos’ blood tested positive for both amphetamine and methamphetamine. He had previously been diagnosed as schizophrenic.
Vos’ parents, Richard Vos and Jenelle Bernacchi, sued the three officers and the city of Newport Beach in 2015 on a host of claims, including wrongful death and violation of the Americans with Disabilities Act and the Rehabilitation Act.
U.S. District Judge James Selna in Santa Ana ruled for the defendants the following year, holding that the use of force was reasonable.
But the Ninth Circuit reversed part of Selna’s ruling on Monday, citing the Supreme Court’s 1989 ruling in Graham v. Connor.
Graham established three factors for measuring the government’s justification for using deadly force, including whether a person poses an immediate threat to the safety of officers or others.
The panel pointed out that in addition to having surrounded the front door of the 7-Eleven and taken cover behind their cars the night Vos died, the officers had less-lethal weapons they could have used, including tasers and dogs.
“The facts and circumstances confronting the officers here are such that whether Vos posed an immediate threat is a disputed question of fact, and one the jury could find in the parents’ favor,” U.S. District Judge Donald Molloy, sitting by designation from the District of Montana, wrote for the majority.
“On these facts, a reasonable jury could conclude that the government’s interests were insufficient to justify the use of deadly force under these circumstances,” Molloy wrote.
Daniel Barer with Pollak, Vida & Barer in Los Angeles, one of the defendants’ attorneys, declined to comment on the ruling.
The defendants had argued that the immediacy of the threat Vos posed by charging at the officers was comparable to that in Lal v. California, in which the Ninth Circuit had ruled that the officers were justified in shooting a man who refused to put down a football-sized rock he threatened to throw at them following a 45-minute high-speed car chase.
But the panel concluded Lal and Vos were not the same. It said that although seven backup officers wielding less-lethal weapons had arrived at the scene by the time Vos advanced on them, backup officers with less-lethal weapons had not yet arrived when Lal advanced.
Moreover, Lal had led officers on a high-speed chase, endangering their lives and those of other drivers, demonstrating he was dangerous, the panel said. By contrast, Vos had inflicted a half-inch cut on an employee’s hand.
The court also noted that six of the officers knew Vos was mentally unstable, further throwing into question the three officers’ justification for using deadly force.
Dissenting, Bea cited the Ninth Circuit’s 2010 ruling in Bryan v. MacPherson, which held that the court can’t “create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals.”
“But that is exactly what the majority does here,” Bea wrote.
“Whether the person who charges the officer does so out of a base desire to kill, or does so because, in the midst of a psychotic episode, he thinks the officer is a monster or a ghost, the danger to the officer is the same. The officer’s interest in protecting his own life and the lives of his fellows is therefore the same as well.”
Also on Monday, the majority affirmed Selna’s finding that the officers were entitled to qualified immunity because existing precedent hadn’t established that they acted unreasonably.
It reversed Selna’s Americans with Disabilities Act and the Rehabilitation Act findings, holding that the officers had the time to assess the situation and use accommodations like de-escalation, communication or specialized help to subdue Vos.
It also reversed Selna’s wrongful death and other state law findings.
Circuit Judge Mary Murguia joined Bea and Molloy on the panel.
Jason Fowler with the Parris Law Firm in Lancaster represents the Vos’. He did not return a request for comment.