Deputy who shot, stomped a downed suspect can be sued for excessive force, appeals court rules

An Orange County sheriff’s deputy who in 2013 continued to shoot a felled suspect and then stomped his head may be sued for using excessive deadly force, a federal appeals court decided Wednesday.

“When police confront a suspect who poses an immediate threat, they may use deadly force against him,� Judge Alex Kozinski wrote for a unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals. “But they must stop using deadly force when the suspect no longer poses a threat.�

In an unusual action, the court released the police videos of the fatal shooting, which can be viewed here and here. The shooting occurred three minutes into the first video and 3½ minutes into the second.

The court reached its decision in a lawsuit filed by the mother of Connor Zion, 21, who suffered seizures, bit his mother and cut her and his roommate with a kitchen knife, according to the court.

The Sheriff’s Department was called. When Deputy Juan Lopez arrived at the condominium complex in Laguna Niguel, Zion ran toward him and stabbed Lopez’s arms.

Deputy Michael Higgins, who arrived separately and saw the attack, shot Zion.

Video on the department dashboard cameras revealed that Higgins initially fired nine shots. Once Zion was on the ground, Higgins fired nine more times, emptying his gun.

Then Higgins walked in a circle, took a “running start� and stomped on Zion’s head three times, the court said the video showed.

The Sheriff’s Department later awarded Higgins a medal of valor for the action for saving his partner’s life, the Orange County Register reported.

Zion appeared to have been wounded and was not making threatening gestures after being fired upon at “relatively close range� and falling to the ground, the court said.

“While Higgins couldn’t be sure that Zion wasn’t bluffing or only temporarily subdued, Zion was lying on the ground and so was not in a position where he could easily harm anyone or flee,� Kozinski wrote.

A jury could find that Zion did not pose an immediate threat and that Higgins should have held his fire, the court said.

“Or, a jury could find that the second round of bullets was justified, but not the head-stomping,� Kozinski wrote.

The Sheriff’s Department argued that Zion remained a threat on the ground because he was still moving.

“But terminating a threat doesn’t necessarily mean terminating the suspect,� Kozinski said.

If a suspect is on the ground and appears wounded, “a reasonable officer would reassess the situation rather than continue shooting,� the court said.

The Constitution’s due process clause protects against such “brutal� conduct as head stomping, the court said, noting the strikes to Zion’s head appeared to be “vicious blows.�

“Like forced stomach-pumping, head-stomping a suspect curled up in the fetal position ‘is bound to offend even hardened sensibilities,’� Kozinski wrote, citing a previous ruling.

The decision revived the lawsuit filed by Kimberly Zion, the dead man’s mother. A district judge had ruled for the Sheriff’s Department.

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