Newmaker v. City of Fortuna is one of a line of cases issued by the Ninth Circuit holding that a jury should decide the constitutionality of police shootings when the only surviving witness to the shooting is the officer who did the shooting (and his or her fellow officers) and when that officer's account is contradicted by circumstantial evidence (such as forensics).
“Deadly force cases pose a particularly difficult problem...because the officer defendant is often the only surviving eyewitness,” the Ninth Circuit held in the 1994 case of Scott v. Henrich. “Therefore, the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify....the court may not simply accept what may be a self-serving account by the police officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.”
The Ninth Circuit recently reaffirmed this principle in Newmaker v. City of Fortuna. The case arose after an officer fatally shot Mr. Newmaker during an arrest in Northern California. The shooting officer claimed that he shot Mr. Newmaker because Mr. Newmaker grabbed his baton and was swinging it at another officer on the scene. There were no witnesses to the actual police shooting except the two officers. (Note that a dash cam video captured the beginning of the altercation, but the officers dragged Mr. Newmaker behind a car and out of dash cam range at the end of the altercation, so the actual shooting was not recorded.)
The trial judge dismissed the case based on the officers' account. But the Ninth Circuit reversed -- finding other evidence that contradicted the officers’ account and called into question the officers' version of events. Among the contradictory evidence was an autopsy report that showed bullet trajectories that contradicted the officers' story about whether Mr. Newmaker was standing up or lying on the ground when he was shot and the fact that the officers' testimony changed over time and appeared to have been coached.
The Ninth Circuit held: "Because this case 'requires a jury to sift through disputed factual contentions' — including whether the officers were telling the truth about when, why, and how Soeth shot Newmaker — summary judgment was inappropriate.”
For more information about the law that applies to police shootings, please see our page on Police Shootings in California.
Please also see our blog topics on the Ninth Circuit and police shootings.