In Zion v. County of Orange, published November 1, 2017, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant deputy. The plaintiff's decedent bit his mother and cut her and a roommate with a kitchen knife. When deputies arrived, the decedent ran at a deputy and stabbed him in the arms. The defendant deputy witnessed the attack. The decedent started walking back toward an apartment complex. The defendant deputy shot the decedent nine times, from 15 feet away. The decedent fell to the ground The deputy ran up to the decedent and fired nine more rounds from a distance of four feet. The decedent curled up on his side. The deputy walked in a circle. The decedent was still moving. The deputy took a running start and repeatedly stomped on the decedent's head. The decedent died at the scene. The plaintiff did not challenge the initial nine shots, but contended that the shots and head stomp after the decedent fell were excessive force and violated the Fourth and Fourteenth Amendments.
The 9th Circuit concluded that the defendant deputy was not entitled to summary judgment based on qualified immunity. A jury could find that the deputy shot and stomped the decedent when the decedent ceased to pose a threat. It was clearly established that doing so would violate the decedent's Fourth Amendment right to be free of excessive force. The gunshots did not violate the Fourth Amendment, because the second volley closely followed the first, there was no time for deliberation, and whether excessive or not the shots served a legitimate law enforcement purpose: stopping the suspect. But the head stomps appeared to follow deliberation by the deputy. A jury could determine that the deputy stomped the decedent's head out of anger, after the decedent no longer posed a threat. That would be a violation of substantive due process.
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