Appeals court brings back excessive force lawsuit against officer who killed Patrick Harmon

The claim will go back to the federal court, where it was dismissed in August 2020.

(Salt Lake City Police Department via AP) This Aug. 13, 2017, file photo from Salt Lake City police body camera video shows Patrick Harmon, left, before he was shot and killed in Salt Lake City.

A federal appeals court decided Wednesday that an excessive force lawsuit filed against a Salt Lake City police officer who shot and killed Patrick Harmon in 2017 will go forward in federal court.

The 10th U.S. Circuit Court of Appeals ruling reversed the decision of a federal court judge, who in August 2020 had dismissed the excessive force allegation against officer Clinton Fox, as well as a claim that Salt Lake City was liable for Fox’s actions. Harmon’s children appealed that decision to the Denver-based circuit court.

In its ruling Wednesday, the appeals court panel said U.S. District Judge Robert J. Shelby erred in dismissing those two claims. The panel judges ruled that there was enough evidence that the claim could not be tossed based on qualified immunity, as attorneys for the city and the officer had argued. The case will now return to the lower court and move forward there.

Qualified immunity protects government employees from civil lawsuits if their conduct doesn’t violate “clearly established statutory or constitutional rights.” U.S. Circuit Judge Paul J. Kelly Jr. wrote that the appeals court believes Harmon’s children have made a reasonable allegation that there was a violation of “clearly established law.”

“Based on the totality of the circumstances,” Kelly wrote in the ruling, “a reasonable trier of fact could view Officer Fox’s actions as objectively unreasonable.”

Representatives for Harmon and Fox did not return requests for comment as of Wednesday evening. In a joint statement, Salt Lake City and the Salt Lake City Police Department on Wednesday said that “the officers involved acted reasonably and lawfully” and that their use of force was “appropriate given the threat they faced.”

Fox shot and killed Harmon on Aug. 13, 2017, after another officer, Kris Smith, pulled Harmon over around 10 p.m. after Harmon crossed State Street on a bicycle without red taillights.

Harmon initially gave Smith false names, but eventually told Smith he probably had an outstanding arrest warrant, according to the appeals court ruling. Smith called for backup and officers Scott Robinson and Fox arrived.

Fox verified the warrant in a few minutes, and the officers approached Harmon to arrest him.

Harmon asked officers not to arrest him, but complied with orders to take off his backpack, according to the ruling. As police moved his hands behind his back to handcuff him, video shows Harmon got free and ran away.

Harmon then turned around, and ran back at officers, knocking Robinson down. Fox pulled his gun, while the ruling notes Smith drew his Taser.

According to the ruling, Harmon turned back toward the officers, and brought his hands to his chest. He dropped his left arm, keeping his right arm near his chest. Fox yelled, “I’ll f------ shoot you,” then fired three shots.

Harmon died just after midnight. Fox has said he saw a knife and was afraid Harmon was going to stab him. Police found a knife near Harmon’s body later, but Harmon’s family has argued that it wasn’t Harmon’s.

The Salt Lake County District Attorney’s Office found the shooting legally justified. District Attorney Sim Gill asked the FBI to review the case after demonstrators rallied to protest his decision.

Harmon’s family filed a lawsuit in Utah state court in July 2019, arguing Harmon’s case follows an “all-too-familiar narrative: an unarmed black man shot to death by law enforcement without justification.” It cast doubt about whether the knife was Harmon’s and if he posed a threat.

The lawsuit alleged excessive force by Fox and the municipal liability claim against Salt Lake City, as well as an equal protection violation. It also alleged two state claims for a wrongful death and unnecessary rigor claim.

The case was moved to federal court.

In the court of appeals ruling, Kelly wrote that Shelby, the federal court judge, “erred in drawing conclusions about Mr. Harmon’s movements that were contrary to the Estate’s allegations and were not blatantly contradicted by the record including the video footage.”

Kelly wrote that the appeals court reversed and remanded the municipal liability claim so the federal district court could “fully assess” it.