(CN) — An appeals panel seemed unlikely Wednesday to revive a lawsuit against three sheriff’s deputies, challenging the position on deadly force from the family of a man who was shot and killed as he walked toward police with a gun at his side.
The case stems from a 2018 emergency call to a home in Mesa, Arizona, one winter morning. Lisa Yearick told the emergency dispatcher that her husband, Edward Rudham, was threatening to kill himself with a handgun. He had battled depression for years and had recently lost his job, according to court documents.
Though Rudham reportedly told Yearick that he wouldn’t hurt her, Yearick locked herself in a closet as Maricopa County sheriff’s deputies arrived, parking their cars at the bottom of the driveway about 100 feet from the house. Rudham exited the house with the handgun dangling at his side in his right hand — his nondominant hand, according to court documents.
Deputies ordered Rudham to stop moving and drop the gun multiple times, and Rudham replied to each request with “no,” “I can’t do that,” and similar phrases. Police reports indicate Rudham was attempting suicide by cop.
After Rudham advanced about 40 feet over 24 seconds, three deputies shot a total of seven rounds nearly simultaneously, striking Rudham in the head and multiple times in the torso. He died in the hospital from his wounds.
A year later, Yearick and Leigha Huber, Rudham’s mother, sued the three deputies and Maricopa County, which was later replaced as a defendant by the sheriff’s office, for unreasonable use of force under the Fourth Amendment and wrongful death under Arizona law.
The case was transferred to federal court in March 2020, and a federal judge ruled in favor of the defendants in August 2022, writing that the use of force was “not objectively unreasonable.”
On appeal at the Ninth Circuit in San Francisco, Yearick and Huber's attorney Larry Wulkan asked the three-judge panel to reverse the lower court’s decision.
“The mere fact that a suspect has a weapon doesn't in and of itself justify the use of lethal force,” Wulkan told the panel. He said to justify a lethal response, a subject would have to make a “furtive motion, harrowing gesture, or serious verbal threat” to the deputies.
“There was absolutely no indication that he was swinging his gun erratically or at a 90-degree angle,” he said.
But the judges seemed skeptical. Aside from raising a gun, they asked Wulkan what indicator the officers should have waited for before using deadly force to defend themselves.
“Why isn't walking toward the officers enough to be a furtive act?” U.S. Circuit Judge Holly Thomas, a Biden appointee, asked. U.S. Circuit Judge Mark Bennett, a Trump appointee, wondered whether advancing and refusing to stop is sufficient.
“I don’t think it is, given the context they knew going into the call,” Wulkan replied. Because dispatch was already suspicious that Rudham intended to attempt suicide by cop, he said the deputies should have been more cautious and attempted to talk with him or use nonlethal force rather than giving orders and shooting.
“Time is on their side,” Wulkan said.
U.S. Circuit Judge Sidney Thomas, a Clinton appointee, cut in. “Unless they’re shot and killed. Then time isn’t on their side,” he said.
Wulkan maintained that the deputies should have waited for a direct verbal threat or a more direct action before deciding to fire.
But Sean Moore, attorney for the Maricopa County Sheriff’s office, said Wulkan focused too much on the “pure syntax” of federal law, taking “furtive motion or harrowing act” too literally.
“There does not need to be a herky-jerky motion,” he told the judges. “The guy doesn’t have to jump out of a bush or something.
“It’s obvious that the actions Mr. Rudham took did present that level of threat.”
Because handguns are more effective at close range, Moore said the danger Rudham presented to the deputies increased with every step he took. He pointed to their “simultaneity of action” as evidence that the shooting was justified, as each of the three “independently concluded that lethal force was necessary.”
While the judges seemed to be sure about ruling for defendants in the Fourth Amendment claim, Bennett said ruling for defendants on the state wrongful death claim would require them to find the officers deserved qualified immunity, which requires a higher burden of proof. Because of this, he suggested remanding the wrongful death claim back to state court where it was initially filed.
Moore disagreed, arguing that both claims require the same findings, so the judges should rule the same on both.
It’s unclear when the panel will make a decision.
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