Thursday, Aug. 4, 2011 | 4:39 p.m.
The 9th U.S. Circuit Court of Appeals on Tuesday dismissed a pre-trial appeal from the North Las Vegas Police Department and some officers related to the 2006 shooting death of Phillip Conaster outside his mother's home.
Police responded to the home after Conaster's mother reported that he was violent and suicidal and wanted police to kill him. The 21-year-old Conaster reportedly cut Lt. Edmond Finizie's hand with a knife before police used Tasers and pepper spray on Conaster, then shot him in front of the home on Rising Pebble Court. Officer Peter Smirga also was involved in the shooting.
Conaster's parents sued police for violating their son's Fourth Amendment right not to be subjected to excessive force.
Police asked U.S. District Judge Philip Pro to grant their motion for summary judgment on grounds of "qualified immunity." But Pro rejected that motion after determining, based on witness testimony from neighbors of Conaster's mother, that Conaster appeared calm, didn't attack the officers and didn't pose a threat to police at any time.
On appeal, the defendants argued that Pro erred because the evidence couldn't support the notion that Conaster never attacked police. But the Circuit Court ruled that it lacked jurisdiction to consider the appeal because the dispute was over facts in the pre-trial record, not about "abstract issues of law."
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