Supreme Court lets stand lower court rulings in Scottsdale police shooting
By Isaac Windes, Cronkite News | Tuesday, Oct. 31, 2017
WASHINGTON – The Supreme Court let stand a ruling that a Scottsdale police officer was justified when he shot and killed a man who threatened two people with a knife and advanced toward officers with two halves of a pool cue in his hands.
The high court on Monday refused without comment to hear an appeal from Warren Prostrollo, who was challenging lower courts that threw out his claim of wrongful death in the shooting of his son.
The son, Jason, a veteran who was intoxicated at the time of the 2012 incident, was surrounded by officers and had just been bitten by a police dog when Lt. Ronald Bayne opened fire, killing Prostrollo and wounding the dog.
An attorney for the Prostrollos said he was disappointed in the Supreme Court’s decision, which he called “a step backwards” for constitutional protections that creates a “safe harbor for police officers that use deadly force.”
“We have a drunken Marine veteran stumbling down a sidewalk, possibly not able to hear … and he was killed,” said the attorney, Joel Robbins. “There was no danger to the police after the dog was released.”
But Lori Davis, an attorney for Scottsdale, said in an emailed statement that the city “appreciates the fact that the Supreme Court agreed with the trial court’s decision that the City and its employees were not at fault for the unfortunate death of Mr. Prostrollo.”
Scottsdale police were called to the home of Daniel Hall early on the morning of Jan. 28, 2012, by Rachel Rogers, who said a man was holding Hall at knifepoint in their home. An officer and a canine unit were dispatched but Bayne, the ranking officer on the shift, decided to respond as well.
On the way, Bayne responded to another call from a cab driver who said he had been held at knifepoint by a passenger who ordered him to drive around Scottsdale and tried to rob him, before ordering the driver to drop him off at the same house where he had been picked up.
That house turned out to be Hall’s. By the time Bayne arrived, Hall and Rogers were out of the house. They told officers that Prostrollo was a veteran who suffered from post-traumatic stress and was intoxicated.
At some point, Prostrollo left the house holding the pool cue halves and walking toward several officers who were now on the scene. Despite shouted warnings from all of the officers to stop and drop the sticks or they would shoot and release the dog, Prostrollo kept advancing with a stare that one officer called “one of the scariest … facial expressions” he had seen.
When he was about 20 feet away, police released the dog, which bit Prostrollo in the chest and was biting him in the arm when Bayne fired twice, killing Prostrollo.
Prostrollo’s father sued, claiming wrongful death. Robbins said there was a possibility Jason Prostrollo did not hear the orders to stop. But the city argued that “clearly established law informed Lt. Bayne, that his use of deadly force against Jason was not in violation of the Fourth Amendment and thus constitutionally permitted.”
A U.S. District Court judge agreed that Bayne’s actions were reasonable because he “was in self-defense officer mode, fearing for his life” and granted summary judgment for the city.
On appeal, a divided panel of the 9th U.S. Circuit Court of Appeals upheld the district court, saying “no reasonable jury could conclude” that Bayne’s use of force was unreasonable. “Even if the dog had been released and was attempting to subdue Prostrollo at the time Lt. Bayne fired, that would not render his use of force unreasonable,” the appellate court said, noting that he did not know if Prostrollo still had a knife.
But in a dissent, Circuit Judge Paul Watford said the case raised questions a jury should have been allowed to decide.
“A jury could reasonably conclude that at that distance, with a trained police dog attacking him, Prostrollo did not pose an immediate threat of death or serious physical injury,” Watford wrote.
Robbins said the rulings lets police escape culpability by saying “the magic words … ‘This is a constantly evolving situation’ or ‘My life was in danger’ … and they don’t get charged.”
He also said courts have allowed the qualified immunity defense to “say deadly force is OK. But that isn’t what it’s for.”
“It is supposed to be, as laws change you can’t expect officers to catch up with those laws right away,” Robbins said. “What they should be saying is that this is acceptable today, but something should be learned – there are no lessons here.”