Police, The Fourth Amendment, Qualified Immunity

Dissent suggests that CHP Officer Chris McGuire might be lying to cover bad shoot

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Case: Bowles v. CITY OF PORTERVILLE, Court of Appeals, 9th Circuit 2014

Quote from Dissenting Opinion by Judge Korman:

[T]he holding of the majority that summary judgment is appropriate in this case is impossible to justify. Office McGuire bore the burden of proof. The facts relating to the shooting were peculiarly within his knowledge and the jury was not compelled to accept and believe his self-serving testimony that is implausible on its face. Officer McGuire testified that, during the course of the chase, Bowles stopped twice. When he stopped the first time and faced Officer McGuire, the latter ordered him to get on the ground. ER 421. At that moment, when they were approximately five feet apart, Officer McGuire “could just tell that [Bowles] had items in both of his front pockets, but [he] did not know what these items were.” ER 421. Officer McGuire then drew his weapon and again ordered Bowles to get to the ground. ER 415. The chase resumed when “shortly after that Mr. Bowles started running away again.” ER 412.

According to Officer McGuire, it was at this point when Bowles stopped and turned that he saw “a metallic cylinder object in his hands,” which led Officer McGuire to believe that Bowles had a weapon. ER 413. When asked how the object was positioned in Bowles’s hands, Officer McGuire answered that “[h]e had his, both his left and right hand coupled together extended out in front of him, with his elbow slightly bent, and the metallic object was protruding from within his hands as he had them cupped together.” ER 414. The object which Officer McGuire testified he saw in Bowles’s hands, and which led to the shot that killed him, was a cologne bottle. In order to credit Officer McGuire’s testimony, a jury would have to believe that after stopping, Bowles removed a cologne bottle from one of his front pockets and pointed it at a police officer who had his gun drawn and was no more than ten feet away. While the majority has apparently seen fit to credit this improbable tale, a jury could decide otherwise.

I recognize that there is a phenomenon known as “suicide by cop,” a term which has been defined in different ways and which could explain such otherwise inexplicable behavior by the victim. The American College of Emergency Physicians defines it as “an incident where a suicidal individual intentionally engages in life-threatening and criminal behavior with a lethal weapon [or what appears to be such a weapon] toward law enforcement officers or civilians specifically to provoke officers to shoot the suicidal individual in self-defense or to protect civilians.” H. Range Huston, M.D., et al., Suicide by Cop, 32 Annals of Emergency Med. 6 (1998) (quoted in Anthony J. Pinizzotto et al., Suicide by Cop: Defining a Devastating Dilemma, 74 FBI L. Enforcement Bull. 2, 9 (2005)). In Boyd v. City and County of San Francisco, 576 F.3d 938 (9th Cir. 2009), we upheld the admissibility of expert testimony regarding “suicide by cop” in the context of that particular case. No evidence of this kind was offered in support of the defendants’ motion for summary judgment. Nor was any evidence offered of the kind necessary to show that Bowles was a “suicidal individual.” See Pinizzotto et al., supra, at 12-14.

More significantly, there is other compelling circumstantial evidence that calls into question Officer McGuire’s version of the events, and from which a jury could reasonably conclude that Bowles was shot when he was already moving down towards the ground. Bowles was taller than Officer McGuire, ER 110, and Officer McGuire testified that Bowles was standing on a sidewalk that was elevated above Officer McGuire’s position on the parking lot at the time of the shooting. ER 450. Nevertheless, Jesse Worbock, Ph.D, a forensic biomechanics expert, offered the opinion, in the form of an affidavit, that the bullet that entered Bowles’s body did so at a downward trajectory. This indicated to Dr. Worbock that “Bowles was not standing erect at the time he was shot. Instead, Mr. Bowles’s body was already down, or moving down toward the ground when he was shot.” ER 110; see also ER 111 (“it is my expert opinion that the incident did not occur in the manner described by Officer McGuire to the extent that Bowles was not standing at the moment he was shot, based on the downward trajectory of the bullet, and was likely falling down or kneeling.”). This expert opinion contradicts Officer McGuire’s uncorroborated testimony that Bowles had stopped and had just begun to spin to his left with his arms extended when he was shot. ER 413-14. Cf. Ting v. U.S., 927 F.2d 1504, 1510 (9th Cir. 1991) (genuine issues of material fact existed regarding circumstances of the shooting based on testimony of ballistics expert).

