Ninth Circuit Remands Trooper Immunity Case

SAN FRANCISCO (CN) - The 9th Circuit required a stricter standard for determining whether an Alaskan trooper "shocked the conscience" by using deadly force on a man found sleeping in a supposedly abandoned vehicle.

A three-judge panel reversed denial of qualified immunity to trooper Arthur J. Osborn in a lawsuit brought by the parents of the man he shot and killed on a roadside in Alaska.

Osborn and fellow trooper Joseph Whittom encountered Casey Porter sleeping in the driver's seat of a car parked in a highway pull-out area. "In a rapidly escalating confrontation, the troopers shouted at a startled and confused Casey to get out of his car," Judge Fisher summarized. "When he failed to comply, both troopers quickly exited their cars and drew their guns, with Osborn taking the lead in approaching the car to get case to comply.

"When Casey rolled down his window but did not move to get out, Osborn pepper sprayed him through the open window. Casey reacted in pain and began to drive the car slowly forward toward Whittom's patrol car, at which point Osborn fired five shots at Casey, killing him."

The district court had allowed the case to move forward, ruling that the parents presented enough evidence that Osborn's conduct shocked the conscience under a "deliberate indifference" standard of culpability. The judge dismissed all claims against Whittom.

However, the circuit court remanded with instructions to apply a "different and more demanding" standard of culpability.

"(I)n an urgent situation of the kind involved here," Fisher wrote, "the established standard is whether Osborn acted with a purpose to harm Casey without regard to legitimate law enforcement objectives."

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