(CN) — Whether Patrick Harmon was shot by Salt Lake City Police because he was brandishing a knife, or if he was killed while unarmed, should be decided by a jury and not by a court granting the officer qualified immunity, Harmon’s family told a 10th Circuit panel Wednesday.
Harmon was pulled over in Salt Lake City for not having a taillight on his bike in 2017. At first Harmon gave officers fake names but eventually told them he had an outstanding warrant. According to a previous ruling in the lawsuit filed by Harmon’s family, as police attempted to handcuff Harmon, he bolted and then turned around and ran back at the officers, knocking one of them down. One officer named Clinton Fox then pulled his gun. Harmon then dropped his left arm, while keeping his right arm near his chest.
Fox, according to the ruling, yelled “I’ll fucking shoot you,” then fired three shots at Harmon, killing him.
Only about six seconds elapsed between when Harmon started to flee and when Fox killed him, but Fox said he saw Harmon brandish a knife. A knife was found near Harmon’s body, but his family argued that it wasn’t his.
In 2019 Harmon’s family filed a wrongful death lawsuit against Fox, claiming he used excessive force and that Salt Lake City was liable for Fox’s actions.
“This case involves an all-too-familiar narrative: an unarmed black man shot to death by law enforcement without justification,” Harmon’s family say in their original complaint.
A federal judge dismissed the case in 2020. The 10th Circuit Court of Appeals revived the case the following year, finding that there was enough evidence for the case to survive the Fox’s qualified immunity motion.
In 2023, a different federal judge dismissed the family’s claims again and remanded the state claims to state court. On Wednesday, the family presented their arguments to the 10th Circuit in Denver on appeal of the second dismissal.
An attorney representing the family told the panel the presence of a knife does not necessarily mean a reasonable jury will find Harmon was holding the knife — especially since Harmon’s hands were plainly visible in footage of the incident.
“No knife is visible,” the attorney, Casey Dinaro, said after judges asked if the evidence showed conclusively that Harmon did brandish a weapon.
The court has to also consider if Harmon made hostile motions towards the officers, like cutting, stabbing or slicing motions, Dinaro said. But Salt Lake City attorney Katherine Nichols urged the panel to reject that argument.
“The United States Constitution did not require officer Fox to gamble with his own life to see if Mr. Harmon was going to take one single step to stab him,” Nichols said.
The court should consider Fox’s qualified immunity request — the controversial legal principle that shields government officials from liability unless they violate laws deemed to be “clearly established” at the time — as stemming not from what Harmon intended to do, but what a reasonable officer like Fox thought he would do, she added.
“It’s an objective standard. We don’t ask what was Mr. Harmon actually doing or actually intending to do. We ask what a reasonable officer standing there believed,” Nichols said.
The 10th Circuit’s previous ruling came at the motion to dismiss stage, which means the court had to accept as true many of Harmon’s claims. But in the summary judgement stage, the court has to rule on evidence presented, Nichols said. Body camera footage from the day shows Harmon was in what Nichols described as an “athletic stance,” not in a fleeing position.
After reviewing the body cam footage and stills from the video, some of the panel questioned whether Harmon was actually in an “athletic stance” and whether if he could have been shot in the back if he was. They also questioned whether they actually heard Harmon say he was going to cut officers in footage like officers claimed. Another officer testified that he didn’t see a knife even though he was looking at Harmon’s torso, they noted.
“The fact that one officer didn’t see and perceive everything that happened that another officer saw does not create a genuine dispute of fact,” Nichols said. She noted the Supreme Court has found qualified immunity’s reasonableness mandate is based on the testimony of the officer who shot a suspect, and Fox testified he thought Harmon had a knife.
When asked by the panel if her argument means that whenever a cop shoots someone and says they had a weapon, they’re protected by qualified immunity, Nichols said no, but the “totality of circumstances” in this case, including the officer seeing a knife on the ground and Harmon attempting to escape from arrest should be taken into consideration.
In response, Dinaro said courts have found police can’t just shoot people who are not dangerous and not armed.
U.S. Circuit Judge Richard Federico, a Joe Biden appointee and U.S. Circuit Judges Scott Matheson and Robert Bacharach, both Barack Obama appointees, made up the panel. They did not indicate how or when they will rule.