Nearly a decade after a Tacoma police officer shot and paralyzed a man who led police on a “low-speed chase” when he wouldn’t pull over for driving without his headlights, an excessive-force lawsuit filed by the man could be headed to trial.
In a Feb. 3 ruling, the 9th Circuit Court of Appeals refused to grant immunity to the officer and sent the case back to U.S. District Court Judge Ronald Leighton, who had arrived at similar findings and refused to dismiss the claims three years ago. The city of Tacoma’s appeal was rejected in a unanimous decision by a three-judge panel from the San Francisco-based federal appellate court.
The lawsuit was filed in 2013 and alleges that Tacoma police Officer Kristopher Clark had no justifiable reason to fire 10 rounds into the side and back of Than Orn’s slow-moving SUV as it tried to swerve around his patrol car, which was blocking the exit from an apartment parking lot.
According to the pleading — which included statements from other officers on the scene — Clark disregarded orders broadcast by a supervisor and exited his vehicle. Clark said Orn accelerated and tried to run him down before he fired. He kept firing as the vehicle passed, he said, because he feared for the life of his partner, who the court said had stayed in his car and was not in danger.
Clark was cleared of wrongdoing by the TPD, but was told to undergo training. The department revised its chase policies after a review of the incident, according to court documents.
Orn was charged with assault on a police officer and felony eluding. However, a jury acquitted him of those charges at trial. He was convicted of misdemeanor failing to obey a law enforcement officer and fined $250.
Orn was struck several times in the back, shoulders and neck. One round severed his spinal cord, immediately paralyzing him from the chest down, according to the lawsuit. The claim states the injuries have made it impossible for Orn, a now 41-year-old father of three, to work and has resulted in “mental and emotional injuries including the collapse of his marriage.”
The judges found that a jury should hear evidence that Clark placed himself in a potentially dangerous situation by disobeying orders and making poor tactical decisions, and then unnecessarily used deadly force to get out of it. Moreover, the judges said Clark should have known that when he fired he was violating Orn’s 4th Amendment right to be free from unreasonable seizures.
“In the end, this is not a case in which the legality of the officer’s conduct falls within the ‘hazy border between excessive and acceptable force,’ ” wrote Judge Paul Watford for the 9th Circuit Panel, quoting from court precedent. He was joined by Judge Marsha Berzon and Judge Danny Boggs, who normally sits on the 6th Circuit Court of Appeals out of Cincinnati, Ohio.
Messages seeking comment from Orn’s attorney, Loren Cochran, were not immediately returned Thursday. Assistant Tacoma City Attorney Jean Homan said the city doesn’t normally comment on pending litigation.
Orn had been on his way home about 8:30 p.m. Oct. 12, 2011, driving his wife’s Mercury Montero sport utility vehicle (SUV), when a Tacoma police sergeant in an unmarked vehicle going in the other direction noted Orn’s headlights weren’t turned on. The sergeant turned around, turned on the emergency lights mounted behind his windshield, and attempted to pull Orn over, according to court documents.
What ensued was a bizarre 15-minute “low-speed chase” in which Orn did not exceed the speed limit and stopped at signals and stop signs, but refused to pull over. At one point, he drove around a set of spike strips officers were trying to use to disable his car. Based on car-registration information, officers determined he was heading toward his apartment at a complex near South 65th Street and Tacoma Mall Boulevard. Several officers headed to that site, including Clark.
At this point, according to court documents, at least a dozen police cars were trailing Orn as he pulled into the lot at about 5 miles per hour, slowly drove through it, and then drove over a curb to try to get around Clark’s patrol SUV, which he was using to block the exit.
Orn, according to court documents, said he had just smoked crack cocaine and was worried he would be arrested and wanted to get home, although police at the time were unaware drugs were involved. Court documents state that Orn was not wanted, did not have a weapon, and that his only crime to this point was failure to obey a police officer.
The panel refused to dismiss a claim alleging the Tacoma Police Department and, by extension, the city itself is liable for Orn’s injuries by failing to properly train and supervise its officers. The panel also rejected the city’s argument that the officer who shot Orn, Kristopher Clark, had reason to fear for his or anyone else’s life when he fired at Orn’s SUV, according to district and appellate-court documents.
In his 2018 order that was upheld by the 9th Circuit’s opinion, Judge Leighton said Clark’s story did not jibe with the statements of other officers, who said Orn’s slow-moving vehicle never was poised to run Clark down. Ballistic evidence contradicts Clark’s story that Orn had turned and accelerated at him as he fired, the judge added.
“The evidence supports the argument that Than Orn’s vehicle was not a threat to Kristopher Clark at any point when he fired because Orn’s vehicle was already passing by,” Leighton said.
The case has been delayed several times and has been on hold since 2018 when the city filed its appeal.