Appeals court reversal orders city, ex-sergeant to trial Fleeing teenager shot in back of her head in 2013 Chico police killing

by Dave Waddell

When activists from the group Justice for Desmond Phillips crashed a “Town Hall with DA Mike Ramsey” in Paradise last spring, the district attorney seemed eager to discuss the 2013 Chico police killing of 19-year-old Breanne Sharpe.

After one of those activists, Kat Lee, called out for justice for Sharpe, Phillips, Tyler Rushing “and every other life that’s been taken by Butte County law enforcement,” Ramsey steered the tense exchange to Sharpe’s shooting.

“It’s interesting what you say about Ms. Sharpe,” Ramsey told Lee at the May 18 town hall at Paradise Lutheran Church. “You know that a federal judge found that (shooting) to be justified? Do you know that? I mean, I’m just asking you: Do you know that?”

“Yes, and they’re currently trying to appeal,” responded Lee, who videotaped the dialogue on her cell phone and later shared it on social media.

“That was two years ago that the federal judge made that decision,” Ramsey replied. “You understand that a federal judge went through all of the same facts and made that decision?”

On June 18, precisely one month to the day after Ramsey lectured Lee, not one but three other federal judges at the appellate level overturned the decision Ramsey had so confidently referenced. Their ruling opened the way for a civil suit brought against the city of Chico by Sharpe’s mother, Mindy Losee, to go to trial.

The suit also names as a defendant Scott Zuschin, the then-Chico Police Department sergeant who first shot Sharpe. Zuschin’s bullet is believed to have immediately incapacitated Sharpe at the wheel of a stolen car that then did a U-turn and sped dangerously toward several other officers as they fired their Glocks in the middle of East Eighth Street at 2 o’clock in the morning.

Ramsey, Butte County’s chief law enforcement officer for more than 30 years, painted a picture of a “desperate and dangerous” Breanne Sharpe when he justified her killing. In fact, 11 days after her death, Ramsey held aloft for the assembled news media’s eager cameras an earlier booking photo of Sharpe: a disheveled teen in an orange, county-issued jumpsuit. The DA, in finding no criminal liability on the part of police, claimed Sharpe used the vehicle as a “2,000-pound … weapon.”

There’s no question that Sharpe, high on meth, was fleeing police recklessly and at excessive speeds in a stolen car. But the validity of Ramsey’s “weapon” claim seems questionable in light of the fact that Sharpe was (1) frantically trying to get away from police before being shot in the head by Zuschin, and (2) essentially dead with her foot on the gas pedal after being shot in the head, which was when the car posed by far its greatest risk to officers.

Chico police fired a total 19 times, or what tallied up to one round for every year of Sharpe’s brief and at times difficult life. Besides repeated run-ins with law enforcement, she had lived with bipolar disorder, according to news coverage at the time of her death.

Zuschin fired the first four of those 19 rounds, and it was one of those shots – a hollow-point bullet into the back of the teenager’s head – that became the focal point of an appeals court hearing held April 13 in San Francisco.

‘Right not to be shot’

Judges of the U.S. Ninth District Court of Appeals were so skeptical about the necessity of that devastating shot that they overturned a decision by U.S. District Court Judge Kimberly Mueller – whose reputation Ramsey has described as being “very liberal” — and allowed Losee’s lawsuit to move forward. In so doing, the appellate judges pointedly wrote that “the right not to be shot in a car that poses no immediate danger to police officers or others is clearly established.”

“Because a reasonable jury could find that Sergeant Zuschin used excessive force, Losee’s battery and negligence claims against the City of Chico must … proceed,” concludes their decision.

The appellate judges, however, eliminated from the suit four other Chico policemen who fired their pistols at Sharpe: Damon Selland, Jared Cumber, Nick Vega and David Quigley.

Vega fired eight rounds, including the second of the two bullets that struck Sharpe. The Vega bullet is believed to have hit Sharpe in the upper arm and penetrated her chest.

