Seattle police dodge claims in fatal shooting of man holding baby

SEATTLE (CN) — The family of a man who was fatally shot by police while holding his infant will not have another chance to pursue excessive force claims against the officer after the Ninth Circuit on Thursday upheld dismissal of the case.

The panel found Seattle Police officer Noah Zech’s “actions within the unique facts of this case were not so beyond the bounds of permissible as ‘to make it obvious to all reasonable government actors, in [Zech’s] place, that what he [was] doing violate[d]’ a clearly established right,” U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee, wrote for the majority.

Shaun Fuhr was holding his 1-year-old child when Zech fatally shot him. The child’s mother called 911 midday on April 29, 2020. She told police Furh had attacked her the day before and had now disappeared with their child in the park, drunk and armed with a gun.

Fuhr, who had fired his gun in the public park, evaded authorities for over 30 minutes as a helicopter and SWAT officers responded to the scene. Law enforcement reported seeing Fuhr haphazardly handling the baby and said Fuhr ignored their warnings to stop.

Zech and another SWAT officer ultimately encountered Zech in a residential alley and Zech fired a bullet at Fuhr’s head as he appeared from behind a bush and approached the officers with his baby in his arms.

Fuhr’s family sued Zech and the city. The lower court granted summary judgment in favor of the city, finding the underlying facts didn’t support the family’s claims and that some of the family’s claims were improperly pleaded. It also determined that even if Fuhr’s constitutional rights were violated, the officer who shot him was entitled to qualified immunity.

But Fuhr’s family argued before the Ninth Circuit this past November that the police “artificially went to the highest severity” when responding to the call and that Fuhr didn’t present an immediate threat.

A majority of a three-member Ninth Circuit panel disagreed and found Zech was entitled to qualified immunity from the claims. McKeown was joined in the opinion by U.S. Circuit Judge Roopali Desai, a Joe Biden appointee.

To establish whether Zech was entitled to qualified immunity, the appeals court tried to find a similar case that found an officer violated constitutional rights. But, the Ninth Circuit didn’t find any comparable cases.

“Fuhr’s continued possession of the baby after firing a gun, fleeing from law enforcement, and ignoring commands to stop are factors that, when combined, distinguish this case from clearly established law that sets out a constitutional violation,” McKeown wrote.

In addition to the excessive force claim, the family also raised claims for wrongful death, discrimination, outrage and negligence. The panel similarly found the claims failed.

For the negligence claim, the majority agreed with the lower court that “the complaint’s allegations as well as Fuhr’s summary judgment opposition were impermissibly conclusory as to breach and causation.”

The discrimination claim failed due to a lack of evidentiary support and the outrage claim failed because it relied on previously failed civil rights claims.

But in a dissent, U.S. Circuit Judge William Fletcher, also a Clinton appointee turned the attention to the moment of the shooting itself rather than the lead-up.

“Both of his hands were clearly visible. His right hand held his daughter’s back from beneath. His left hand held his daughter’s right leg, reaching over her leg from above,” Fletcher wrote. “The video clearly shows that neither hand held a weapon.”

Fletcher further asserted that Zech shot Fuhr in the head before he had a chance to comply with an order to stop approaching the officers.

“When he was shot, Fuhr posed no immediate threat to the officers,” Fletcher wrote. “Though the officers did not know it at the time, Fuhr did not have a firearm.”

Fletcher also noted Fuhr was never warned that deadly force would be used.

“The undisputed facts make clear that when he was shot Fuhr presented no immediate threat to either the officers or his daughter,” Fletcher wrote. “To use Officer Zech’s words, he was ‘cornered’ and could not escape.”

Neither Seattle nor Fuhr’s family responded to a request for comment before press time.