Chief Judge Thomas and Judge Friedland think that the jury properly found the police officer liable. Judge Bennett disagrees. Here are the facts. See which side you think you'd be on:
"At the time of the incident, Tan Lam—then 80 years old—lived with his 42-year-old son, Sonny Lam, at Sonny’s home in Los Banos, California. Sonny had Type 2 diabetes and a history of mental health issues that included symptoms such as “hearing voices.” In the past, Sonny generally managed these mental health issues with medication, but he had stopped taking his medications, which caused his mental and physical health to deteriorate. At the time of this incident, Sonnywas 5’ 8”, weighed 136 pounds, and was very frail. In the afternoon of September 2, 2013, Sonny became agitated, swearing at and unsuccessfully attempting to hit Lam, so Lam drove to a neighbor’s house and asked her to call 911. . . .
Officer Jairo Acosta was dispatched to investigate the call as a possible assault, and he met Lam outside Sonny’s home. Lam told Acosta that Sonny had “lost his mind” before the two entered the home through the garage. When Lam and Acosta arrived outside Sonny’s bedroom, Acosta pushed open the bedroom door and found Sonny sitting at his desk, unarmed and wearing nothing but basketball shorts. Sonny immediately started yelling at Acosta and Lam to get out of the room. Acosta approached Sonny and grabbed Sonny’s shoulder to get Sonny to leave the room with him. Lam testified that when Sonny refused to leave his room, Acosta challenged Sonny, saying, “Beat me, beat me,” as Sonny yelled, “No, no, no” and made punching motions through the air. Sonny then stood up and began pushing Acosta out of his room, forcing both Lam and Acosta into the main hallway. Lam retreated down the hallway into the turning point so that he was behind Acosta and could no longer see Sonny. Acosta radioed dispatch with a non-urgent request for back-up. Sonny did not have any weapon in his hands at this point.
According to Acosta, Sonny then went to a desk drawer and grabbed what Acosta thought was a knife, but turned out to be a pair of scissors. Acosta testified that he then pulled out his gun and took a step back as Sonny approached him with the scissors, and that he told Sonny to drop the scissors. Lam testified he did not hear Acosta give a warning. Sonny stabbed Acosta in the left forearm with the scissors, and Acosta then shot Sonny in the right calf, with the bullet passing through his leg.
After Acosta fired the first shot, Lam ran to Acosta and asked him why he shot Sonny, and Acosta replied that Sonny had a knife. Lam testified that he could not see any weapon, but Acosta yelled, “Go back, go back.” Acosta retreated down the hall, and took the time to clear his handgun, which had jammed, using a “tap, rack[,] and roll” technique.
Acosta continued backing down the hallway so that Lam was behind him. When Acosta was positioned near the turn of the hallway, he fired the second shot at Sonny, who was still in the main hallway. It is undisputed that Acosta did not provide a warning to Sonny before firing the second shot. The second shot hit Sonny in the chest at a downward angle, and he fell to the ground.
Lam rushed to Sonny, who was lying face-up on the floor, bleeding and screaming. Backup arrived shortly thereafter, and Sonny was handcuffed before being placed on a stretcher and taken outside while Lam was told to wait in the living room. Officer Teresa Provencio was the first officer to arrive after the shooting, entering through the garage and walking past Sonny and down the hallway. She did not see any scissors or other weapon near Sonny, nor did Acosta warn her that Sonny had been armed or that he had stabbed Acosta with the scissors. Officer Christopher Borchardt was the next to arrive on-scene, and Acosta reported to Borchardt that Sonny had stabbed him with scissors, and Acosta revealed a small puncture wound on his forearm. Borchardt testified that he observed a pair of scissors under Sonny’s thigh, but the position of the scissors was never confirmed by photograph because Borchardt testified that he slid the scissors away from Sonny and that the scissors were then moved to a different room. Sonny was taken to the hospital, where he died during surgery."
The jury made the following specific factual findings: "(1) Sonny stabbed Acosta with a pair of scissors; (2) Sonny did not grab Acosta’s gun prior to Acosta firing the first shot; (3) Acosta retreated from Sonny after firing the first shot; and (4) Sonny did not approach Acosta with scissors before Acosta fired his gun the second time." There's definitely substantial evidence (in my view) to support those conclusions. (For a flavor: "Acosta gave inconsistent accounts of whether Sonny advanced on him with the scissors, and the jury was entitled to take those inconsistencies into consideration. At trial, Acosta gave two different versions of which hand Sonny used to hold the scissors. His officer-involved-shooting interview, conducted just a few hours after the event, contradicted his trial testimony. In addition, he told the interviewers that Sonny had dropped the scissors after the first shot. At trial, he testified that Sonny had never dropped the scissors. He told interviewers that Sonny had fallen to the ground after the first shot, but at trial he claimed Sonny did not fall after the first shot. At trial, he had difficulty remembering what he said to arriving officers or the sequence of events. In short, Acosta’s testimony was significantly impeached by his prior inconsistent statements and his inconsistent testimony at trial.")
Basically, a suspect stabs an officer with a pair of scissors, gets shot, drops the scissors, maybe moves a little bit down the hallway (without a weapon), and the officer takes time to clear his jammed weapon and, once it's cleared, shoots and kills the now-unarmed suspect. Okay or not?
