“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Ninth Circuit judge Mark Bennett argued in dissent that the court should effectively reverse a jury verdict and grant qualified immunity to a police officer who shot and killed a man inside the home he lived in with his father. The majority rejected Bennett’s view and largely affirmed the district court judgment in its September 2020 decision in Lam v. City of Los Banos.

 Sonny Lam lived in a house in Los Banos California with his 80-year-old father, Tan Lam. Sonny was “very frail,” had type 2 diabetes, and a “history of mental health issues.”  He had stopped taking his medication and one day became very agitated, swearing at and attempting to hit his father, who went to a neighbor’s house to call 911. Tan Lam hoped that police would take his son to a hospital for treatment.

When Officer Jairo Acosta arrived, he and Tan Lam went into the house to look for Sonny. They found him in his bedroom, but he yelled for Acosta and his father to leave. Acosta grabbed Sonny’s arm to get him to leave the room, but Sonny resisted. At some point after they all had moved to the main hallway, Sonny grabbed a pair of scissors. Even though Acosta told him to drop them, Sonny stabbed Acosta in the left forearm, causing a small puncture wound, and Acosta shot Sonny in the right calf. Tan Lam questioned why Acosta shot his son, and the two of them backed away from Sonny down the hallway. Without any warning, Acosta then shot Sonny in the chest. Sonny was taken to a hospital but died during surgery.

Tan Lam filed suit, contending that excess force was used against his son because of the shot from Acosta that killed him. The case against Acosta went to trial before a jury. The jury specifically found that Acosta had retreated from Sonny after firing the first shot and that Sonny “did not approach Acosta with scissors” before Acosta shot and killed him. The jury found in favor of Tan Lam and awarded him $2.75 million in damages. Acosta unsuccessfully tried to get the judge to set aside the verdict and then appealed.

In an opinion by Chief Judge Sidney Thomas, the Ninth Circuit largely affirmed. Although it found that the trial court might need to reduce the damages award somewhat because there was insufficient evidence to support Tan Lam’s claim that Acosta had acted “with a purpose to harm unrelated to a legitimate law enforcement objective,” the majority rejected Acosta’s claim that he should have been granted qualified immunity. There was clearly sufficient evidence to support the jury’s finding that “Acosta’s use of deadly force was unreasonable,” the majority explained, and the law was “clearly established” than an officer cannot “constitutionally kill a person who did not pose an immediate threat’ as in this case. The majority also rejected Acosta’s claim that the court erred by admitting evidence of his prior diagnosis of PTSD, explaining that Acosta did not properly object during trial and that it was not “plain error’ to admit the evidence.

Trump judge Bennett dissented. He claimed that Acosta should have received immunity because his conduct did not violate “clearly established law,” asserting that the cases relied upon by the majority were not specific enough and that they would have had to point to a case involving “a one-on-one confrontation, in a confined space, in which a suspect used a deadly weapon to wound a police officer, was not disabled by a first shot, and the deadly shot was fired very shortly after the first.” Bennett also maintained that the admission of the PTSD evidence was “plain error” because the diagnosis had occurred two years ago and was “irrelevant to his ability to perceive and react reasonably” in this case.

Chief Judge Thomas explained what was wrong with these claims, which were also raised by Acosta. Even if more specificity was needed on the “clearly established” issue, Thomas explained, the proper question was whether it was clearly established that a police officer cannot “shoot a mentally ill man in deteriorating health in his own home who – though previously armed – was incapacitated and no longer posed a threat.”  Thomas cited several similar cases, from the Ninth Circuit and elsewhere, that “clearly established” that the use of fatal force by police was improper under such circumstances. As to the PTSD evidence, the majority went on, it was clearly within the trial court’s discretion to determine that the evidence was relevant to Acosta’s credibility and ability to “accurately perceive and recall” what happened when he shot Sonny Lam, and ample precedent made clear that evidence concerning a person’s psychological condition was relevant and admissible “even when there was an interval of several years” between the diagnosis and the events in question. In short, there was no good reason to disturb the jury’s verdict.

Unlike in too many other cases involving police violence, the justice system provided some accountability to Tan Lam for the police killing of his son. If it had been up to Trump judge Bennett, however, this would have been yet another case where Trump judges prevented such accountability.