The case of A.K.H. v. City of Tustin arose after a domestic violence call. The police officer in the case rolled up beside the victim, Benny Herrera, who happened to be walking down the street with one hand in his pocket. The officer demanded that Mr. Herrera take his hand out of his pocket. Less than a second later, as Mr. Herrera was pulling his hand out of his pocket, the police officer shot and killed him.
Mr. Herrera was unarmed and the shooting officer had no reason to believe otherwise, given that the dispatch call had informed the officers that Mr. Herrera was not known to carry weapons. Moreover, the officer did not give any warning before he shot Mr. Herrera.
The Ninth Circuit went through the Graham v. Connor balancing test used in excessive force and police shooting cases and found that the plaintiffs had made out a case for unconstitutional force. The panel found that the severity of the force used was unjustified given the crime at issue was in fact over by the time the officer got involved. The Ninth Circuit also noted that Mr. Herrera posed no immediate threat to anyone -- he was merely walking down the street and was not known to be armed -- and was not trying to flee the scene or evade arrest in any material way that would give the government a compelling reason to shoot him.
Critically, the Ninth Circuit also cited the officer's immediate escalation to deadly force in its Graham v. Connor Fourth Amendment analysis. This is an extremely noteworthy and timely observation, given the recognition by almost all observers of police violence that we must require far more earnest de-escalation tactics of our police officers if we truly want to reduce unnecessary police shootings and save lives.
"Finally, and perhaps most important," the Ninth Circuit wrote, "Officer Villarreal
escalated to deadly force very quickly. Villarreal commanded Herrera to take his hand out of his pocket immediately upon driving up beside him. Villarreal then shot
Herrera just as he was taking his hand out of his pocket. Less than a second elapsed between Villarreal commanding Herrera to take his hand from his pocket and Villarreal shooting him."
The officer also raised a qualified immunity argument, which the panel dispensed with quite simply. The panel found that the officer was not entitled to qualified immunity for the shooting, as the officer violated Mr. Herrera's Fourth Amendment rights and did so in a manner that violated clearly established law. The Ninth Circuit quoted the seminal 1985 deadly force case of Tennessee v. Garner and explained that: "It has long been clear that '[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead.'"
But how many more police shootings victims need to die before Tennessee v. Garner (which was issued over 30 years ago) becomes the law of the streets as well as the law of the land?