Is Tyler Rushing case finally headed to trial? Judge denies Chico’s latest moves to thwart police-violence lawsuit

by Dave Waddell
posted July 26

Editor’s note: An emailed statement from Police Chief Billy Aldridge was added to this story the morning of July 28. Because of an email glitch, his statement was unfortunately missed at the time of the story’s posting.

The City of Chico’s efforts to avoid a civil trial over the tasering of an incapacitated Tyler Rushing -– legal moves Rushing’s father calls “bullying” -– seem now at an end with a recent ruling by a federal judge.

“It looks like we’re going to get our day in court now -– or week, or whatever it takes,” said Scott Rushing, speaking by phone while visiting Sunday, with his wife Paula, the Ventura cemetery where their only son’s ashes are interred. July 23 was the sixth anniversary of Tyler’s slaying by a private security guard and Chico police. Tyler, who operated a window-washing business, would be 40 years old had he not been killed.

Judge Morris England, on July 17, denied Chico’s motions aimed at tossing the Rushing family’s civil rights lawsuit that resulted from Tyler’s fatal shooting and tasering by Chico police. England’s ruling did not set a trial date in the U.S. District Court for the Eastern District of California in Sacramento.

In 2020, England, without any court hearing, granted the City’s motion to dismiss the lawsuit in its entirety.

However, a three-judge panel for the U.S. Court of Appeals for the Ninth Circuit, later reversed England in part, ordering unanimously that only the tasering portion of the lawsuit –- and not the killing portion — move forward.

A press release issued by Scott Rushing following England’s latest ruling notes that Tyler, after being shot by armed guard Edgar Sanchez, fled into a downtown title company’s bathroom bleeding from a serious chest wound. Tyler had assaulted and cut the guard with a small glass flowerpot.

“After demanding that Tyler exit the bathroom, City police, commanded by Sgt. Scott Ruppel, stormed the bathroom, used a dog to maul unarmed Tyler, and then shot him twice more in the throat and back of the head at ear level. While (Tyler lay) on the floor, officer Alex Fliehr delivered the coup de grace by repeatedly firing his taser into Tyler, who expired as a result,” claims the Rushings’ press statement.

Ruppel, who was later prosecuted unsuccessfully by Butte County District Attorney Mike Ramsey for assault after choking a handcuffed suspect for about eight seconds, had tried to talk Tyler out of the bathroom for 30 minutes or so.

While being bitten by the dog, the flailing Rushing allegedly hit officer Cedric Schwyzer with a chunk of broken toilet porcelain and then, latching onto a Chico PD pen from Schwyzer’s pocket, struck Ruppel in the neck with it. Schwyzer’s head wound required nine stitches, while Ruppel’s injury was a tiny skin break. Still, Ruppel rushed forward and shot Rushing with his Glock two times at nearly point-blank range, almost hitting Butte County sheriff’s deputy Ian Dickerson, who was holding Rushing when Ruppel fired, Dickerson told investigators.

The Rushings are represented by Mark Merin, a longtime Sacramento civil rights attorney. Scott Rushing said Merin believes Judge England wants the two sides at this point to mediate the dispute, and Merin was planning to “reach out to the City” to start mediation.

“They (City officials) want to drag this out and bully us,” Scott Rushing said. “We’re going to ask for an immediate trial date if mediation is unsuccessful.”

Rushing said the City has made no mediation overtures nor settlement offers at any point in the six years since Tyler’s death.

At the Oct. 5, 2021, appellate hearing in San Francisco, one of the Ninth Circuit’s judges, Michelle Friedland, at one point interrupted the City’s lawyer, Sharon Medellin, to ask a question: “Has the City tried mediating this case with the plaintiff?”

After several seconds of silence from Medellin, Friedland asked the question differently: “Has there been a mediation effort in our court?”

Following several more seconds of silence, Medellin replied: “Oh, no. No.”

Medellin did not respond to a request for comment on the City’s motions or about Scott Rushing’s claims of legal bullying. Police Chief Billy Aldridge emailed this statement: “Thank you for notifying me of the story. As you know, the City does not allow any employee to speak on cases with pending litigation. Our attorneys will be the voice for the City … Once the case is adjudicated, I will be happy to speak with you about it.”

What would it take for the Rushings to settle?

“It will have to be a significantly high amount of money,” said Scott Rushing. “High enough to send a message to officers to use lethal force only as a last resort. … Otherwise, we go to court and see what the jury says.”

Scott Rushing characterized the City’s tactics since the appellate court ruling as “lawful but awful.”

“The City of Chico used legal means to obstruct and delay Tyler’s day in court,” he said. “They could have saved time and money for both sides. They’ve stretched out the time –- six years today (July 23rd).”

The City last year appealed the Ninth Circuit’s decision to the U.S. Supreme Court. At the time, Seth Stoughton, a professor of law at the University of South Carolina and expert on police practices, said the City’s petition had a “snowball-in-hell chance” of being granted. Even though the Rushings considered the City’s petition frivolous, they needed to pay one of their attorneys $10,000 to formally respond to it.

After the Supreme Court denied a hearing, the City filed motions essentially asking Judge England to ignore the appellate decision, Scott Rushing said. Instead, England, in his decision, quoted from the Ninth Circuit’s judgment: “If the jury concluded factually that Rushing did not pose an immediate threat because, after being shot three times, he (lay) still, face down with his hands visible in a pool of his own blood, any reasonable officer should have known that repeated tasings of Rushing violated clearly established law on excessive force.”

Rushing said it cost another $15,800 in attorney’s fees to respond to the motions England recently struck down.

In addition to Ruppel, three officers are named in the Rushings’ suit: Fliehr, Schwyzer and Jeremy Gagnebin. All three claimed in video-taped investigative interviews that Rushing moved while on the floor, with Gagnebin becoming animated in demonstrating his movements. Fliehr claimed he saw Rushing “flinch” before shouting, “He’s moving! He’s moving!” and calling for the Taser.

Four months before the Rushing killing. Fliehr and Gagnebin told inconsistent stories after killing Desmond Phillips, a young Black man in mental crisis.

A Chico PD Internal Affairs report, obtained through the Public Records Act, on the Rushing incident says no movement from Tyler could be seen on any of the officers’ body-worn camera videos after Ruppel shot him to the floor. The IA report expresses no concerns about the officers’ inaccurate statements about Rushing’s movements.

Body worn camera videos indicate that current Chico Police Chief Billy Aldridge, then a lieutenant and the highest-ranking officer present, was on the scene for at least 18 minutes before the siege on the bathroom but never took command. Law Professor Stoughton, a former cop and the lead author of the book “Evaluating Police Uses of Force,” has said that normally the highest-ranking officer on site exerts “command and control” over any “dynamic entry, especially one involving a dog,” given the inherent unpredictability of canines.

“I would expect a lieutenant to be calling the tactical shots” in the Rushing situation, Stoughton has said.

The taser was provided to Fliehr, without question or hesitation, by then-Sgt. Omar Peña, now a Chico PD lieutenant.

“I regret my legal team and I failed to name Aldridge and Peña as defendants, specifically for non-intervention,” Scott Rushing said. “The serious legal theory of ‘non-intervention’ became obvious to lawyers, cops and the public after the murder of George Floyd — too late for us to utilize. Aldridge and Peña should be facing the jury.”

Peña, Fliehr, Gagnebin and Schwyzer did not respond to a request for comment for this story.

Dave Waddell is a contributing writer to ChicoSol working on a book about Butte County law enforcement killings.