(CN) — A Ninth Circuit panel in Seattle on Tuesday began considering whether qualified immunity was appropriate in a tragic case involving an armed standoff between police and a Naval officer.
The underlying lawsuit was brought by another Navy officer who said he was left injured, and his shipmate dead, because police lied to him as he tried to defuse the situation. The Ninth Circuit judges on Tuesday probed the details of by the bizarre case but gave few hints of how they might ultimately rule.
In 2017, authorities in Island County, Washington, responded to an incident at a private home. Resident Nicholas Perkins, a Navy sailor, had been drinking and was armed, barricaded and "apparently suicidal," according to a lawsuit filed later by his shipmate Heath Garcia.
Garcia, who knew Perkins from the Navy, heard about the incident and went to offer assistance to the responding officers. Those officers, including Deputy Robert Mirabal and Lieutenant Michael Hawley, allowed Garcia to enter the home without fully understanding the gravity of the situation, Garcia alleged in his later lawsuit.
Once Garcia arrived, the situation quickly deteriorated. Garcia alleges that Hawley, the incident commander, promised to call off his officers if Perkins agreed to come out and go to the hospital.
After Garcia coaxed Perkins out of his home, though, Perkins saw officers still lying in wait and retreated, arming himself with a shotgun before returning outside. A scuffle ensued — and by the time it was over, Hawley had fatally shot Perkins, and Garcia had been shot in the foot and permanently injured by an unknown person.
Garcia filed suit in 2020 in federal court in Washington, alleging a range of claims, including unreasonable seizure and negligence.
His main claim, though, was an obscure one. He argued authorities had incited a "state-created danger" by allowing him to assist untrained — an action he argues is a result of Island County’s decision to not “properly train and supervise officers” after eliminating its SWAT team in 2010.
The case wound through the court system for years before ending up in the Ninth Circuit. In 2022, U.S. District Judge Thomas Zilly, a Reagan-appointed federal judge in Seattle, dismissed a claim against Island County but refused to drop claims against the officers involved, including for state-created danger.
In his order, Zilly argued officers had characterized the risk to Garcia as "voluntarily assumed" by him when in fact the bizarre situation — in which a third-party citizen found himself in the middle of an armed standoff — seemed to have been "affirmatively created" by authorities.
Had Garcia known Hawley didn't intend to stand down as agreed, Zilly argued, Garcia would never have tried to assist. He argued that Mirabal's alleged failure to activate the trigger safety on his shotgun also created "obvious danger that Garcia would not have otherwise faced."
The officers appealed in 2022, arguing that since no established law put the officers on notice, they are entitled to qualified immunity.
John Justice, a lawyer for the officers, expanded on this argument before the Ninth Circuit on Tuesday, claiming officers had never made any promises to protect Garcia or Perkins. U.S. Senior Circuit Judge Susan Graber, a Clinton appointee, cast doubt with Justice's version of events.
Much of the judges' questioning on Tuesday focused on what if anything was promised to Garcia, what level of risk Garcia assumed himself and to what extent Garcia was operating under the command of authorities at the time of the incident.
In other words: untangling the basic, underlying facts of the case.
When Garcia watched Perkins angrily procure his gun right before the scuffle but nonetheless decided to grab him, "he at that point creates the danger that led to his injury," Justice told the court. U.S. Circuit Judge Michelle Friedland, an Obama appointee, pushed back.
"Isn’t that a factual question for the jury?” she asked.
The judges also questioned Tim Ford, Garcia's attorney, about the arguments behind his lawsuit — including whether relevant law was clearly established at the time of the incident in 2017. Ford continued to stress that the circumstances of the case met the threshold for "deliberate indifference."
The court also debated to what extent authorities should have prevented Garcia from remaining in the middle of the scene, especially as the situation deteriorated. Ford argued authorities had given Garcia "encouragement" to stay involved in the incident— but when Friedland pushed back on this, Ford stressed that at the very least, "I think they should have told him no. They should have said, you can't do that."
Ford characterized his client as an untrained citizen who was simply doing his best to prevent the loss of life in a tense and complex situation. Justice, meanwhile, continued to downplay any promises that were allegedly made to Garcia. Before the Ninth Circuit can fully weigh the legal issues of the case, they will first have to untangle what exactly happened in the scuffle that left Garcia maimed and another man dead.
Follow @alannamayhampdx
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
