A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously found that the facts in Lukus Glenn’s shooting are in dispute and should have been decided by a jury. The ruling sends the case back to the U.S. District Court in Portland for a trial.
The 27-page decision overturns U.S. District Court Judge Michael Mosman’s ruling last year granting summary judgment in favor of the county and two of its deputies stemming from the Sept. 16, 2006 incident.
“We recognize that the officers have offered evidence that could support a verdict in their favor,” according to the opinion, written by Judge Raymond C. Fisher. “A jury could view the facts as the district court did, and likewise reach the conclusion that the officers’ use of force was reasonable. “But on summary judgment, the district court is not permitted to act as a factfinder.”
Larry Peterson, a Lake Oswego attorney representing Glenn’s estate on behalf of his mother, Hope Glenn, welcomed the ruling.
“We’re very pleased with the Court of Appeals’ decision,” Peterson said. “It’s magnificent.”
Washington County Sheriff Rob Gordon, who determined after the shooting that his officers acted correctly and in accord with professional standards, criticized the panel’s decision.
“I thought the summary judgment was exactly right and very well thought out,” he said. “It’s too bad we have to go to trial on it, but I’m comfortable with the facts and the situation.”
Glenn’s family filed a federal wrongful death lawsuit in 2008 against the county and the two deputies involved in the shooting. Each of the lawsuit’s two claims sought more than $7 million.
The lawsuit followed a Washington County district attorney’s investigation into the shooting, which called the incident “tragic” but “legally justified.”
The incident began in the early morning hours when Hope Glenn called 9-1-1, reporting that her son was drunk, out of control and threatening to kill himself. Officers arrived minutes later to find Lukus Glenn outside his house holding a knife to himself.
Both officers, weapons drawn, shouted at Glenn to drop the weapon. When Glenn did not drop the knife, Tigard police Officer Andrew Pastore shot him with six nonlethal bean bags. Almost at the same time, county sheriff’s Deputies Mikhail Gerba and Tim Mateski opened fire with their service weapons after determining that Glenn was moving back toward his house, where his family members were inside. Eight of the 11 shots fired hit Glenn.
The court’s decision noted that the deputies began firing their guns at Glenn even before he had been struck by the final bean bag round. It added that the total elapsed time between deputies’ arriving at the residence and Glenn’s death was only about four minutes.The opinion, citing Washington County’s own use of force continuum, said that Glenn’s level of resistance may not have warranted even the use of bean bag rounds. The appeals court said even if the officers were justified in shooting Glenn, they may still be liable if a jury finds they wrongly shot him with bean bags, prompting the reason for shooting him.
Other disputed points outlined in the ruling include whether the distraught and addled Glenn ever heard officers’ shouts for him to drop his knife; whether Glenn posed an immediate safety risk to others; and whether his movements after being hit by six bean bags represented an intentional effort to get into his house or, alternately, an inadvertent recoiling from the bean bags themselves.
The appeals court’s ruling repeatedly noted that disputed facts in the case should be decided by a trial jury.
Glenn’s shooting has had impacts beyond those in the courtroom.
In the wake of his death, for instance, Washington County instituted annual crisis intervention training and made what had formerly been voluntary sessions mandatory. In addition, Tasers, which previously were carried only by some deputies, were issued to all uniformed deputies.
— Emily E. Smith of The Oregonian contributed to this report.
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