A wrongful death lawsuit over the2017 Chico police shooting of a Ventura man was reinstated Tuesday by a federal appeals court.
A panel of the 9th U.S. Circuit Court of Appeals reversed and vacated rulings by a lower court judge who threw out claims brought by the family of 34-year-old Tyler Rushing.
The lower court judge, U.S. District Judge Morrison England Jr., last year granted motions for summary judgment in favor of the city of Chico and involved police officers, closing the case before it could reach a jury.
England held the officers’ “reasonable behavior” in the shooting and tasering of Rushing justified ending the case without a trial, according to his signed July 2020 order.
The 9th Circuit panel called that holding “erroneous,” focusing on the moment an officer shot Rushing with a stun gun, according to the panel’smemorandum disposition.
The panel found “genuine disputes of material fact exist” that could lead a jury to conclude that the officer, Alex Fliehr, “violated a right of Rushing’s when he tasered Rushing in the back over one minute after Rushing fell face down on the floor after being shot twice” by a separate officer.
The appeals court sent the case back to U.S. District Court for the Eastern District of California in Sacramento for further proceedings, including addressing whether any city defendants other than Fliehr may be liable for the tasering.
Chico City Attorney Vincent Ewing declined to comment on the ruling.
Rushing’s father, Scott Rushing, called the panel’s decision a “win for Tyler.”
“The officers used a taser on Tyler, after he was already badly wounded, ending his life,” Scott Rushing said in an emailed statement. “The appellate court held that the use of force was excessive and unreasonable and that it violated clearly established Fourth Amendment law. The court thus remanded the case to the district court for trial.”
He added, “My wife and I, and his estate, can now have their day in court as we seek to vindicate Tyler and obtain some measure of justice for his unnecessary killing at the hands of the police.”
Elsewhere in its decision, the 9th Circuit panel upheld the lower court’s ruling in favor of AG Private Protection and security guard Edgar Sanchez, who shot Rushing once in the chest after Rushing stabbed him with a broken glass pot.
The panel also upheld the lower court’s ruling in favor of the county of Butte and deputy sheriff Ian Dickerson, noting Dickerson directed his police dog to bite Rushing after Rushing struck and cut a police officer with a porcelain shard of a broken toilet.
Another police officer, then-Sgt. Scott Ruppel, shot Rushing twice during the July 23, 2017, nighttime encounter at Mid Valley Title and Escrow Company in downtown Chico.
The panel also found that a jury could not find Ruppel’s shots unreasonable. The panel concluded “Rushing posed a threat that was sufficient to justify Ruppel’s first shot.” It added that the “rapid succession” of the first and second shot, which was fired two seconds later, favored the officer under the law.
However, the panel found a jury could find Fliehr’s tasering of Rushing – which happened over a minute after Rushing fell to the floor after being shot by Ruppel – unreasonable.
“A genuine issue of material fact exists concerning the location of Rushing’s right hand and his motionlessness after falling to the floor,” the panel found.
The panel said body camera video shows Rushing’s right hand was extended away from his torso and, at most, “partially concealed by a bathroom furnishing, which contradicts Fliehr’s claim … that Rushing ‘fell face forward on the ground with his left arm out and his right arm underneath him.’”
The video, the court said, also conflicts with Fliehr’s claim that Rushing “flinched,” moving slightly after falling to the floor.
“Though not entirely clear,” the panel said, “the video would permit a reasonable jury to conclude that Rushing remained motionless for over one minute before Fliehr tasered him in the back.”
According to the 9th Circuit’s decision, “If the jury concluded factually that Rushing did not pose an immediate threat because after being shot three times he laid still, face down, with his hands visible, in a pool of his own blood, any reasonable officer should have known that repeated tasings violated clearly established law on excessive force.”
The U.S. District Court in Sacramento indicated Thursday it received the appellate court’s decision, reopening the case. No hearings were immediately scheduled.
