A federal judge is banning attorneys with the City of Portland from using an argument in court that blames Quanice Hayes' death by a Portland cop on actions Hayes took before he encountered the police in the early hours of February 9, 2017.
Hayes, 17, was fatally shot after officers responded to an attempted carjacking and armed robbery taking place Northeast Portland. They stopped Hayes as he was leaving a house he had allegedly burglarized near 82nd and Tillamook, and cornered him in an alcove, guns drawn. Hayes was on his knees, shuffling towards the officers with his hands raised when he reached towards his waistband. That's when Officer Andrew Hearst shot him three times with a AR-15 rifle. Only after Hayes died did officers discover a fake gun lying in a garden nearby.
Hayes' family sued the city in 2018, accusing Hearst of using excessive force against Hayes and blaming the City of Portland for failing to train its officers. In response, city attorneys presented a long list of reasons why Hayes and his mother, Venus Hayes, were solely responsible for Hayes' death. Those reasons include blaming Hayes for "failing to sleep properly" the night before, owning a replica gun, stealing items from a car and a house, and breaking a homeowner's alarm system. Attorneys blamed Venus for acting negligently by not properly supervising a minor she was the sole guardian to. City attorneys had proposed using these arguments in court when—and if—the civil lawsuit reaches a juried trial.
But US Magistrate Judge John Acosta isn't going to let most of those arguments stand.
If the [city's] allegations... made it reasonably foreseeable to Quanice Hayes that, among other things, stealing property and failing to get enough sleep risked the type of harm at issue—getting shot—then anyone who commits theft or burglary should reasonably expect not to be arrested, but to be shot," wrote Acosta in a Tuesday ruling. "That is not the law."
Acosta ruled that the majority of city's legal defense blaming Hayes for his death cannot be used in trial. He also struck the city's entire defense that accuses Venus of contributing to her son's death. (City attorneys dropped this defense themselves last Thursday). The only arguments Acosta is granting the city use in trial to defend Hearst are mostly based on actions that took place once Hayes actually interacted with officers on February 7.
Those permissible accusations against Hayes are "failing to discard" the replica gun before confronting police, "failing to explain" that the gun was a replica, "failing to obey" officer's commands to keep his hands away from his waistband, and "consuming or abusing" illegal substances earlier in the evening.
In his order, Acosta writes that this conduct may have "contributed to the city's negligence at the scene where Hearst shot Quanice Hayes, and the question of foreseeability is properly left to the jury."
This suggests that Acosta might avoid making a summary judgement—the term for when a judge believes the facts of a case are clear enough that the judge alone can rule on a verdict, instead of letting the case go before a jury. In short, Acosta's order increased the likelihood that the Hayes' case will go to trial.
It's still unclear when that trial would take place. The next pre-trial hearing in the case has not yet been scheduled.