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Police liability in 2017 mass shooting probed by Ninth Circuit

"How would they possibly know that he would start shooting people he didn't know?" a Ninth Circuit judge asked.

SAN FRANCISCO (CN) — Six years after a mass shooting in Northern California that left five dead and 18 injured, a Ninth Circuit panel on Thursday explored the broad responsibilities of law enforcement to prevent it and other mass shootings from happening in the first place.

After initially advancing claims brought the victims and family of shooter Kevin Neal that the Tehama County Sheriff's Office is responsible for not preventing the shooting from the beginning, a federal judge in the Eastern District of California dismissed the case. The plaintiffs appealed.

The facts surrounding the case are harrowing: The morning after he murdered and dumped his wife’s body under their mobile home, Neal killed two neighbors, stole their truck and headed toward a nearby elementary school. On the way, Neal fired indiscriminately while driving through Rancho Tehama Reserve, an unincorporated community approximately 135 miles north of Sacramento, killing two more people.

The 44-year-old gunman opened fire on seven different sites — including an elementary school — before he ended the shootout with law enforcement by shooting himself in the head from the driver’s seat.

In their lawsuits filed after the mass shooting, the plaintiffs claim the sheriff's department knew Neal was shooting guns from his property and should have obtained a search warrant. They say spent ammunition littered Neal’s property and that neighbors even complained about gunshots just three weeks before the mass shooting.

The sweeping lawsuits, which had been combined, accused the county, the department and Neal’s estate of over 20 total claims, including failure to enforce the restraining order, negligent training, failure to provide speedy medical care to shooting victims and public nuisance.

Instead of confiscating the weapons or arresting Neal, the victims contend the department reacted with incompetence.

But on Thursday, a three-judge Ninth Circuit panel expressed concern that allowing the case to go forward may open law enforcement up to more liability.

"This is a very, very high level of abstraction that will leave police liable to almost anything," U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, said. "How would they possibly know that he would start shooting people he didn't know?" 

The plaintiffs' attorney Harini Raghupathi, with Singleton Schreiber, told the panel Neal's escalation of behavior over a year went from backyard target practice to a lawn full of shell cases and "firing hundreds of rounds at a time," then shooting at his neighbors and eventually stabbing one. In the weeks leading up to the mass shooting, Neal's own family called law enforcement, worried that Neal was unstable and in possession of multiple weapons. 

The plaintiffs claim in their 137-page brief that Assistant Sheriff Phil Johnston is a "fierce defender of gun rights" and flat out refused to enforce red-flag orders and intentionally underserved the Rancho Tehama community. Bybee didn't appear to buy the argument.

"I saw a general allegation that the police didn't like this particular community, but I haven't seen anything that suggests that they enforced them a lot differently in a city 10 miles up the road," Bybee said,

Arguing for the sheriff's department, attorney Jonz Norine worked to poke holes in the plaintiffs' narrative. But U.S. Circuit Judge M. Margaret McKeown had a probing question for Norine.

"What's your what's your response to the allegation that officers told them that he can own and discharge firearms in the community?" the Bill Clinton appointee asked.

Norine answered it didn't "sound plausible" despite a recording where a sheriff's officer supposedly permitted Neal to continue his erratic behavior. Norine continued to try to tear down the validity of the plaintiffs' record of events, which the panel said was pointless at this stage and would be fleshed out in a future trial if they revive the lawsuit. 

"If you have any more questions, I'm happy to be your punching bag," Norine said after nearly 20 minutes of back-and-forth with the panel, which also included Donald Trump appointee Patrick Bumatay. The judges did not indicate how or when they will rule. 

Neither Raghupathi nor Norine responded to requests for comment by press time. 

Categories:Appeals, Civil Rights, Government

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