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Supreme Court clears the way for lawsuit over Newport Beach police shooting

David G. Savage, Los Angeles Times on

Published in News & Features

WASHINGTON -- The Supreme Court turned down an appeal from the city of Newport Beach, Calif., on Monday, clearing the way for an excessive-force lawsuit against the police for shooting and killing a mentally ill young man who came running at them holding a pair of scissors.

The justices refused to shield the police from the lawsuit brought by the parents of Gerritt Vos, who died in 2014.

Last year, the 9th Circuit in a 2-1 decision revived a lawsuit brought by the victim's parents and said a jury should decide whether the police faced an "immediate threat" that justified the shooting outside a convenience store in Newport Beach. In addition, the appeals court said the jury should consider whether officers should have used extra caution because the man was mentally ill.

The Americans With Disabilities Act requires public agencies to accommodate people with mental or physical disabilities, and the 9th Circuit has said that law applies to arrests.

Five years ago, the 9th Circuit cited the disabilities law in clearing the way for a mentally ill San Francisco woman to sue two police officers who forced their way into her kitchen in a group home and then shot her when she brandished a knife. The justices tossed out most of her lawsuit but did not rule on whether the disability act applied.

Lawyers for Newport Beach cited that case and urged the high court to block the suit on the same basis. But the court issued a one-line order Monday saying it would hear the case of Newport Beach vs. Vos.

It began on the evening of May 29, 2014, when Vos, a 22-year-old hairdresser from San Clemente, was shouting and cursing in a 7-Eleven store. The police were called and were told the man was agitated and angry and might be under the influence of drugs. The customers and clerks escaped from the store, and one reported he had been cut on the hand by scissors wielded by the disturbed man.

Within 20 minutes, eight officers took places positioned outside behind two police cars. They had a police dog with them and non-lethal weapons, but two officers were armed with AR-15 rifles. When Vos came running out of the store, he was shot four times and died from the wounds. His blood tested positive for methamphetamine, and his medical history revealed he had been diagnosed as schizophrenic.

His parents, Richard Vos and Jenelle Bernacchi, filed a $25 million lawsuit against Newport Beach and the city's police, alleging they used "excessive, unwarranted and brutal" force in killing their son. Their suit included claims based on the 4th Amendment's ban on unreasonable seizures as well as a violation of the federal disabilities law. They said the police should have tried "de-escalation and communication."

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A federal district judge ruled for the city and dismissed the suit. The 9th Circuit revived the claims against the city but not against the individual officers, and said a jury should decide whether the use of force was reasonable or excessive. "Here the facts are such that a reasonable jury could conclude that Vos was not an immediate threat to the officers," the majority said. They "had surrounded the front door to the 7-Eleven, had established positions behind cover of their police vehicles and outnumbered Vos eight to one. ... They did not believe he had a gun, and the officers had less lethal methods available to stop Vos from charging."

The dissenting judge said the police had only seconds to react.

In their appeal, lawyers for the city highlighted the issue of whether police officers must make "reasonable accommodations" for a knife-wielding suspect who might be mentally ill.

"Municipalities and law enforcement officers throughout the nation should know whether, when faced with that peril, they must consider not only the 4th Amendment's restrictions on use of force, but also whether they are providing reasonable accommodations to the attacking suspect," they said.

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