Second Shot After Clearing Weapon Leads to Liability

Lam v. City of Los Banos, 2020 WL 5742071 (9th Cir. 2020)

42-year-old Sonny Lam had a history of mental illness and lived with his 80-year-old father, Tan Lam. Sonny stopped taking his medication and assaulted Tan, who asked a neighbor to call 911, hoping the police would force Sonny to take his medication and take him to a mental health treatment facility.

Officer Acosta arrived and met Tan, who told him Sonny had “lost his mind.” Officer Acosta entered the residence with Tan following. When Officer Acosta confronted Sonny in his bedroom, Sonny pushed him from the room and he called for backup. Sonny grabbed a pair of scissors, stepped toward the officer and stabbed him in the forearm.

Officer Acosta fired once, striking Sonny in the calf and causing him to drop the scissors. The officer’s weapon jammed. He retreated down the hallway and used a “tap, rack, roll” technique to clear the malfunction. He then fired a second shot at Sonny, who was still standing at the end of the hallway. The second shot struck Sonny’s chest. Tan Lam sued.

A jury ruled in favor of the father, finding that Officer Acosta had retreated after the first shot and that Sonny did not approach him with the scissors before he fired the fatal second shot. At trial, the plaintiff introduced evidence that Officer Acosta, an Iraqi war veteran, had been treated for PTSD two years prior to the shooting. The officer’s former therapist testified Officer Acosta suffered from “forgetfulness.” Another therapist testified Acosta’s PTSD diagnosis meant certain situations could be triggers for a PTSD episode, including clearing houses and drawing weapons. He testified that, if such triggering events occurred, Officer Acosta could experience “intense psychological distress” and “hypervigilance.”

Following the verdict, Officer Acosta filed a renewed motion for judgment in his favor as a matter of law (a motion allowed under Federal Rule of Civil Procedure 50(b) in certain circumstances, including when qualified immunity is appropriate). The trial court denied the motion, ruling Officer Acosta was not entitled to qualified immunity. Officer Acosta then appealed the jury verdict and certain evidentiary rulings by the trial court, including the decision to allow testimony about his PTSD diagnosis and treatment.

The appellate court held the officer was not entitled to qualified immunity based on the facts determined by the jury in its verdict. First, the law was clearly established at the time of the shooting that an officer could not use deadly force against a person who did not pose an immediate threat. The law was also clearly established that firing a second shot at a subject who had previously presented a threat but did not pose a threat at the time of the second shot was unconstitutional.

This case might present a good training scenario to reinforce the task of assessing the existence of an immediate threat. Perhaps the command could be, “Scan, assess, breathe, make safe and holster.”

Although it denied Officer Acosta qualified immunity, the appellate court found insufficient evidence to support the jury’s verdict that Acosta committed a 14th Amendment violation; it remanded to the district court for further proceedings. Tan unsuccessfully claimed Officer Acosta intentionally deprived him of Sonny’s familial association.

The court then turned its attention to Officer Acosta’s request for a new trial based on alleged errors in the trial court’s admission of the PTSD evidence. The officer objected to the evidence in a pre-trial motion in limine. His objection asserted the proposed evidence did not meet the test for scientific reliability. The trial court denied the motion without prejudice to renew the objection at trial. However, the officer did not renew his objection to the PTSD evidence at trial. The appellate court held the PTSD evidence was relevant because it bore directly on the officer’s credibility. Additionally, the gap of two years between the shooting and the time of the officer’s last treatment for PTSD did not render the evidence irrelevant.

The dissenting judge opined that Officer Acosta was entitled to qualified immunity. According to the dissent, Officer Acosta was in a tense, rapidly evolving situation when he retreated down the hallway to clear the weapon malfunction. He could not know whether Sonny would renew his assault. The dissent also asserted the trial judge erred in admitting the PTSD evidence, arguing the plaintiff had presented no evidence the officer was experiencing PTSD at the time of the shooting.

Firearms instructors once used the simple command, “Make safe and holster” to signal the conclusion of a course of fire. Advances in tactical thinking transformed the command to, “Scan, breathe, make safe and holster.” Inherent in the “scan” component is the duty to assess whether there is still a threat. This case might present a good training scenario to reinforce the task of assessing the existence of an immediate threat. Perhaps the command could be, “Scan, assess, breathe, make safe and holster.” Another vital takeaway is the dissent’s statement that “the court should have never allowed the evidence to be admitted…the evidence tainted the entire trial. It is a serious injustice…” In a time when a judgment call made in “tense, uncertain and rapidly evolving” circumstances may possibly result in criminal prosecution and a life in prison, officers must demand the best quality legal counsel to protect against a “serious injustice.”

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

More Posts

Law Enforcement Response to People in Crisis

Related Posts

Back to Top