Tenth Circuit Affirms Deadly Police Shooting for Jury to Decide
In Zia Trust Company v. Montoya, 2010 U.S. App. Lexis 5016 (March 9, 2010), the child of a victim of police use of deadly force brought a lawsuit against the police officer and Dona Ana County. In this police shooting case, the police officer filed a motion for summary judgment in district court. The district court denied the motion holding that the law related to excessive use of deadly force was clearly established. The Officer appealed and the Tenth Circuit affirmed that a reasonable jury could find that the officer's use of force deprived the child's father of his fourth amendment right to be free of excessive force. The opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-2006.pdf.
In this case, police were called to a home where a father and an adult son were having a dispute. The son was reported to have mental health problems. When police arrived, the son was in a car lodged on a pile of rocks. The car lurched forward about a foot and Officer Montoya fired a single shot into the car killing the son. The Tenth Circuit found that a reasonable jury could conclude that Officer Montoya used excessive force in shooting the adult son.
For practitioners, the Tenth Circuit explained, in greater detail, the factors a jury may consider when deciding whether deadly police force is unlawful:
We may also consider a number of factors, including: "(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect." Estate of Larsen, 511 F.3d at 1260. "The use of deadly force is justified under the Fourth Amendment if a reasonable officer in the Defendant's position would have had probable cause to believe that there was a threat of serious physical harm to themselves or others." Walker, 451 F.3d at 1159 (internal quotations omitted).
