NINTH CIRCUIT AFFIRMS SUMMARY JUDGMENT FOR DEFENSE IN CASE OF FATAL OFFICER-INVOLVED SHOOTING

On December 10, 2015, the Ninth Circuit affirmed summary judgment in favor of the City of Downey, its police department, Chief of Police, and several officers as to the plaintiffs’ 1983 lawsuit alleging unreasonable use of deadly force. On the evening of February 22, 2010, Steven Bours was walking, screaming, and occasionally kneeling in the middle of Paramount Boulevard in the City of Downey. Downey police officers attempted to contact and subdue Mr. Bours, but he physically resisted. After the application of a Taser, the officers safely placed Mr. Bours in handcuffs. Paramedics were called to the scene and Mr. Bours was taken to a local hospital for evaluation and treatment. A subsequent toxicological screening test was positive for amphetamines and methamphetamines. Then, on March 20, 2010, during the evening rush hour, Mr. Bours was walking in the traffic lanes of Paramount Boulevard toward Imperial Highway. Mr. Bours was carrying an axe and several witnesses called 911. Two nearby Downey police officers responded. Mr. Bours walked up to the hood of the stopped police vehicle, ignored repeated orders to drop the axe, and then moved around the front of the vehicle to the passenger side. At that point, both officers fired their weapons, and Mr. Bours fell to the ground. Paramedics arrived within five minutes, and Mr. Bours was transported to a local hospital where he was pronounced dead. A subsequent toxicological blood test revealed amphetamine and methamphetamine.

Mr. Bours’ parents brought a lawsuit under 42 U.S.C. § 1983 and state law, alleging the use of excessive force and resulting violations of constitutional rights during both incidents. Steven Bours’ two minor children were later added to the lawsuit through a guardian ad litem. Plaintiffs’ claim of violation of a First Amendment right of association, claim of wrongful death, and the children’s claim for violation of California Civil Code § 52.1 were dismissed on December 11, 2012 pursuant to a Motion for Judgment on the Pleadings. On January 8, 2013, the parties stipulated to the dismissal of all claims and defendant officers based on the February 22, 2010 incident. On February 13, 2013, pursuant to another Motion for Judgment on the Pleadings, the estate of Steven Bours’ claim under California Civil Code § 52.1 was dismissed.

Defendants then filed a Motion for Summary Judgment relating to the use of deadly force, based in large part upon the police vehicle’s dashboard recording of the incident, as well as materially similar legal precedent. On April 16, 2013, the District Court granted the motion and thereafter entered judgment in favor of all defendants. Plaintiffs appealed the February 13, 2013 granting of judgment on the pleadings as to Steven Bours’ claim under California Civil Code § 52.1 as well as the granting of summary judgment. Plaintiff argued that the District Court incorrectly analyzed the viability of Steven Bours’ claim under California Civil Code § 52.1, and on summary judgment had improperly weighed the evidence. Plaintiffs also argued that the officers’ 19 separate orders to drop the axe (made at gunpoint) were insufficient warnings of the potential use of deadly force. David Lawrence of LBAC represented the Defendants at oral argument. Plaintiff has petitioned the Ninth Circuit for en banc rehearing; that request was denied.