Washington County Asks 9th U.S. Circuit Court of Appeals to Reconsider Ruling in Lukus Glenn Family Lawsuit

From The Oregonian, November 22, 2011

Washington County has petitioned a federal appeals court to reconsider ordering a trial in a wrongful death lawsuit against the county and two of its deputies.

Lukus Glenn

Lukus Glenn

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Nov. 4 that a U.S. District Court judge wrongfully dismissed a lawsuit on behalf of Metzger teen Lukus Glenn, shot and killed by Washington County sheriff’s deputies in 2006.

READ – Everything about Lukus Glenn

The panel found that facts of the shooting are in dispute and should have been decided by a jury. The decision overturned U.S. District Court Judge Michael Mosman‘s ruling last year granting summary judgment in favor of the county.

The county’s petition for rehearing, filed by attorney William G. Blair on Monday, says judges overlooked several “material points of fact and law” in their decision. It also requests that a 10-judge panel, excluding the three judges who issued the earlier ruling, rehear the case.

Washington County Sheriff Rob Gordon said Wednesday the county is asking for an en banc review of the case because county legal advisers believe the appellate court’s ruling was made in error.

“I think the first judge was dead on with what the law is,” Gordon said.

In its Nov. 4 ruling, the 9th Circuit panel raised questions about Deputies Mikhail Gerba and Tim Mateski‘s use of force and tactical decisions in the Sept. 16, 2006, incident.

The county’s petition says the officers’ actions were reasonable responses to what they perceived as Glenn’s threatening behavior.

Glenn, “an armed, drunk, suicidal young man in mental crisis who has vented his feelings by breaking windows and kicking in a door,” presented a threat to officers, the petition says.

“The panel decision would set a precedent requiring police to withhold action that would otherwise neutralize an imminent threat of death or serious physical injury.”

The petition also says judges examined the case from an unrealistic perspective.

“A deadly force decision cannot be judged with the benefit of 20/20 hindsight,” it says. “Viewing the undisputed facts in a light most favorable to the plaintiff does not and cannot override the fundamental principle that ‘woulda, coulda, shoulda’ has no place in this Fourth Amendment analysis.”

The petition goes on to say that while the 9th Circuit has decided officers’ conduct leading up to a shooting may be considered in determining whether use of force was reasonable, many other circuits have rejected that position.

The petition also says the panel decision undermines the basis for qualified immunity, which protects public officials from civil liability when their conduct does not violate clearly established constitutional or statutory rights.

The ruling, the petition says, would eliminate “any possibility of a summary judgment based on qualified immunity in a Fourth Amendment use of force case.”

The incident that ended in Glenn’s fatal shooting 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 knife. When Glenn did not drop the weapon, Tigard police Officer Andrew Pastore shot him with six nonlethal bean bags. Almost at the same time, deputies 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.

In an interview with The Oregonian Wednesday, Gordon called the shooting “such an emotional case for everyone.”

“I feel for the Glenn family,” he said. “I understand what they are doing. I understand completely.”

Gordon said he also feels for the deputies who were involved.

The incident has become “a large part of their lives.” They’ve been through a lengthy court battle, he said.