“The forensic pathologist said the head wound would have totally incapacitated Ms. Sharpe and possibly caused her to reflexively push her foot down on the accelerator,” Ramsey wrote in 2013. “The penetrating wound into her chest also would have been fatal.”

Ramsey said recently that he had not viewed a 30-minute YouTube video of the appellate court hearing but labeled as “fairly typical” the judges’ written opinion.

“The (appellate) court is required to accept at face value the plaintiff’s alleged version of facts, even if wrong, in determining whether to … throw the case out of court because there is no way a jury would find for the plaintiff,” Ramsey said. “The plaintiff’s version of the facts, as here, can be flat wrong.”

Losee did not respond to ChicoSol’s requests for comment. Her attorney’s office said a trial date has yet to be set by the district court.

The revival of the Losee litigation returns to three the number of active lawsuits against the city of Chico claiming wrongful police killings. The Desmond Phillips and Tyler Rushing families are both suing the city civilly, while the office of state Attorney General Xavier Becerra is formally reviewing both 2017 shootings from a criminal standpoint, according to the families.

In the early hours of Sept. 22, 2013, while responding to a call about vehicle break-ins, officer Ed Marshall spotted a black 1995 Honda Civic del Sol with a broken rear brake light, according to Ramsey’s report. There had been 27 Hondas stolen in the Chico area in the previous 100 days.

The Honda did not stop when Marshall turned on his overhead lights and in fleeing hit a six-inch curb that brought it to a stop on Vista Verde Avenue, which connects to East Eighth Street east of Highway 99. Marshall pulled behind the Honda, but it was able to back up and accelerate away at speeds that were reported to be no slower than 40 mph despite a high frequency of speed bumps on Vista Verde.

Several officers who had been writing reports at nearby Chico PD headquarters on Humboldt Road sped to the area. Zuschin was the first to arrive, and he exited his sport utility vehicle after parking on the south side of East Eighth Street, just east of Vista Verde. The Honda almost immediately came barreling off Vista Verde, hit the curb on the north side of East Eighth before returning to the south side of the street, barely missing Zuschin and his SUV and then slamming into a utility pole and stopping.

Danger disputed

A key discrepancy between Ramsey’s and Losee’s versions of the facts relates to how much danger Zuschin was in when he opened fire on Sharpe. The then-sergeant was reported to be about 15 to 20 feet behind the Honda when Sharpe began backing it up. Zuschin fired twice while the Honda was in reverse, paused, then twice more after it started to pull forward. He reported being unable to see the driver and aimed his shots at the car’s driver-side headrest. Ramsey’s report says the Honda reversed “rapidly” enough to create tire marks on the pavement and came to within 5 feet of Zuschin.

However, Dale Galipo, Losee’s Woodland Hills-based attorney, told the appeals court that Zuschin answered “I don’t know” when asked both how fast the Honda reversed and how close it came to him. Galipo described the Honda as “slowly backing up” a short distance before starting to head forward to return eastbound on East Eighth – away from the officers.

“I think there’s evidence that car only backed up 6 to 8 feet because obviously it had to back up to continue to go,” Galipo told the appeals court. “And, maybe more importantly, I think the shot that hit her in the head was not one of the first two shots because I think a reasonable inference would be that it’s unlikely that after getting shot in the head she then would have been able to take the car from reverse to drive.

“I don’t think (Zuschin) was even close … to being struck, and clearly there was room to get out of the way. … The next two shots, by his own admission, the vehicle is pulling forward. … So from our perspective those two shots are even more egregious than the first two. … I think a jury could easily find all four of his shots were excessive.”

Ramsey disclosed after her death that Sharpe had “an extensive juvenile record” and was first caught stealing a vehicle when she was just 14. Earlier in 2013, while driving a stolen vehicle, she had led officers on a chase that reached speeds “up to 120 mph” from Paradise to Chico, where she was finally halted by spike strips, “but not until the car had been driven several miles on flattened tires,” according to Ramsey. She was on probation for that offense, had stopped contacting her probation officer three months before her death, “and was considered an absconder,” he wrote.

