Ninth Circuit Won’t Let SF Police Officers Off in Killing

SAN FRANCISCO (CN) — The Ninth Circuit on Wednesday gave the family of a man with Schizophrenia whom San Francisco police shot to death in his home after he cut a guest with an X-Acto knife a second chance to hold the officers accountable.

In deciding whether Officers Timothy Ortiz and Austin Wilson have qualified immunity for killing Tony Bui, a three-judge panel found that they do not have it on the Bui family’s excessive force claim, but they do have it on its Fourteenth Amendment familial interference claim.

A jury could conclude that the officers acted unreasonably when they shot Bui, and that it was unclear whether they had reasonable grounds to think Bui could kill or seriously injure them as he slowly approached them with the 1-inch blade in his hand, the panel wrote in the unsigned, unpublished memorandum.

“Deadly force is not appropriate simply because a suspect is armed,” according to U.S. Circuit Judges Ronald Gould and Marsha Berzon and U.S. District Judge William Sessions III, sitting by designation from Vermont.

Ortiz and Wilson killed Bui on Dec. 29, 2010, as his niece was entertaining about 15 other teenagers at the family home.

Startled by a slammed door, according to one of the family’s briefs, Bui “scratched” one his niece’s guests with an X-Acto knife.

Bui’s family says the cut hardly needed a Band-Aid, but his niece called 911, following her mother’s orders, so that Bui could receive medical attention.

City attorneys paint the situation as more serious, saying Bui had demonstrated he was dangerous by having already “stabbed” the teen just an inch from her spinal cord.

U.S. Magistrate Judge Laurel Beeler refused in 2014 to grant immunity to Ortiz and Wilson or to dismiss the family’s wrongful death claim against San Francisco, prompting San Francisco to appeal.

On Wednesday the panel wrote that Bui was holding the X-Acto knife at his side when he was shot, and had not brandished it at Ortiz and Wilson.

Moreover, the judges said, Bui had assumed a “cringing, fearful posture as he shuffled slowly” toward the officers after they ordered him out of the bathroom, and was turning away from them when they shot him. The officers also did not warn Bui that they would shoot if he did not drop the knife.

“A reasonable jury could conclude that the relatively slight and somewhat impaired Bui, who made no threatening motions with the small blade in the officers’ presence, did not present a significant threat of death or serious physical injury,” the panel wrote.

Bui’s family says officers had no reason to perceive him as a threat. Bui was physically slight, 5-foot-6 and 135 pounds, and the medication he took for his schizophrenia left him with tardive dyskinesia, causing him to shuffle slowly.

The family blames the officers for escalating the situation with shouts that agitated and confused Bui.

Andy Schwartz, the family’s attorney, said he was pleased with the ruling.

“This has been going on for quite some time,” Schwartz said in an interview. “We’re glad we got this aspect of it resolved in our favor.”

At a September 2016 hearing, Deputy City Attorney Christine Van Aken told the panel that Ortiz and Wilson believed it was reasonable to use lethal force, as Bui had failed to comply with their command to drop the knife.
Van Aken said it was not until three years after Bui’s death that the Ninth Circuit established in Hayes v. County of San Diego that deadly force was not reasonable in such a situation.

The Ninth Circuit didn’t buy that argument. It found that “it was clearly established as of December 2010 that officers ‘may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed,’ including in some circumstances in which the suspect has ‘committed a violent crime in the immediate past.’”

Citing the Ninth Circuit rulings in Curnow v. Ridgecrest Police (1991) and Harris v. Roderick (1997), the panel said it should have been clear to Ortiz and Wilson that it was unreasonable to shoot Bui because they knew he was mentally ill and had not seriously injured the girl. Moreover, he had not threatened them during the altercation.

“A warning may well have been feasible in light of the slow pace at which Bui was moving,” the panel wrote.

However, the judges found that Ortiz and Wilson are entitled to immunity on the Fourteenth Amendment familial interference claim, because there is not enough evidence to prove that they acted with conscious or reckless disregard by shooting Bui.

Schwartz said he was not concerned about that aspect of the ruling.

“I’m confident that if it has any impact at all, the impact will be minimal,” he said.

The San Francisco City Attorney’s Office did not return a call seeking comment Wednesday.

Dan Siegel, a civil rights attorney with Siegel & Yee in Oakland, agreed with Schwartz’s assessment in an interview.

“Since the plaintiffs can proceed on the excessive force claim, the family interference claim is not that critical,” Siegel said.

“They basically had two claims, which are largely overlapping in terms of remedies that are available. On the excessive force claim, they can recover damages for use of excessive force and damages to compensate the family members.” He added that if the family prevails, they should “be able to recover all damages, even if the family interference claim isn’t left there.”

The panel also found it had no jurisdiction to review Magistrate Judge Beeler’s ruling on the family’s state wrongful death claim, which Beeler refused to dismiss.

“From the plaintiffs’ point of view, it’s a good ruling,” Siegel said. “The courts have been, in my opinion, going overboard in terms of finding qualified immunity, so this is a decision which is somewhat contrary to that trend. I think plaintiffs in this case and plaintiffs in civil rights [cases] more generally will be reasonably happy with this decision.”

Schwartz is with Casper, Meadows, Schwartz & Cook, of Walnut Creek.

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