KOZINSKI, Circuit Judge:
When police confront a suspect who poses an immediate threat, they may use deadly force against him. But they must stop using deadly force when the suspect no longer poses a threat. We explore the murky boundary between these two circumstances.
Connor Zion suffered several seizures. He then had a seemingly related episode where he bit his mother and cut her and his roommate with a kitchen knife. Police were called. Deputy Juan Lopez arrived at Zion's apartment complex. As Lopez exited his police car, Zion ran at him and stabbed him in the arms. Deputy Michael Higgins drove up separately and witnessed the attack on Lopez.
What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers.
Zion died at the scene. His mother brought suit under 42 U.S.C. § 1983, claiming Higgins used excessive force. She also claims Higgins deprived her of her child without due process. She raised a separate substantive due process claim on Zion's behalf, municipal liability claims and various state law claims. The district court granted summary judgment to defendants on all claims.
A. Fourth Amendment
Plaintiff doesn't challenge Higgins's initial nine-round volley, but does challenge the second volley (fired at close range while Zion was lying on the ground) and the head-stomping. By the time of the second volley, Higgins had shot at Zion nine times at relatively close range and Zion had dropped to the ground. In the
Defendants argue that Higgins's continued use of deadly force was reasonable because Zion was still moving. They quote Plumhoff v. Rickard: "[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended." ___ U.S. ___, 134 S.Ct. 2012, 2022, 188 L.Ed.2d 1056 (2014). But terminating a threat doesn't necessarily mean terminating the suspect. If the suspect is on the ground and appears wounded, he may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting. See id. This is particularly true when the suspect wields a knife rather than a firearm.
Higgins testified that Zion was trying to get up. But we "may not simply accept what may be a self-serving account by the police officer." Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. Lopez Video 3:01. This is a dispute of fact that must be resolved by a jury.
B. Fourteenth Amendment
Parents "have a Fourteenth Amendment liberty interest in the companionship and society of their children."
Higgins violated the Fourteenth Amendment if he acted with "a purpose to harm without regard to legitimate law enforcement objectives." Porter v. Osborn, 546 F.3d 1131, 1133 (9th Cir. 2008). Plaintiff mistakenly argues that the lower "deliberate indifference" standard applies. That standard is appropriate only where "actual deliberation is practical." Id. at 1137 (quoting Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 372 (9th Cir. 1998)).
Higgins didn't violate the Fourteenth Amendment by emptying his weapon at Zion. The two volleys came in rapid succession, without time for reflection. Whether excessive or not, the shootings served the legitimate purpose of stopping a dangerous suspect.
The head stomps are different. After the two volleys, the video shows Higgins walking around in a circle for several seconds before returning for the head strikes. He even takes a running start before each strike. Lopez Video 3:11. This is exactly the kind of "brutal" conduct the Due Process Clause protects against. Breithaupt v. Abram, 352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957). Like forced stomach-pumping, head-stomping a suspect curled up in the fetal position "is bound to offend even hardened sensibilities." Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 S.Ct. 183 (1952); see United States v. Cameron, 538 F.2d 254 (9th Cir. 1976).
This case is akin to A.D. v. California Highway Patrol, where we found that an officer violated due process by shooting a suspect who posed no immediate threat. 712 F.3d 446, 451, 458 (9th Cir. 2013). The suspect there had repeatedly rammed her car into the officer's vehicle, but the officer saw that the suspect had no weapons and ten seconds elapsed between the ramming and the shooting. Id. at 451. Similarly, here a reasonable jury could find that Higgins knew he had rendered Zion incapable of causing harm or fleeing. Higgins had just fired eighteen bullets in Zion's direction, half of them at very close range while Zion lay on the ground. No competent officer could have failed to at least wound his target under these conditions. Higgins then paused before delivering what appear to be vicious blows to Zion's head. Lopez Video 3:04-12. A jury could reasonably find that Higgins knew or easily could have determined that he had already rendered Zion harmless. If so, a reasonable jury could also conclude that Higgins was acting out of anger or emotion rather than any legitimate law enforcement purpose.
C. Remaining Claims
The videos — Exhibits A and B — shall be unsealed.