Attorneys with the City of Portland believe it's plausible to argue that 17-year-old Quanice Hayes died on February 9, 2017 because he burglarized a house and lied to police officers about it—not because a Portland cop shot him three times with a AR-15 rifle.
On Wednesday, US District Court Judge John Acosta pushed city attorneys to explain why Hayes' death "was the sole and exclusive fault of Mr. Hayes," an argument that attorneys representing Hayes' family in a civil rights lawsuit want to throw out.
"Under their logic, officers have the right to use deadly force against anyone simply because they were engaged in felonies," said Jesse Merrithew, one of the attorneys representing the Hayes family. "That's ludicrous."
Hayes was killed by Portland officer Andrew Hearst after being cornered by a group of officers in an alcove outside of a Northeast Portland house. At the time, Hayes was a suspect in an attempted carjacking and armed robbery—accusations that haven't been contested by his family. After officers tracked him down, Hayes followed their orders to crawl on the ground out of the alcove, towards Hearst. But when Hayes reached down to his waistband, Hearst fired his rifle, hitting Hayes in the head and torso.
In court testimony, Hearst said he believed Hayes was reaching for a gun. Other officers testified that Hayes' pants had been falling down when they cornered him, suggesting he may have been just trying to pull them up. Only after Hearst fatally shot Hayes did officers find a fake gun next to his body. A Multnomah County grand jury declined to indict Hearst for killing Hayes.
The lawsuit, filed by Hayes' family in 2018, accuses Hearst of using excessive force against Hayes and blames the City of Portland for failing to train officers who are interacting with suspects they believe to be armed. In response, city attorneys have presented a laundry list of reasons why Hayes' actions leading up to his death—and the actions of his mother—are to blame for his death.
Attorneys representing the Hayes family have asked that Acosta make it impossible for the city to rely on these arguments when the case goes to trial.
In a November 2019 response to the litigation, city attorneys presented a list of 17 reasons explaining why Hayes caused his own death. The document points to Hayes' burglaries of a house and a vehicle—and his decision to lie to officers about it—as reasons for why he was killed. Attorneys also argue that Hayes' decision to carry a replica gun and to use it to frighten a man sitting inside the vehicle he robbed led to his death.
"If Mr. Hayes had never robbed [the man in the vehicle] with a handgun, it is quite likely the police response would be very different," said City Attorney William Manlove, at the Wednesday court hearing. "If he had never done the things listed [by the city], this particular outcome wouldn’t have happened. It was his conduct that added to and was part of the risk he created."
Acosta zeroed in on the city's accusation that Hayes acted negligently by "failing to sleep properly," because lack of sleep can alter a person's judgment.
"Negligence would be failing to do something for his or her own safety," said Acosta. "The night before, when Mr. Hayes fell asleep, how did he know the next day he was going to be confronted by armed police officers and be shot? How is it negligent to not sleep enough? I didn’t sleep well last night. Am I negligent because I didn’t sleep well last night?"
Manlove paused, and responded: "It depends on what you were planning to do this morning. If you planned to drive a motorcycle from here to Pendleton, maybe that would be negligent."
J. Ashlee Albies, another attorney representing the Hayes family, argued that many of the city's accusations were irrelevant, since they include information Hearst was unaware of at the time he shot Hayes. She also opposed the idea that felonious conduct on its own was enough probable cause for an officer to kill someone.
Albies' arguments were in line with the findings of independent investigators who, in 2019, concluded that the Portland Police Bureau (PPB) failed to acknowledge officer errors in its internal review of Hayes' death.
“Instead,” the report reads, “[PPB] reached the fatalistic conclusion that Mr. Hayes’ actions drove the outcome.”
Later in the hearing, Acosta questioned city attorneys' claim that Hayes' mother, Venus Hayes, was partially to blame for her son's death because she failed to "reasonably supervise and monitor Quanice Hayes' behavior."
Manlove pointed to evidence that Venus had admitted to the court that she had been struggling to control her teenage son's behavior prior to his death. Because she knew Hayes was acting out, the city argued, it's reasonable to assume Venus "could foresee he would go out and commit these crimes."
Albies quickly rejected that argument.
"The city argues that a parent's failure to supervise a child led to the child being shot by police," said Albies. "The framing of this defense is entirely objective and offensive."
Acosta did not rule Wednesday on the request to throw out the city's accusations against Hayes and his mother. He did not give a timeframe for when he plans on making that ruling.
Venus attended the Wednesday hearing with her children and other family members—including Hayes' grandmother Donna Hayes, who became active in police accountably activism after her grandson's death.
"I think the judge recognized that this argument is something [Manlove] is grasping for, and I think he knows it too," said Donna, speaking to the Mercury after the hearing.
"I'm hoping for my daughter," she continued. "Nothing can pay for the loss of her son. But if we can give her a little bit of justice... that's something. The city has to do right. To sit here and blame her for pulling Hearst's trigger—that's not right."
Venus told the Mercury that she has sympathy for Manlove, since she knows he's simply doing the job the city's asked him to do. But that doesn't mean his accusations didn't hurt.
"To blame me for my son’s death, that's hard to hear," she said. "That is hard."