Nevertheless and quite remarkably, the only answer the majority offers for this competent and otherwise uncontroverted expert opinion is that “[i]t is pure speculation to suggest that Bowles was attempting to lie down as previously ordered by the officers.” See Majority at 7. And, even if Bowles was in a crouching position when he was shot, “there is no suggestion that crouching was inconsistent with preparing to fire a gun.” Id. But, as I have observed above, if Bowles was crouching when he was shot, then it totally undermines Officer McGuire’s narrative of how the shooting occurred.

This is not the only circumstantial evidence that a jury could conclude undermines Officer McGuire’s testimony. Office McGuire testified that, “[a]fter the first shot was fired, [Bowles] immediately, as he was spinning, threw his hands up in the air, and the [cologne] bottle flew from his hands, it went up into the air, and then landed in the dirt next to him.” ER 430-31. The dirt was in a flowerbed alongside the place where Bowles had been standing. ER 431. Officer McGuire admitted that he picked up the cologne bottle without wearing gloves and placed it near Bowles’s left hand. ER 295, 431-32, 435, 447. In doing so, he acted contrary to the policy of the Police Department of the City of Porterville by not leaving physical evidence in place and using gloves to avoid contaminating evidence with fingerprints. ER 235-36, 260, 380. While Office McGuire testified that he moved the cologne bottle because he “didn’t want the item to be lost or misplaced, or somebody not to know what it was,” ER 431-32, plaintiffs suggest that he threw the cologne bottle into the flowerbed, retrieved it, and placed it next to Bowles to explain the fingerprints he left on the bottle while removing it from Bowles’s pockets. Indeed, at one point in his testimony, Officer McGuire admitted that after he initially picked up the cologne bottle he threw it further into the flowerbed and then picked it up again after he finished searching Bowles. ER 435. The majority observes that “the evidence shows that Bowles was responsible for the presence of the cologne bottle.” See Majority at 7. Plaintiffs, however, do not argue that Bowles had not been carrying two cologne bottles. Rather, they argue that the cologne bottles were in Bowles’s pockets at the time of the shooting. This is the basic issue that the jury should be free to resolve on this record.

The only legal reason the majority gives for arguing otherwise is that “[t]he doctrine of qualified immunity would be seriously compromised if the possibility of jury disbelief were sufficient to deny an officer qualified immunity.” See Majority at 4. The majority cites no case for this extraordinary proposition, which significantly departs from the Ninth Circuit precedent cited earlier, holding that “a trier of fact is not compelled to accept and believe the self serving stories of vitally interested defendants,” United States v. Cisneros, 448 F.2d 298, 306 (9th Cir. 1971), and that where their stories are “implausible-disbelief of testimony on a certain point can support the truth of what the witness denies.” United States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974).

The only concession the Supreme Court has made to the normal rules that apply in such cases is that it permits an appeal solely from an order denying qualified immunity on purely legal grounds. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). An appeal would not lie from a denial of summary judgment based on a determination by a trial judge that there is an issue of fact for the jury to resolve on the issue of qualified immunity even though that would force a law enforcement officer to go to trial. Johnson v. Jones, 515 U.S. 304, 317 (1995); Ram v. Rubin, 118 F.3d 1306 (9th Cir. 1997). Indeed, in this case, concern about “compromising” the doctrine of qualified immunity did not prevent full pretrial discovery that included taking the deposition of Office McGuire. Moreover, as I have demonstrated, the totally implausible explanation for the events that triggered the death of Bowles and the compelling circumstantial evidence hardly make this case an appropriate one for creating an unsupported and unjustified exception to the normal rules that govern the consideration of a motion for summary judgment. If Officer McGuire should prevail on a defense of qualified immunity, then that judgment must be made by a jury.

I conclude with where I began, with the words from Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994). In a case such as this, “the court may not simply accept what may be a self-serving account by the police officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer’s story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.” Id. at 915 (internal citations omitted). I dissent because, unlike the majority, I believe that the evidence in this case could convince a rational factfinder that the officer acted unreasonably.

Written by Burgers Allday

April 30, 2014 at 3:08 am

Posted in Uncategorized

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