A King County sheriff’s deputy who fatally shot a 20-year-old high-school student in 2017 who was allegedly brandishing an object that turned out to be a ballpoint pen will be allowed to seek immunity from liability in the 9th Circuit Court of Appeals, a federal judge ruled Tuesday.

The ruling by U.S. District Judge Thomas Zilly means a trial on a $10 million civil-rights lawsuit filed by the family of Tommy Le, scheduled to begin Monday in Seattle, will be delayed indefinitely.

Zilly denied a motion by the family’s attorneys seeking to have an appeal sought by Deputy Cesar Molina declared “frivolous,” allowing Molina to take the issue of whether the judge should have granted him immunity from liability to the appeals court. Zilly earlier had declined to grant Molina the benefit of “qualified immunity,” a legal doctrine that routinely protects police officers from liability in instances where they have to make split-second, life-or-death decisions under often difficult and murky circumstances.

While the judge wrote in a five-page opinion that he continues to believe that “genuine disputes of material fact” regarding whether Le was armed and posed a threat to the deputy or others precluded him from extending qualified immunity to the deputy, he could not say that the deputy’s appeal was “frivolous” under the law. Zilly  therefore determined Molina had the right to appeal his decision before the case goes to trial. Zilly’s earlier ruling would have allowed a jury to determine the issue.

Le was carrying a pen when he was shot by Molina after several Burien residents reported an armed man was wielding a sharp object.

Xuyen Le, Tommy Le’s aunt, said Tuesday in a statement that the family found the trial delay “disappointing.”

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“We continue to have faith that the trial will be allowed to proceed, and there will be justice,” she said. 

An email seeking comment from Molina’s attorney, Tim Gosselin of Tacoma, did not receive an immediate response. His voicemail box was full.

Le, of Burien, was shot and killed by Molina the night of June 14, 2017, after several residents called 911 to report a man acting erratically and purportedly threatening them with what initially was reported to be a knife, although one person later said Le was carrying something “pointed.” One resident retrieved a handgun and fired it into the ground near Le to frighten him off.

Le was reportedly disoriented and yelling that he was “the creator,” according to reports. An autopsy showed Le, who was set to graduate from high school the following day, had the hallucinogen LSD in his system.

Molina was the third deputy to arrive and, according to his sworn deposition, confronted Le and shot him twice in the back 105 seconds after his arrival. In that period, both Molina and another deputy, Tanner Owen, unsuccessfully tried to incapacitate Le with Tasers before Molina shot him, according to reports.

Molina later said that Le charged him with a “sharp, pointed object” clenched in his fist and then veered toward Owen and a group of civilians when he fired. Molina denied he shot Le in the back, although the autopsy showed otherwise.

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Attorneys for the family argue the internal investigation into the shooting was a “sham” and contained misleading and erroneous details that led the department to clear Molina of wrongdoing.

In briefs filed in the court case,  they allege there is evidence that at least one of the bullets was fired into Le’s back while he was on the ground and that a bullet recovered from his body showed signs that it had been tampered with to obscure that conclusion. They’ve also stated that the Paper Mate ballpoint pen Le was allegedly using as a weapon is the same kind used by the sheriff’s office and have implied it was planted at the scene.

The family’s attorneys also question why deputies didn’t simply grab and tackle Le, who was 5-foot-4, weighed 120 pounds and was barefoot and clad only in boxer shorts and a T-shirt. That issue was raised by Molina’s boss, then-Sheriff John Urquhart, who reportedly told Le’s family and, later, a group of Asian American community leaders, that that’s what he would have done.

Zilly has issued several rulings that have gone against the deputy and county as the case headed toward trial.

Zilly has ruled that the county itself can be held responsible if a jury determines the post-shooting investigation was intentionally flawed and endorsed by sheriff’s officials. Zilly noted in his ruling Tuesday that he could allow that issue to go to trial separately, but chose not to.

Jeff Campiche, one of the family’s lawyers, noted that Zilly’s decision “only means a delay in this trial. A jury should and will eventually determine the true facts surrounding the deadly shooting of Tommy.”

“We believe the 9th Circuit will agree with Judge Zilly’s decisions denying Molina immunity, and King County’s multiple motions to dismiss this case,” Campiche said in a written statement.