In the aftermath of the 2006 shooting of 18-year-old Lukus Glenn by two Washington County sheriff deputies, Sheriff Rob Gordon released a rare (for Washington County) administrative review of his death. “No policies were violate during this critical incident,” the review insisted. “WCSO deputies involved in this incident performed as trained, followed established policies, and acted in a professional manner.”But for the Ninth Circuit Court of Appeals, that whitewash of this brutal and unnecessary shooting might have passed for the historical record.
On Friday, the Ninth Circuit reversed the decision by U.S. District Judge Michael Mosman granting summary judgment to the deputies, Mikhail Gerba and Tim Mateski. Hope Glenn, Lukus’ mother, had brought suit against the officers and the county in a wrongful death claim, alleging an unconstitutional use of force.
Thanks to the Court of Appeals, that suit may yet see sunlight and a reflective jury.
The court’s 27-page argument offers a painful recap of what passes for training and professionalism in the Washington County sheriff’s office.
Deputy Michael Gerba was the first officer to respond to the 911 dispatcher’s call that officers were needed at the Glenn home, where Lukus was extremely intoxicated and threatening to kill himself with a pocketknife. As Judge Raymond Fisher writes, “Gerba was not on duty with the Washington County Sheriff’s Department that night, but was working on a special assignment for the Oregon Department of Transportation performing traffic control for a construction project … For some unknown reason, he skipped the staging area and went directly to the Glenn home.”
When Gerba arrived on the scene, he first encountered David Lucas, a family friend who’d been called to the scene by Lukus Glenn’s parents to calm him down: “Gerba initially encountered David Lucas and, pointing his gun at David, ordered him to ‘(g)et on the (expletive) ground.’ David did as ordered and told Gerba that Lukus was ‘over there by the garage; we have him calmed down.'”
“Gerba proceeded up the driveway and positioned himself eight to 12 feet from Lukus, who was standing by the garage near his parents and Tony Morales (another family friend). Gerba had a completely unobstructed view of Lukus, who could be seen clearly under the garage light. Lukus was not in a physical altercation with anyone, nor was he threatening anyone with the pocketknife or in any other way, and no one was trying to get away from him. He was, however, holding the pocketknife to his own neck.”
Fisher continues, “Gerba held his .40 caliber Glock semiautomatic pistol in ‘ready position, aimed at Lukus.’ From the moment he arrived, Gerba ‘only scream(ed) commands loudly at Lukus’ such as ‘drop the knife or I’m going to kill you.’ As the district court recognized, Lukus may not have heard or understood these commands because he was intoxicated and many people were yelling at once. Gerba ‘did not attempt to cajole or otherwise persuade Lukus to drop the knife voluntarily.’ Numerous witnesses described Gerba’s behavior as ‘angry, frenzied, amped and jumpy,’ and noted that they were ‘shocked by how (he) approached this situation.’ Within a minute of Gerba’s arrival, Hope began ‘begging the 911 operator, ‘Don’t let him shoot him. Please don’t let him shoot him.'”
Next to the party? Deputy Tim Mateski, approximately one minute after Gerba’s arrival.
“Like Gerba,” Fisher writes, “‘Mateski drew his gun and began screaming commands as soon as he arrived, including expletives and orders like ‘drop the kife or you’re gong to die,’ and ‘drop the (expletive) knife.’ Numerous witnesses described Mateski as ‘frantic and excited and only pursu(ing) a course of screaming commands at Luke.’ Tony Morales ‘implored the officers to calm down and told them that Luke was only threatening to hurt himself.”
The deputies ordered everyone inside to isolate the 18-year-old. When Tigard Police Officer Andrew Pastore arrived with a beanbag shotgun, Mateski ordered him to beanbag Glenn. Pastore complied, unleashing all six beanbags. Glenn, struck several times, “began to move away from the beanbag fire toward the alcove between the house and garage … in the most obvious line of retreat from the fire.”
But, Fisher quickly adds, Mateski and Gerba had “independently determined that if Lukus made a move toward the house with his parents inside, they would use deadly force.”
And so they did, firing 11 shots, eight of which struck Glenn, less than four minutes after Gerba’s arrival: “Lukus bled out and died on his grandmother’s porch.”
In decisive fashion, the Court makes clear why it remanded the case for trial, quoting testimony from witnesses:
* “By all accounts Lukus was suicidal on the night in question and the threats of violence known to the responding officers focused on harming himself rather than other people.”
* “When Officer Gerba arrived on scene, Lukus was standing outside his home talking with his parents and friends, all of whom stood near him. He was ‘not in a physical altercation with anyone,’ ‘he was not threatening anyone with the knife,’ and ‘no one was trying to get away from him.'”
* “Accordingly, a jury could conclude that at the time Pastore arrived with the beanbag gun approximately three minutes into the encounter, there was little reason to believe Lukus could have done any immediate harm to anyone.”
* “No one contends that Lukus tried to flee before officers shot him with the beanbag gun. Whether Lukus was ‘actively resisting arrest’ is more complicated. Significantly, ‘he did not attack the officers’ or anyone else, nor did he threaten to do so at any point while officers were on the scene … Rather, he stayed in the same position from the time the officers arrived and took no threatened actions (other than noncompliance with shouted orders).”
* “We also consider whether officers gave a warning before employing the force … It appears that the only warning given immediately before the beanbag shotgun was fired was when Pastore yelled ‘beanbag, beanbag.’ Possibly, Lukus did not know what this statement meant, or perhaps even what a beanbag shotgun was. The officers conceded that after being hit with the beanbag rounds Lukus ‘appears surprised, confused, and possibly in pain,’ and Lukus may even have thought he was being shot at with live lethal rounds given the officers’ previous threats of deadly force. Confusion regarding whether his life was in immediate danger may have led Lukus to seek cover rather than surrender.”
“Balancing these various considerations,” Fisher concludes, “we hold that the district court erred in granting summary judgment on the constitutionality of the officers’ use of force. We recognize that the officers have offered evidence that could support a verdict in their favor. 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 was not permitted to act as a factfinder. The circumstances of this case can be viewed in various ways, and a jury should have the opportunity to assess the reasonableness of the force used after hearing all the evidence.”
And I can’t wait until we do.