In a landmark ruling that going against the trend, the Ninth Circuit Court of Appeals holds that a police may terminate the threat but not the person.
By Tony Saavedra | tsaavedra@scng.com | Orange County Register
An Orange County Sheriff’s deputy who won the department’s medal of valor after shooting a knife-wielding, delusional man 18 times and repeatedly stomping on his head can be sued by the suspect’s mother, a federal appellate court ruled.
A 9th Circuit Court of Appeals panel Wednesday revived an excessive force suit against Deputy Michael Higgins, who was credited with saving the life of another deputy stabbed twice on the arm by suspect Connor Zion, 21. The suit was previously quashed by a lower court.
The three-justice panel, led by Alex Kozinski, said, “like forced stomach-pumping, head-stomping a suspect curled up in the fetal position is bound to offend even hardened sensibilities.”
A sheriff’s video of the September 2013 altercation showed the shooting and Higgins stomping three times on the fallen man’s head, something not taught or condoned in police training for use of force.
“I don’t believe anyone would tell you that kind of continuation of force is appropriate after having put a
suspect down with a firearm,” said Ron Lowenberg, dean of the police academy at Golden West College.
Larry Rosenthal, a law professor at Fowler School of Law at Chapman University, had a stronger reaction.
“If an officer who engages in wholly unjustifiable conduct gets a medal, it boggles my mind,” Rosenthal said. “Why has the Orange County Sheriff’s Department not disciplined this guy?”
In a prepared statement, the sheriff’s department said, “We stand by the District Attorney’s July 2014 investigation into this officer-involved shooting, which concluded Deputy Higgins did not commit a crime. According to their review, he used justifiable force and saved the life of a fellow deputy (Juan Lopez) and potentially prevented injuries to others.”
The district attorney’s report called Higgins’ actions, “reasonable and justified.”
Appellate justices, however, said the first volley of nine bullets, which left Zion alive, might have been enough to stop him from hurting anyone else. Higgins went on to stand over Zion, who was on the ground but still moving, and shoot him another nine times.
“A reasonable jury could find that Zion was no longer an immediate threat, and that Higgins should have held his fire unless and until Zion showed signs of danger or flight,” said the appellate ruling.
“Or, a jury could find that the second round of bullets was justified, but not the head-stomping.”
Attorney Jerry Steering, representing Zion’s mother, Kimberly, summed up the panel’s ruling, “An officer has the right to terminate the threat, but not terminate the person.”
According to court records, the district attorney’s investigation and two sheriff’s videos, Zion had a history of seizures and was apparently in the midst of one when he cut his roommate and mother with a 12-inch, serrated kitchen knife. The sheriff’s department was called to the Laguna Niguel condominium.
Deputy Lopez was among the first to arrive. Zion, yelling “I’ll kill you,” attacked the deputy as he was getting out of his patrol car, stabbing him twice on the arm. Lopez fell to the ground and kicked at Zion to keep him away.
The video captures Zion running back to the condominium with Higgins firing nine times from about 15 feet away. Zion can be seen on the ground, still stirring. Higgins walks up and unloads nine more bullets into Zion from about four feet away.
Higgins then stomps on Zion’s head, walks away, returns and stomps again on his head, walks away, and returns for a third stomp, the video shows.
“I thought it was a movie. It was surreal. And then training kicked in,” Higgins said in an April 2014 article in the Orange County Register.
An autopsy shows that Zion was hit 11 times and died from his gunshot wounds. Methamphetamine and amphetamine were found in his bloodstream, according to the district attorney’s investigation.
Zion’s criminal history showed numerous arrests for being under the influence of a controlled substance, threat to kill, malicious mischief, assault and possession of dangerous weapons.
A delusional Zion told his mother earlier in the day of the incident that he would die at the hands of police.
In court proceedings Steering told justices, “I’ve been doing these police misconduct cases for 33 years and this is the first case I can say that I’ve actually seen what appears to be a police execution.”
So, although the police can usually shoot people with relative impunity, at least now West of Utah, the police can terminate the threat but not the person. This is a major breakthrough in Fourth Amendment jurisprudence; a major victory for liberty in the Western states.
Jerry L. Steering