Shooting Armed Man May Leave Cops Liable

PASADENA, Calif. (CN) - A widow can pursue claims that sheriff's deputies shot her husband while he was standing on his patio with a gun and a walker, the 9th Circuit ruled.

Santa Barbara Sheriff's Deputies Jarrett Morris, Joseph Schmidt and Jeremy Rogers fatally shot 64-year-old Donald George shortly after 8 a.m. on March 6, 2009.

His wife, Carol Ann George, says it all started when she got up early that morning to fix a snack for Donald, who had brain cancer and "ate frequently to manage headaches," according to the ruling, which relies on Carol's version of events.

After Carol went back to bed, Donald came upstairs and took the keys to their truck. Carol followed him out of concern for his safety, and saw him get a pistol from the truck and load it.

She called 911 on her cellphone and told the Ventura California Highway Patrol that her husband had a gun. Donald made her hang up, but the operator called a Santa Barbara 911 dispatcher, who called Carol back, got her address and sent the three deputies to her house.

George told the deputies that her husband was on the patio with his gun. Soon after the deputies established a perimeter, Donald came outside on the second-story balcony with his walker and a gun. Schmidt, who allegedly saw Donald first, "identified himself as law enforcement and instructed Donald to show him his hands," the ruling states.

The deputies opened fire soon after broadcasting that Donald had a gun. They fired approximately 9 shots at him, then ran to help him and called an ambulance. Despite their efforts to give first aid, Donald died two hours later at the hospital.

Whether Donald ever manipulated the gun or pointed it directly at the deputies is a matter of contention.

George filed excessive force claims against the deputies a year later and unreasonable seizure claims against Deputy Harry Hudley, saying he barred her from the scene after the shooting and briefly refused to let her see Donald in the hospital.

A federal judge refused to grant the deputies immunity after finding that Donald did not pose a threat to them. The court nevertheless dismissed George's seizure claims finding no violation of her rights. Both parties appealed.

The 9th Circuit unanimously rejected Carol's cross-appeal Tuesday, but was divided 2-1 as to affirming denial of immunity for the sheriffs.

The majority disagreed with the deputies that Carol could not prove at trial that Donald never pointed his gun at them.

"While the deputies certainly aver feeling threatened before they shot [Donald] George, such a statement 'is not enough; there must be objective factors to justify such a concern,'" Judge Diarmuid O'Scannlain wrote for the court, quoting its 2007 ruling in Long v. City and County of Honolulu.

Even if Donald had aimed his gun at them, law-enforcement officers cannot shoot someone simply because the person has a weapon, the majority noted.

"If the person is armed - or reasonably suspected of being armed - a furtive movement, harrowing gesture, or serious verbal threat might create an immediate threat," O'Scannlain wrote. "On this interlocutory appeal, though, we can neither credit the deputies' testimony that Donald turned and pointed his gun at them, nor assume that he took other actions that would have been objectively threatening."

"If the deputies indeed shot the sixty-four-year-old decedent without objective provocation while he used his walker, with his gun trained on the ground, then a reasonable jury could determine that they violated the Fourth Amendment," he added.

Judge Stephen Trott wrote a lengthy dissent against the court's refusal to grant the deputies immunity, saying Donald did pose a threat to the deputies. The officers acted reasonably and within the bounds of the law when they shot him, he added.

"I suppose pursuant to the irrelevant and immaterial idea in the abstract that Mr. George's possession of the gun was lawful and that he had not committed a crime, we could say the same about John Hinkley before he shot President Reagan, Jared Loughner before he gunned down United States District Judge John Roll and United States Representative Gabrielle Giffords, Adam Lanza before the Sandy Hook massacre, and James Holmes before the Aurora Colorado slaughter," Trott wrote. "Mr. George certainly wasn't in their category, but armed people who are combative, furious, angry, and mentally unstable - whatever the reason - are dangerous, period. When we send law enforcement out to cope with them, it is wrong to proclaim that the personnel doing so are not in danger. And ... we must consider that these deputies were responding and reacting to a 'tense, uncertain, and rapidly evolving' situation requiring them to make split second decisions involving - in this case - life and death."

Instead of relying on the deputies' testimony, which is corroborated by several witnesses at the scene, the District Court and the appellate majority chose to believe a "self-serving declaration from Mr. George's wife who did not see the shooting," disputed facts that were irrelevant to the situation, and "inadmissible speculation" from an ex-FBI agent who also was not at the scene, according to the dissent.

"These are life and death situations," Trott wrote. "Focusing on inconsequential details out of context distorts the totality of the facts and leads one to errant conclusions. No reasonable factfinder could conclude on this record that the disputed use of force was unreasonable or excessive."

He urged the court to grant the deputies summary judgment based on qualified immunity, saying that "to do otherwise is not fair to the sheriffs."

Stephen Dunkle with Sanger Swysen & Dunkle of Santa Barbara represents the widow.

The defendants are Deputy Jarrett Morris, Deputy Joseph Schmidt, Deputy Jeremy Rogers, Deputy Harry Hudley, Deputy Larry Hess and Santa Barbara County.

They were represented by Michael Maury Youngdahl and his co-counsel Kelly Duncan Scott, who filed the briefs.

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