SAN DIEGO (CN) — Finding that an officer's shooting of an unarmed man may constitute unreasonable deadly force, a Ninth Circuit panel ruled this week that officer must face a wrongful-death lawsuit.
San Diego Police Officer Kristopher Walb appealed a decision by U.S. District Judge Gonzalo Curiel that partly denied summary judgment on the basis of qualified immunity.
The three-judge panel of Circuit Judges Richard Tallman and Morgan Christen, and Barrington Parker sitting by designation from the Second Circuit, found there was a genuine dispute of material fact as to whether Walb violated the Fourth Amendment.
The panel found when viewing the facts in a light most favorable to Angel Lopez, who was shot and killed by Walb, a reasonable jury could conclude from physical evidence that "Lopez was not facing the officers, did not make a threatening gesture and was in the process of complying with the officers' commands to get down when he was shot."
The per curiam memorandum, issued Oct. 25, continued, "Under those circumstances, Walb's decision to shoot Lopez would constitute an unreasonable use of deadly force in violation of the Fourth Amendment."
Walb shot and killed Lopez during a botched SWAT operation in January 2013 after a vengeful heroin dealer told officers that Lopez was a cartel member who had held the dealer hostage, according to court documents. Police apparently did not vet Alec Pojas' claims and sent a machine gun-wielding SWAT team to Lopez's apartment complex where he was ambushed in the parking lot.
Lopez ran back into the apartment building, followed by Walb. The officer shot Lopez twice in the back and once in the head with a machine gun though Lopez complied with the officers' orders, according to the complaint.
The 2013 civil case was stayed pending Walb's appeal to the Ninth Circuit. It was originally on track to go to trial in 2015.
Another lawsuit filed in 2015 by Lopez's widow Lydia Lopez was dismissed earlier this year. Neither Walb nor the city of San Diego were parties to that lawsuit, which named Pojas, parole agent Lou Torres, San Diego Police Capt. Andrew Mills and Lt. Alberto Leos and Sgt. Scott Holslag, also with the SDPD.
There have been four separate lawsuits filed arising out of the same incident and set of facts.
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