Use of Taser on Suicidal Man Goes Before the 9th

     (CN) – The parents of a suicidal man who leapt to his death from a bridge after officers fired a Taser and charged him urged the 9th Circuit to revive their excessive force claim.
     Joshua Levy appeared to be contemplating suicide when officers encountered him on the side of a bridge that spans a rocky gorge in Spokane. Levy, who was 28 years old, threatened to jump when officers approached and a 20-hour standoff ensued, according to the civil complaint. Officers attempted to take Levy into custody first by shooting a Taser, which missed, and then charging him, which prompted Levy’s jump to his death, the complaint says.
     Levy’s parents, Susan Levy and David Breidenbach, said police officials devised a plan to lure Levy to a portico on the bridge, where it would be safer to apprehend him, but the officers disregarded orders and rushed Levy as he stood outside the bridge’s railing. They filed suit against three of the officers involved, and the city and county of Spokane, for excessive force in violation of civil rights law.
     U.S. District Judge Edward Shea dismissed the suit on summary judgment, finding the officers did not violate Levy’s Fourth Amendment rights and were entitled to qualified immunity. Shea said the police were faced with “an extremely delicate situation” when they confronted Levy.
     “In the split-second that the officers realized that the Taser had not immobilized Mr. Levy, they reacted by continuing and/or initiating a rush toward Mr. Levy,” the order states. “Any reasonable officer would believe this reaction constituted a reasonable use of force under the circumstances.”
     Jeffry Finer argued for Levy’s parents before a 9th Circuit appellate panel in Seattle last week, saying the officers were incompetent not entitled to immunity. Finer said officers lose qualified immunity if they show incompetence and a “willful, knowing violation of established law.”
     Judge Milan Smith asked: “How did the officers know that what they did was unconstitutional?”
     Finer replied that the commanding lieutenant told the officers that “it was too dangerous” to try to capture Levy if he was outside the portico. “This was a rescue or a death, one or the other,” Finer said. Despite that, the officers continued with the plan after the Taser missed Levy, and he went back outside the bridge railing.
     Smith wanted to know if that made the officers “incompetent for purposes of removing qualified immunity.”
     Finer said it did, but Smith kept up the line of questioning.
     “Is lack of reasonableness incompetence?”
     Finer said it was incompetent when the officers knew the dangers and had been told only to proceed if Levy was in a safe position.
     Smith asked Finer what his best case was to prove the officers were not entitled to immunity.
     Finer paused and said, “With these facts, there’s no case.”
     Although he conceded the lack of precedent, Finer continued to argue that there was “no question” that the officers here were incompetent. “Jumping the gun, shooting at this man when he was not in the portico,” was “plainly incompetent,” Finer said.
     Smith was still not convinced.
     “There’s no argument that these officers were trying to kill this gentlemen,” Smith said. “They were trying to help him. You claim they didn’t do it right.”
     Smith wanted to know if Finer was comparing the officers’ actions to “outrageous use of physical force that we get in some of these police cases.”
     Finer said this was a different situation, but the police were still at fault.
     Heather Yakely, representing the officers and Spokane, said that nothing the officers did would remove their qualified immunity. She said the criteria are whether the actions are “reasonable.”
     “It doesn’t have to be a perfect plan,” she said. “Unfortunately, this plan was as good as they could come up with.”
     Yakely told the panel that the plaintiffs were ignoring the fact that Levy had been up for over 30 hours before he entered into the 20-hour standoff, and was obviously tired and in danger of falling.
     Judge N.R. Smith asked Yakely if she would agree that he has to “measure the nature of the force against the interest of using the force” to determine if is reasonable.
     Yakely said she agreed.
     “We can argue that Mr. Levy was not an imminent threat to himself, but the imminence comes from the fact he had been there for 20 hours,” she said.
     Yakely said the plaintiffs were arguing “hindsight.”
     “He wasn’t just simply going to get down,” she said.

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