Having handled excessive-force claims against police for three decades, Newport Beach-based attorney Jerry Steering says he had never seen a more outrageous case of a cop committing a public execution than the September 2013 death of Connor Zion, a 21-year-old Laguna Niguel resident.
Nobody absolves Zion, a talented dancer who was in the midst of a severe epileptic seizure, from creating a dangerous situation when he grabbed a sharp kitchen knife and began babbling. Both his mother, Kimberly, and his roommate, who initiated a 911 call, received cuts while trying to take the weapon away. Zion then ran outside and stabbed responding Orange County sheriff’s deputy Juan Lopez in both arms.
Likewise, nobody, not even Steering, blames deputy Michael Higgins for initially firing his Glock 9mm pistol at Zion.
“Concern for the safety of Deputy Lopez, myself and others in the community, including [a] woman who was with her dog, I started firing at the suspect,” Higgins memorialized in a statement for the sheriff’s team of private, Los Angeles-based lawyers. “The suspect, still in possession of the knife, began to retreat toward one of the residences as I continued to fire.”
This is where the officer’s story gets puzzling.
From a distance of just 8 feet to 10 feet, Higgins, who considers himself a decent shot, unloaded nine bullets at Zion. Some of the projectiles struck Zion’s back and ripped through his body, shattering bones. He fell to the apartment-complex sidewalk, a fact you might easily assume was the result of being repeatedly shot by a powerful handgun at close range.
But the deputy’s story temporarily suspended common sense and the laws of physics. To fight a wrongful-death lawsuit, Higgins claimed, “I could not be certain whether any of the shots actually impacted the suspect,” a scenario meant to justify what happened next.
With a wounded, probably even unconscious Zion down, the deputy stood over him, fired nine more bullets, and then used his boots to stomp him in the head three times.
“By the end of the first volley of nine shots, Connor Zion had been completely neutralized,” Steering told U.S. District Court Judge James V. Selna.
He blamed the deputy for acting on “pure rage” during the second half of the incident, saying, “Deputy Higgins simply went temporarily nuts and decided to execute Zion. . . . The only reason he stopped shooting was that he ran out of bullets.”
But Selna, who wasn’t troubled by Higgins’ magically ineffective bullets tale, didn’t agree. In an October 2015 hearing inside Orange County’s Ronald Reagan Federal Courthouse, the judge came to the deputy’s rescue. He opined the officer had acted reasonably during the second round of nine shots and head stomps because Zion’s body moved slightly during that stage. Any movement, according to Selna, justified Higgins’ alleged fear he remained in grave danger.
To reach this conclusion, the 2003 President George W. Bush appointee joined the deputy in mental hocus pocus. As any semi-intelligent adult could expect, a body lying on concrete and being struck by as many as nine bullets traveling at more than 1,000 feet per second would move in reaction to the shots.
An exasperated Steering made the point that such movement didn’t mean Zion, who was dead at the scene, continued to be a legitimate threat.
“The [dash cam] video clearly revealed the body was moving,” the judge said after Steering played the footage in hopes of proving his point. “For whatever reason, the body was moving.”
The lawyer replied, “Your honor, with all due respect, a man is on the ground. He was shot nine times before he got to the ground, and he’s being shot. And as he’s being shot, I can imagine he’s being hit with bullets. He’s not standing up. He’s not sitting up.”
Selna viewed the argument as meaningless because the deputy could have reasonably expected Zion, who received 13 gunshot wounds all over his body, to rise in zombie-fashion for an attack.
He asked, “Is the officer supposed to know whether that movement is movement on behalf of Zion resisting and potentially coming back, or whether it’s involuntary movement because he’s dead or involuntary movement because of the effect of the nine bullets?”
Ultimately labeling the lawsuit “without merit,” the judge killed the case before a jury could hear the facts at a trial, sent a $4,788 expense bill to Kimberly Zion for losing and advised Steering he could complain to the U.S. District Court of Appeals for the Ninth Circuit if unsatisfied.
This month, a three-judge panel of Stephen Reinhardt, Alex Kozinski and Terrence Berg reversed the key portion of Selna’s ruling. Noting that the video evidence contradicted Higgins’ claim that Zion had attempted to stand up, the judges agreed a future jury could view the deputy’s conduct as excessive.
“After the two volleys, the video shows Higgins walking around in a circle for several seconds before returning for the head strikes,” Kozinski wrote in the unanimous opinion. “He even takes a running start before each strike. This is exactly the kind of brutal conduct the [Constitution’s] due-process clause protects against. . . . A jury could reasonably find that Higgins knew or could have determined that he had already rendered Zion harmless. If so, a reasonable jury could also conclude that Higgins was acting out of anger or emotion rather than any legitimate law-enforcement purpose.”
Kozinski, who has been increasingly vocal about the refusal of some prosecutors and cops to behave ethically, added that “terminating a threat doesn’t necessarily mean terminating the suspect.”
You can see the dashboard cam video HERE.
R. Scott Moxley has won Journalist of the Year honors at the Los Angeles Press Club; been named Distinguished Journalist of the Year by the LA Society of Professional Journalists; and hailed by two New York Times Magazine writers for his “herculean job” exposing Southern California law enforcement corruption.