Court revives suit against Newport Beach police

It’s possible a jury would find that a man slain by officers wasn’t a threat, panel rules.

A federal appeals court has revived a lawsuit against Newport Beach over the 2014 police shooting of a man who suffered from schizophrenia and was under the influence of drugs.

A panel of the 9th U.S. Circuit Court of Appeals decided 2 to 1 on Monday that it was possible a jury would find the slain man was not an immediate threat and that the officers had less lethal means of stopping him.

The May 29, 2014, incident began about 8:15 p.m. when Gerrit Vos, 22, became agitated after entering a 7-Eleven store. Vos shouted that he wanted to be killed and ran around cursing at people. Someone called 911 and reported that Vos had scissors.

While Vos continued to yell and curse, video showed customers “going about their business of shopping and checking out at the cash register,” the 9th Circuit said.

“At one point,” the court said, “Vos grabbed and immediately released a 7-Eleven employee, yelling, ‘I’ve got a hostage.’ ”

An employee who tried unsuccessfully to disarm Vos suffered a half-inch laceration on his hand.

At least eight officers and a canine unit responded. The ruling said police knew Vos had no gun and believed he had scissors. They also assumed he suffered from a psychiatric disorder or was under the influence of drugs. They heard him yelling, “Shoot me.”

One of the officers had a 40-millimeter less-lethal projectile launcher, which the first officer on the scene had requested. Other officers had stun guns.

When Vos charged out of the store toward police, one officer fired the projectile launcher. Within a few seconds, two other officers fired bullets and killed Vos, who worked as a hairdresser in San Clemente.

He was found to have been carrying a metal hook, and his blood later tested positive for amphetamine and methamphetamine.

The Orange County district attorney’s office investigated the shooting and found that the use of force had been justified. Vos’ parents sued.

The 9th Circuit majority, citing the fact that police outnumbered Vos and had positioned themselves behind their car doors, found that “a reasonable jury could conclude that Vos did not pose an immediate threat such that the use of deadly force was warranted.”

“Vos was within 20 feet of the officers when he was shot, a distance within the range of the 40-millimeter less-lethal weapon, a taser, or a canine,” wrote Judge Donald W. Molloy, a district judge from Montana and a Clinton appointee filling in on the court. Ninth Circuit Judge Mary H. Murguia, an Obama appointee, joined him.

The majority also said it was undisputed that Vos was “mentally unstable.”

The ruling allows Vos’ parents to press their suit against Newport Beach, but not against the individual officers who shot their son.

‘A reasonable jury could conclude that [Gerrit] Vos did not pose an immediate threat such that the use of deadly force was warranted.’ — 9th U.S. Circuit Court of Appeals

The court said those officers were immune from liability under the law at the time.

Judge Carlos T. Bea, appointed by President George W. Bush, dissented.

“It is reasonable for an officer, with only seconds to react, to conclude that the person wielding what looks like a knife and charging at him and his fellows would do serious harm to at least one of them,” Bea wrote.

Bea said the majority had created a rule “that in all circumstances the governmental interest in deadly force is diminished where the subject is mentally ill.”

“Whether the person who charges the officer does so out of a base desire to kill, or does so because, in the midst of a psychotic episode, he thinks the officer is a monster or a ghost, the danger to the officer is the same,” Bea wrote.

The decision, unless appealed to a larger panel of the 9th Circuit, clears the way for a trial on the lawsuit.