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Zion v. County of Orange

United States Court of Appeals, Ninth Circuit

November 1, 2017

Kimberly J. Zion, individually and as successor in interest to Connor Zion, Plaintiff-Appellant,
v.
County of Orange; Michael Higgins, Defendants-Appellees.

          Submitted June 6, 2017

         Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding D.C. No. 8:14-cv-01134-JVS-RNB

          Jerry L. Steering (argued) and Brenton W. Aitken Hands, Law Office of Jerry L. Steering, Newport Beach, California, for Plaintiff-Appellant.

          Lann G. McIntyre (argued), Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; Greg Ryan, Matthew P. Harrison, and Dana Alden Fox, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, California; for Defendants-Appellees.

          Before: Stephen Reinhardt and Alex Kozinski, Circuit Judges, and Terrence Berg, [*] District Judge.

         SUMMARY[**]

         Civil Rights

         The panel affirmed in part and reversed in part the district court's summary judgment and remanded in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that a County of Orange police officer used excessive deadly force when he shot Connor Zion and killed him.

         County of Orange police officer Michael Higgins fired nine rounds at Zion after witnessing him stab a fellow officer in the arms with a knife and run away. Police video footage showed that after Zion fell to the ground, Higgins ran towards the body and fired nine more rounds from a distance of about four feet. While Zion was still moving on the ground in fetal position, Higgins stomped on Zion's head three times.

         Addressing the Fourth Amendment excessive force claim, the panel held that if a suspect is on the ground and appears wounded, he may no longer pose a threat. A reasonable officer would then reassess the situation rather than continue shooting. This is particularly true when the suspect wields a knife rather than a firearm. The panel held that in this case, a jury could reasonably conclude that Higgins could have sufficiently protected himself and others after Zion fell by pointing his gun at Zion and pulling the trigger only if Zion attempted to flee or attack. Although Higgins testified that Zion was trying to get up, the panel determined that in light of the video footage to the contrary, the issue of whether Zion attempted to flee or attack involved a dispute of fact that had to be resolved by a jury. The panel held that if a jury determined that Zion no longer posed an immediate threat, any deadly force Higgins used after that time violated long-settled Fourth Amendment law. Higgins would therefore have been on notice that his conduct was unlawful and defendants would not be entitled to qualified immunity.

         Addressing the Fourteenth Amendment due process claim, the panel held that Higgins didn't violate the Fourteenth Amendment by emptying his weapon at Zion because whether excessive or not, the shootings served the legitimate purpose of stopping a dangerous suspect. The panel held that the head stomps were different. The panel held that like forced stomach-pumping, head-stomping a suspect curled up in the fetal position is bound to offend even hardened sensibilities. The panel held that a jury could reasonably find that Higgins knew or easily could have determined that he had already rendered Zion harmless. If so, a reasonable jury could also conclude that Higgins was acting out of anger or emotion rather than any legitimate law enforcement purpose.

         The panel affirmed the district court's summary judgment on plaintiff's municipal liability claims under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) because plaintiff admitted in the district court that they lacked merit. The panel remanded plaintiff's remaining claims to the district court to consider in the first instance.

          OPINION

          KOZINSKI, Circuit Judge:

         When police confront a suspect who poses an immediate threat, they may use deadly force against him. But they must stop using deadly force when the suspect no longer poses a threat. We ...


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