We thought there was something funny about the officer's testimony about his fear while being trapped in a rapidly accelerating vehicle, especially considering the glacial pace of a Mazda MPV at top speed. Judge Clifton thought so too, tossing out 0-60 times like he was writing for Car and Driver, rather than a dissent.
Officers Matthew Ellis and Officer Daron Wyatt followed Adolf Anthony Sanchez Gonzalez after he allegedly made an illegal left turn and nearly collided with their cruiser. The van also had apparently been involved in a recent narcotics stop. Moments later, the van swerved, giving the officers justification to pull the vehicle over.
The officers said that he resisted arrest, made "furtive" movements to reach between the seats, and was holding a plastic baggie in his hand, possibly as part of an attempt to eat the evidence.
They beat him with flashlights. They also tried a sleeper hold. And then, when he shifted into drive and took off, with one of the officers still in the van, Officer Wyatt shot Gonzalez at point blank range.
Previous Panel's Split
The majority said that the officers didn't have time to make "measured reactions," due to the possible attempt to destroy evidence of what they believed was a felony-grade drug offense. And, if the facts alleged are true, they were permitted to use force under the three-factor Graham test.
And when the van took off, the majority felt that Officer Wyatt acted reasonably when he fired his weapon out of fear for his life, due to the rapidly-accelerating vehicle.
One problem though: despite the acceleration, the van only traveled fifty feet. The majority called this a "minor inconsistency," not an issue for a fact-finder.
Judge Clifton, in dissent, cited zeroto60times.com's listings for the 1992 Mazda MPV, which it says takes 11.2 seconds to reach 60mph. Officer Wyatt estimated that the van was going upwards of 55 mph, yet a van going 50 mph covers more than 73 feet per second.
Wyatt said that the van moved for "less than ten" and possibly "less than five" seconds, but the van only moved 50 feet, putting its rate of speed at 3.4mph (assuming 10 seconds).
His testimony was factually impossible, so much so that we and Judge Clifton saw this as way more than a "rough estimate," as the majority asserted -- it's a triable issue of fact. From the en banc rehearing grant, the majority of judges on the Ninth Circuit may have been skeptical as well.
- Gonzalez v. City of Anaheim - Vacated Panel Opinion (FindLaw's Caselaw)
- No JMOL, Immunity for Cop Who Emptied a Clip in Unarmed Suspect (FindLaw's Ninth Circuit Blog)
- U.S. v. Apel: Eccentric Protesters Meet Military in SCOTUS Appeal (FindLaw's Ninth Circuit Blog)