The Ninth Circuit Creates a Difficult and Dangerous Standard for Officers: An Analysis of Vos v. City Of Newport Beach (June 11, 2018)

Key Facts of Vos v. City of Newport Beach

On May 29, 2014, at around 8:15 p.m., Gerritt Vos entered a 7-Eleven in an agitated manner, prompting someone to call 911. The Newport Police Department dispatch advised the responding officers that Vos was holding a pair of scissors inside the store. Vos had grabbed and immediately released one employee and yelled “I’ve got a hostage.” At around 8:25 p.m., Officer Kresge arrived and was advised by witnesses that Vos cut the hand of an employee who was attempting to disarm him. Officer Kresge saw Vos inside the 7-Eleven pretending to have a gun, which he broadcast on the police radio before asking for backup and a less-lethal projectile launcher. As additional officers arrived at the scene, Officer Kresge informed them that Vos might be under the influence of narcotics.

By 8:30 p.m., there were a total of eight officers at the scene, including Officers Henry, Farris, and Shen. Officer Shen was armed with the less-lethal device while Officers Henry and Farris had firearms. The officers positioned their patrol vehicles outside the store entrance in a “V” formation and took cover behind the doors of their patrol cars. The officers knew Vos might be mentally unstable or under the influence of drugs, and he had been yelling “shoot me.”

At around 8:43 p.m., Vos ran out of the 7-Eleven with an object over his head that appeared to be scissors. When he started his run, he was approximately 30 feet away from the officers. An officer commanded Vos to drop the weapon, which Vos ignored as he continued to charge at the officers. Officer Shen fired the less-lethal projectile launcher and Officers Henry and Farris fired their firearms. Mere seconds passed from the time Vos started charging the officers to the time the fatal shots were fired. Later, Vos’ blood tested positive for amphetamine and methamphetamine, and his medical history revealed he had been diagnosed as schizophrenic. His diagnosis was unknown to the officers at the time of the incident.

Vos’ parents brought numerous claims against the involved officers and the Newport Beach Police Department including, in pertinent part, excessive force in violation of the Fourth Amendment, violation of Title II of the American with Disabilities Act (“ADA”), and violation of the Rehabilitation Act, 29 U.S.C. sections 1213 (“Rehabilitation Act”). The district court found the officers’ use of force was objectively reasonable and that the officers did not violate the ADA or Rehabilitation Act as a matter of law. Vos’ parents appealed the district court’s decision to the Ninth Circuit.

Excessive Force Claims

In determining whether the force used by the officers was reasonable as a matter of law, the Ninth Circuit focused on the facts that Vos had not committed a crime (ignoring Vos was running around the store with scissors, injured an employee, and grabbed one person while yelling he had a hostage) and there was little opportunity for him to flee given the position of the officers. The Court also reasoned Vos was not a threat to the officers or others (apart from injuring the store employee) because the officers had surrounded the front door to the 7-Eleven, established a position of cover, and outnumbered him. The officers did not believe Vos had a gun and they had less-lethal methods available to stop Vos from charging. Additionally, the Court found Vos’ behavior was an indicator to the officers that Vos was mentally unstable. Significantly, Vos’ mental health and the officers’ awareness of his instability, per the Court, should diminish the officers’ interest in using deadly force (i.e. it may impact the assessment of whether the force used was reasonable). Consequently, the Court found the officers were not reasonable in using deadly force as a matter of law.

Qualified Immunity

The Court, however, found the officers were entitled to qualified immunity (immunity from liability for civil damages) because their conduct did not violate clearly established laws under the circumstances “beyond debate.” Vos was acting in an aggressive manner, he cut someone, he asked the officers to shoot him and simulated that he had a gun, and he charged at the officers with something metal in his raised arm.

ADA and Rehabilitation Act

The ADA and Rehabilitation Act prohibits public entities, including law enforcement agencies, from discriminating against “any qualified individual with a disability.” The ADA applies to arrests. Here, the Court found the officers had time and the opportunity to assess the situation and potentially employ accommodations, including de-escalation, communication, or specialized help. The defendants’ argument that the ADA and Rehabilitation Act are inapplicable because Vos’ behavior stemmed from his drug use and not his disability was not addressed by the Court.

What Does this Mean for Law Enforcement?

The Ninth Circuit’s finding that the officers were immune from liability is certainly a victory for the defendants. However, the victory is overshadowed by the Court’s other problematic findings.

For example, the Court’s determination that a suspect’s mental health may diminish the officers’ interest in using deadly force creates an unclear and impractical standard. Just how much deference should be given to the suspect’s mental health when the suspect poses a deadly threat? Are there two standards to be applied when analyzing excessive force cases: one for those who are mentally unstable and one for those who are not? (Other courts have already determined that only one standard should be applied.)

Likewise, the Court’s finding that an accommodation such as specialized help should have been offered begs the question: what is “specialized help”? Does this require officers to have a psychiatrist on call in the event they dealing with a person that may be having a psychotic break? How are officers – who are not mental health professionals – in rapidly evolving situations supposed to distinguish between a suspect that is on methamphetamine versus a one with mental health issues? How can an officer de-escalate and communicate with a suspect that is charging at him/her with a weapon?

Ultimately, when handling a suspect that is believed to be mentally unstable, less than lethal options should be deployed and an effort to communicate with the suspect to de-escalate the situation is critical if time permits.  However, officer safety is paramount and should not be compromised.

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