Mesa loses round in suit over fatal shooting by cop

Jul. 8—A Mesa cop used excessive force when he fatally shot an unarmed man during a traffic stop and is not entitled to qualified immunity, the 9th U.S. Circuit Court of Appeals ruled last week.

Mesa residents Patricia and Caesar Lopez sued the City of Mesa and Officer Heath Carroll over the death of their 21-year-old son Anthony Lopez in July 2018.

"The case is not final, and we don't comment on pending litigation," city spokeswoman Ana Pereira said.

Court of appeals decision usually are the final word in a case, unless it sends the case back to the trial court for additional proceedings or the parties petition the U.S. Supreme Court for a review — which is not automatic.

According to Pereira, Heath no longer works for Mesa Police. She did not respond to additional questions, including if he was terminated and when he left the job.

Attempts to reach the Lopezes' attorney were not successful and Patricia Lopez did not respond by deadline to a request for comment.

The 9th Circuit said the district court "correctly denied qualified immunity on the plaintiffs' Fourth Amendment claim because, construing the facts in the light most favorable to plaintiffs, we conclude that every reasonable officer in Carroll's position would have recognized that shooting and killing Lopez constituted excessive force."

According to court documents, six years ago on a Saturday — 3 a.m. July 21 — Lopez was near the intersection of Dobson Road and Southern Avenue when Officers Heath and Jena Thranum stopped.

Thranum saw a Kia Sorento stopped at an otherwise deserted intersection, headlights off and rear windshield wiper oscillating, court records said. Carroll arrived in a separate cruiser.

Lopez was seated in the driver's seat, windows down and engine running. He admitted to officers that he had been drinking.

Testing later determined Lopez's blood alcohol concentration neared 0.2%. In Arizona an 0.08% BAC is the threshold for drunk driving, according to documents.

Lopez failed to obey Thranum's command to hand over his car keys. Instead he put one hand on the steering wheel and another on the gear shifter.

Carroll yelled for Lopez not to put his vehicle in drive. He then drew his taser and thrust his arm through the open passenger window and aimed the taser at Lopez.

Lopez reversed his vehicle and struck Carroll's outstretched arm and knocked him to the ground before crashing into Thranum's patrol vehicle, records showed.

Carroll scrambled to his feet and fired nine shots through the passenger window, eight of them striking and killing Lopez. Thranum, meanwhile, had retreated behind her patrol vehicle out of danger and out of Carroll's line of sight.

Carroll was treated at the hospital for injuries, which included bruises to his foot.

Carroll testified that he shot Lopez to protect Thranum and himself, "because he mistakenly believed that Officer Thranum had been injured and was under Lopez's vehicle," the 9th Circuit ruling read.

Carroll also testified that he believed he could be further injured if Lopez drove his car into him.

"We have reviewed videos of the incident from the officers' bodycam, and we conclude that a reasonable trier of fact could find Officer Carroll's testimony to be not credible," the ruling said.

"Construing the facts in the plaintiffs' favor, as we must at this stage of the proceedings, we hold that any reasonable officer would have realized that use of deadly force was unreasonable.

"It's undisputed that Carroll did not see Officer Thranum fall or hear her cry out. Officer Thranum never put any limbs inside Lopez's car and moved straight backwards when Lopez reversed."

Lopez was driving just 6 mph when he knocked into the police cruiser and "the video shows that the car was not in motion when Officer Carroll shot Lopez," the ruling added.

The court also stated that a reasonable officer would have seen that Lopez did not pose any immediate danger to either officer.

Circuit Judge Kenneth Lee issued a dissenting opinion from his two colleagues.

Lee said he agreed with the majority's decision that a reasonable jury could find that Carroll used excessive force when he shot Lopez, given that he was reversing fairly slowly.

But he disagreed that "the violation was clearly established at the time of the incident."

While Lopez was backing up slowly, his car still struck Carroll, hitting his arm and causing him to drop his Taser, Lee wrote, noting that Carroll resorted to his firearm after the less-lethal weapon fell out of his hands.

"Here, Lopez hit Officer Carroll with the car and reversed in Officer Thranum's direction until he collided with her police cruiser," Lee said.