After a hard-fought battle, McManis Faulkner secured an appellate court win in the Ninth Circuit against the City of San Jose.
On October 31, 2019, a man was shot in the back and killed by a police officer, without warning less than a mile from his home. The police officers at the scene were responding to reports that the man had brandished a weapon, a misdemeanor offense. Before gunning the man down, the officers issued conflicting and confusing commands, which the man did not clearly and immediately obey. The weapon was later discovered to be a BB gun tucked into his waistband.
The officer claimed he shot the man in the back because he saw him making a furtive movement reaching for the gun and posed a threat to nearby bystanders. His claims, however, were contradicted by his fellow officers, including one who stated that he did not see any movement that led him to believe that the victim was reaching for the gun in his waistband. Other officers also disputed whether there were any bystanders nearby.
Even so, the judge granted summary judgment—without oral argument—and unbelievably dismissed the entire case on grounds of qualified immunity, i.e., that it was not “clearly established” law at the time that shooting the man in the back without a warning was unlawful “given the circumstances” of the case. McManis Faulkner appealed.
The appeal took approximately two years. Last month, the Ninth Circuit issued its opinion. The panel reversed the district court’s summary judgment granting qualified immunity and held, “It was clearly established that when a man is walking down the street carrying a gun in his waistband, posing no immediate threat, police officers may not shout conflicting commands at him and then kill him.”
The victim’s family members were immensely grateful to our firm for working toward justice for their loved one. The case will now return to the district court to proceed to trial.