“It is clear Ms. Sharpe had been living on the streets of either Magalia or Chico and was stealing items to survive,” says Ramsey’s report. “She knew if she was captured this time she would most likely go to prison. She was desperate and dangerous. Her use of a stolen 2,000-pound car as a weapon endangered the officers on scene and the public at large.”

Zuschin promoted, departs

According to the California Public Employees Retirement System, Zuschin left the employment of the city of Chico on April 3, precisely one year after his 2017 promotion to lieutenant by Police Chief Mike O’Brien. In his last year with Chico PD, Zuschin served as watch commander for one of the department’s three patrol divisions.

The Transparent California website lists Zuschin’s pay for 2017, his last full calendar year with the city, at $127,750. Zuschin, who spent 13 years at Chico PD, has about 20 years of service credit in the CalPERS system, having worked previously for Butte and Del Norte counties. As of this week, Zuschin had not filed an application to retire, CalPERS said.

Judges on the three-person appellate panel included Andrew Hurwitz and Kim Wardlaw. One particular exchange between the judges and Galipo, Losee’s attorney, was reflective of the outcome of the appeal:

Galipo: … We cited (Chico PD) policy, which we believe Zuschin violated. One of the reasons shooting at cars is discouraged unless it is a true immediate defense of life is that you’re likely to disable the driver, which could make it more dangerous to not only the public but other officers.

Wardlaw: Right. So Zuschin’s shot to the head could have disabled her to the point that it caused … everything else.

Hurwitz: The rest of the officers don’t know that. They just know that a car is coming towards them.

Galipo: Correct. I’m not even sure some of the officers knew who was firing the shots…

Hurwitz: So you correctly wanted to focus on Zuschin.

Galipo: Yes.

The city of Chico was represented at the April hearing by Sharon Medellin of the city of Industry-based law firm of Alvarez-Glassman and Colvin – the same firm through which the city obtains Vince Ewing’s city attorney services and other contract lawyering.

Medellin met some pointed questioning from the appellate judges. Wardlaw noted that in such cases as Losee v. the city of Chico judges weigh the threat to officers against the levels of force used.

Wardlaw: Why shoot the driver? Why not shoot the tires of the car? And why do you go for the head of the driver?

Medellin: There’s actually a policy that an officer is not supposed to shoot at a vehicle in a manner that’s intended to disable the vehicle.

Wardlaw: There’s a policy that you’d rather have them kill someone … than disable the vehicle?

Medellin: That’s not what the policy says.

“The thing that troubles me is … that in a way Zuschin’s shot to her head actually increased the danger to other people,” Wardlaw told Medellin. “You had a disabled person driving this car. … It’s almost like that shot exacerbated the danger. It didn’t decrease the danger.”

Hurwitz wanted to know why Zuschin, as his first line of self-defense, didn’t just move to his right or left to get out of the Honda’s path when it backed away from the pole. Medellin responded that Zuschin’s own SUV was behind him, while another officer’s vehicle was to his left, and bushes to his right.

“So at that moment he didn’t have anywhere to go,” said Medellin – a contention about which the two sides plainly disagree.

A computerized re-creation of the incident produced by Ramsey’s investigative team indicates that, at the time Zuschin fired his weapon, a patrol car was sitting several yards to Zuschin’s left and rear, with low-level landscaping to his right along the sidewalk.

Hurwitz appeared skeptical of Medellin’s claim that the northeasterly direction in which the Honda was initially heading after backing up posed a threat to the residences on the north side of East Eighth Street.

“The decedent was driving away from where the officers were (when Zuschin fired his third and fourth rounds),” Hurwitz said. “Officer Zuschin, even if he was justified in firing the first two shots to protect himself, fired two more into the rear of the vehicle – probably the one that killed her. Is the justification for that is that she may have run into a house or somebody?”

Dave Waddell is news director at ChicoSol.