(CN) — An Oklahoma police officer asked the 10th Circuit on Tuesday to reverse a federal judge’s denial of qualified immunity after he shot a nude mentally disturbed teenager who had broken into a stranger’s home while fleeing police.
After consuming marijuana laced with PCP, 17-year-old Isaiah Lewis had an argument with his girlfriend over conspiracy theories at 10:30 a.m. on April 29, 2019. A food delivery driver suggested a neighbor call the police, and the neighbor falsely reported Lewis was beating up his girlfriend.
The first officers arrived around 1 p.m. to find Lewis nude and running through the woods. The officers continued to tail Lewis from a distance.
In another patrol car, traffic officer Denton Scherman was training with Sgt. Milo Box and decided to pursue Lewis. Seeing law enforcement approach, Lewis broke into the nearest home. The officers fired a Taser at Lewis three times, then backed him down a hall where Box fell and Scherman shot him four times.
Lewis was dead within 32 seconds of meeting Scherman.
Lewis’ parents sued the city of Edmond, Oklahoma, and the two officers. A federal judge granted qualified immunity to Box, but denied it to Scherman after finding a reasonable jury could conclude Lewis’ rights had been violated.
On appeal, Scherman’s attorney Kathryn Terry accepted the facts as laid out by U.S. District Judge David Russell but disputed the conclusion that Lewis didn’t pose a threat when he was shot.
“Isn’t it clearly established that you can’t use deadly force against someone who is clearly disabled and can’t physically pose a threat to you?” asked U.S. Circuit Judge Harris Hartz, a George W. Bush appointee.
Terry replied that Scherman saw Lewis as a threat.
“It wasn’t readily apparent that Mr. Lewis was subdued, there were confined quarters, he was still coming, windmilling, he was advancing as the court factually found,” Terry, of the Oklahoma City firm Phillips Murrah, said.
Even if a jury found Lewis’ rights had been violated, Terry argued Scherman couldn’t have known he was violating them since there weren’t any comparable cases.
Senior U.S. Circuit Judge Bobby Baldock, appointed by Ronald Regan, asked whether Scherman might be granted qualified immunity for the first shot, if Lewis was found to pose a threat.
Terry argued all of the shots were justified, while the Lewis family’s attorney Devi Rao argued none of them were.
“I think the best reading is that the district court denied qualified immunity for all of the shots,” said Rao, who practices with the Roderick & Solange MacArthur Justice Center. “The district court’s conclusion is that Scherman isn’t entitled to qualified immunity and doesn’t parse out the shots.”
After shooting Lewis once, Scherman claims the teen continued to advance, prompting three more shots. Rao however described Lewis’ movements as those of a mortally wounded man, trying to get help.
“The change between threat and no-threat changed very quickly in this case, but the question is for the jury,” Rao concluded. “The jury needs to look at the facts from both sides and to decide what they think happened that afternoon at Gray Fox Run.”
U.S. Circuit Judge Carolyn McHugh, a Barack Obama appointee, rounded out the panel via a video feed from Salt Lake City.
“I really wish all the counsel who appeared before us were as candid about the record as both of you have been, it’s very helpful to the court and we appreciate it,” Hartz said before calling the next case.
The panel did not indicate when or how they would decide the case.
from Courthouse News
