We previously followed the case of Madera (Ca.) officer Marcy Noriega, who shot and killed a handcuffed suspect, Everardo Torres, in the back of a cruiser — after mistaking her semiautomatic pistol for her Taser. Now, the United States Court of Appeals for the Ninth Circuit has ruled that Torres’ family can bring a lawsuit against the officer. Previously, Chief U.S. District Judge Anthony Ishii ruled that the officer had complete immunity from lawsuit in such a circumstance.

Noreiga responded to a call about loud music with other officers on the night of Oct. 27, 2002. Torres and another man were arrested, handcuffed and placed in the back of a patrol car. Torres first fell asleep and then suddenly woke and started kicking the car door and yelling. Noreiga grabbed her service weapon instead and killed Torres. She kept the taser in a thigh holster below her Glock. What is interesting about the decision is that it noted that Noriega had a history of mixing up her gun and her Taser. The most serious was the incident shortly before the shooting:

Just one week later, Officer Noriega again confused her weapons, this time during a field call. Seeking to touch-tase a kicking and fighting suspect who refused to get into the back seat of a patrol car, Officer Noriega instead pulled out her Glock. Only when she tried unsuccessfully to remove the cartridge, which would have been present on her Taser but was not a feature on her Glock, did she realize she was holding the wrong weapon “and it was pointing at [her] partner’s head, the [Glock’s] laser was pointing at his head.” Frightened by this second incident of weapon confusion and by how narrowly she had averted a potentially fatal mistake, she again informed Sergeant Lawson, explaining that she “had pulled out my gun thinking it was my Taser.” Again, Sergeant Lawson instructed her “to keep practicing like he’s been doing and that he’s having everybody do.”

The court also noted in the opinion below that “She had turned off the safety to her Taser earlier that evening, enabling her to use it more quickly.”

Torres’ parents were prevented from suing for illegal search and seizure after the decision by Ishii that Torres was not really “seized” at the time of the shooting. The Ninth Circuit had sent back the case previously to Ishii, who continued to rule for the officer. In this opinion, Judge Michael Daly Hawkins again reversed Ishii and wrote for the panel that “[w]hile a jury might ultimately find Officer Noriega’s mistake of weapon to have been reasonable, it was inappropriate for the District Court to reach this conclusion in the face of material disputes of fact.”

The Court appears to conclude that Islii was a bit too inclined to find facts in favor of the officer when reasonable people could disagree. Yet, it did not instruct a different judge to try the case:

Here, a reasonable jury could weigh the significance of Officer Noriega’s risk awareness and daily practice differently from the way in which the district court weighed those factors. First, to the extent the district court found it relevant that Officer Noriega’s formal training contained no discussion of the risks of weapon confusion, a reasonable jury could find that Officer Noriega’s two experiences confusing the Glock and the Taser should have alerted her to the risks involved, even absent formal discussion. Second, while it did not “give[ ] much weight” to the first weapon confusion incident, even the district court acknowledged that “this incident does show a general confusion by [Officer] Noriega in having both weapons holstered on the dominant side.” Third, the district court minimized the importance of Officer Noriega’s “infor- mal” daily practice by distinguishing it from “formal train- ing,” without explaining the relevance of such an arbitrary distinction—one which we did not intend to invite in Torres I.

The Court also notes that that Ishii seems more concerned about whether this was an “honest mistake” than a “reasonable mistake” — a critical difference:

Finally, the district court seemed swayed by the lack of evidence that Officer Noriega’s mistake when she shot Everardo “was anything other than an honest one.” As noted earlier, however, under Graham, whether the mistake was an honest one is not the concern, only whether it was a reasonable one. See Graham, 490 U.S. at 397. Taking into account all the facts and circumstances facing Officer Noriega at the time of the mistaken shooting, a reasonable jury could find that her mistake was unreasonable because her own prior incidents of weapon confusion put her on notice of the risk of repetition, her daily practice drawing weapons at her sergeant’s instruction equipped her with the training to avoid such incidents, and the non-exigent circumstances surrounding Everardo’s deadly shooting did not warrant such hasty conduct heightening the risk of weapon error. Cf. Wilkins, 350 F.3d at 955; Jensen, 145 F.3d at 1086.

Source: Courthouse News

Jonathan Turley