Ninth Circuit rules wrongful death suit against Clark County deputies in 2020 killing can move forward

A federal appeals court ruled Tuesday that a wrongful death lawsuit filed against Clark County sheriff’s deputies who shot and killed 21-year-old Kevin Peterson Jr. nearly four years ago can move forward.

The Ninth Circuit judges found it reasonable for a jury to conclude that sheriff’s deputies violated Peterson’s constitutional rights. Their ruling upheld a lower court’s decision that found that police in this case were not entitled to qualified immunity, which protects police from being held individually liable for their actions in the line of duty.

The three-judge appeals court panel wrote in their unanimous ruling that Peterson posed no immediate threat, and appeared to question officers’ use of deadly force because Peterson was not suspected of committing a violent crime.

“Although Peterson was armed and actively trying to evade police officers, the evidence, construed in his favor, suggests that he did not point the gun at anyone, say a word to the officers, make any harrowing gestures, or make any furtive or threatening movements towards the officers or the public,” the Ninth Circuit said.

Peterson was killed on Oct. 29, 2020, while fleeing a “buy-bust” sting operation in a motel parking lot outside Vancouver, Washington. Officers who were part of a regional drug task force had planned on arresting Peterson after he tried to sell 50 Xanax pills to a law enforcement informant.

After Peterson pulled into the parking lot, officers moved in and Peterson ran. One officer said over the radio that he saw Peterson with a gun. At one point, officers said in a deposition, they lost sight of Peterson and later saw him talking on a cell phone.

According to court records, Peterson was on FaceTime with his girlfriend, telling her he was trying to escape. One deputy testified that he saw Peterson holding a gun and pointing it at him, so the deputy fired. However, court records note that the surveillance video does not show Peterson pointing a gun.

Deputies fired 34 shots, including several at Peterson’s back, court records state.

Last summer, Clark County filed to dismiss the lawsuit, arguing Peterson’s cell phone — “in a horizontal position, and pointed it at the deputies, arm outstretched, and lining up with his head” — looked like a 40 mm pistol.

U.S. District Court Judge Barbara Jacobs Rothstein denied Clark County’s motion to dismiss last fall, writing “Peterson was mortally wounded and died shortly thereafter. A handgun was found several feet away from Peterson’s body. Plaintiffs allege that Peterson held up his iPhone to show his girlfriend what was happening and never threatened nor pointed a gun at anyone.”

The county argued that Peterson’s actions “mimic the pointing of a gun.”

“Case law makes it clear if you display your hands or a dark object toward police in a manner that mimics a gun, the police act reasonably if they shoot you. That is what happened here.”

Attorneys for Peterson’s family said in a statement that the trial is set for early 2025 in Seattle.