A sheriff’s deputy who shot and killed a 20-year-old Burien student intends to appeal a ruling denying him immunity from liability in an upcoming federal trial over a civil rights lawsuit filed by the man’s family.

Deputy Cesar Molina has been joined in the proposed appeal by the King County Sheriff’s Office, which a federal judge has also said may be held liable in the June 14, 2017, death of Tommy Le. Le was shot in Burien after neighbors called 911 to report a disoriented man possibly brandishing a knife. Le was found to be grasping a Paper Mate ballpoint pen.

U.S. District Judge Thomas Zilly — who so far has denied efforts by Molina and the county to dismiss the lawsuit — has scheduled a hearing for June 4 on a series of pending pretrial motions and will address the appeal at that time. The judge must certify the appeal before it can be taken before a panel of judges on the 9th Circuit Court of Appeals. Le’s attorneys filed documents late Wednesday asking Zilly to deny certification and deem the appeal frivolous.

Otherwise, an appeal would likely require the judge to postpone a scheduled June 10 jury trial, in which Le’s family is seeking $10 million in damages.

Over the past several weeks, Zilly has issued a series of orders and rulings adverse to the deputy and the county as the case has approached the trial date, refusing to grant motions that would dismiss the case or immunize the county or Molina from liability.

Zilly has said there are “genuine disputes of material fact” about what happened in the roughly two minutes that passed between when Molina arrived at the scene and when he opened fire on Le. Three rounds hit Le — one in the wrist and two in the back — and several others struck nearby homes.

Advertising

The judge has said he wants the jury to decide what happened, and then he will determine whether Molina should benefit from “qualified immunity” — a provision of the law that gives police wide latitude in making split-second decisions to use deadly force in such instances.

The deputy and King County  contend the facts are sufficient to immunize the deputy and protect him from liability for Le’s death, and want the 9th Circuit to overrule Zilly’s finding.

Attorneys for Le’s family oppose the appeal, and want the case to go to trial, where they will argue that the deputy used excessive force when he shot Le — who was set to graduate from an alternative high school that night — thereby violating his civil rights and depriving his family of his companionship.

Telephone messages and emails seeking comment from attorneys representing Molina and King County were not returned Wednesday.

Zilly, in an order issued last week, said 9th Circuit case law is clear that police “may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because [the suspects] are armed. In this matter, whether Tommy Le was ‘armed’ is in dispute,” Zilly wrote in the ruling.

On the other hand, the law allows police to use deadly force if they reasonably believe their lives or others are at imminent risk, even if the individual turns out to be unarmed.

Advertising

Until those facts are settled, he ruled, he won’t rule on the issue of immunity.

The judge last week also allowed Le to pursue a so-called “Monell” claim that could hold the sheriff’s office liable if the jury finds Molina violated Le’s civil rights.

Le’s attorneys have argued that an internal use-of-force investigation that cleared the deputy of wrongdoing was a “sham,” and that the department violated its own policies because Sheriff Mitzi Johanknecht never reviewed or signed off on the final report.

Documents and sworn depositions filed with the court have shown the report  omitted significant details, including the fact that Le was shot in the back.

The report states and the family and public were initially told Le attacked the deputy with a knife, although no knife was found at the scene. While an initial police dispatch said the suspect was armed with a knife, a subsequent dispatch said the caller wasn’t sure what the object was except that it “was pointed.”

The use-of-force review also stated that another deputy standing next to Molina, Tanner Owen, was in fear for his life and was certain that the man “had a knife clenched in his fist” when the shots were fired.

Advertising

However, Owens’ sworn deposition testimony was that he did not feel threatened at that point, and did not see a weapon.

Both Owen and Molina attempted to use Tasers on Le that night, but without effect.

Molina said he fired when Le charged him with a “pointy object” in his hand, then veered toward Owen and several civilians in the area. “His back was never turned to me,” Molina said in a sworn deposition. An autopsy showed Le died from two gunshot wounds to the back.

The family argues that the deputies should have used less-lethal means, including simply tackling Le. Then-Sheriff John Urquhart told the family, and later a group of Asian American community leaders at a meeting for the Asian Pacific Directors Coalition, that’s what he probably would have done and questioned why Le was shot.

Clarifies name of Asian-American organization in final paragraph.