(CN) — A Ninth Circuit panel denied qualified immunity Monday to a Mesa, Arizona, police officer who shot and killed a man during a 2018 traffic stop gone awry.
Heath Carroll shot 21-year-old Anthony Lopez nine times after he suddenly reversed his car into Carroll’s squad car during a routine stop in west Mesa. Lopez, who admittedly had been drinking that night, knocked Carroll down with his vehicle before hitting the squad car. Carroll said he opened fire because he believed his partner, Jena Thranum, was in danger of being run over by Lopez’s car.
Lopez’s parents sued the officer and the city of Mesa a year later, challenging whether Carroll actually believed his partner’s life was in danger, as the car was stationary by the time Carroll opened fire. Though a federal trial court ruled on summary judgment in favor of the defendants on most of the counts, it denied qualified immunity to Carroll on two counts of excessive force and violation of due process, and upheld a wrongful death count against the city of Mesa.
After hearing oral arguments in San Francisco just five days short of a year ago, a three-judge panel affirmed on Monday the trial court’s ruling in an 2-1 unpublished memorandum.
“Construing the facts in the light most favorable to plaintiffs, we conclude that every reasonable officer in Carroll’s position would have recognized that shooting and killing Lopez constituted excessive force,” U.S. Circuit Judges Jacqueline Nguyen and Daniel Collins wrote in their majority opinion. “The district court correctly denied qualified immunity”
The respective Obama and Trump appointees rejected Carroll’s argument that he believed his partner’s life was in danger. In oral arguments last year, the Lopezes suggested that if Carroll’s partner were actually behind or underneath Lopez’s car, then firing nine bullets into the car would only have put her life in more danger. The two judges seemed to agree.
“It is undisputed that Carroll did not see Officer Thranum fall or hear her cry out,” the judges wrote. “Officer Thranum never put any limbs inside Lopez’s car and moved straight backwards when Lopez reversed. Lopez backed up his car slowly, moving at just six miles per hour when he knocked into the police cruiser. The video shows that the car was not in motion when Officer Carroll shot Lopez nine times.”
Because the state claim for wrongful death against the city of Mesa is “inextricably entwined” with the federal claims on qualified immunity, the judges wrote, that claim survives as well. The three claims will move forward to trial, which has not yet been scheduled.
U.S. Circuit Judge Kenneth Lee, a Trump appointee, dissented from the majority, writing in defense of Carroll.
While admitting that Carroll used excessive force, Lee wrote that the violation was not clearly established at the time of the incident, meaning Carroll should receive qualified immunity.
“No binding precedent squarely governs the specific and unique facts here,” Lee wrote. “While Lopez reversed his car relatively slowly, his car still struck Officer Carroll, hitting his arm and causing him to drop his Taser.”
He said the cases the plaintiffs cited in support of their argument were too factually distinct to be applied as precedent here.
“Officer Carroll did not pursue Lopez, fire after being ordered to stop or begin shooting when other officers had the situation under control,” he wrote. “Rather, he shot Lopez after he refused to follow orders and then suddenly struck him with his car, knocking the Taser out of his hand.”
Because the opinion is only a memorandum and not a final judgment, a spokesperson for the city of Mesa said it won't comment. The Lopez family did not immediately respond to a request for comment.
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