SEATTLE (CN) - Shaun Fuhr was holding his one-year-old child when Seattle police officers shot him in the face.

Before a Ninth Circuit panel on Wednesday, his family argued that the city used excessive force, but Seattle argued that the force was objectively reasonable given the circumstances.

"Some of the material facts that were in dispute were recorded on a body cam, which was objective evidence, and we believe the court disregarded that objective evidence," said Jesse Valdez, attorney representing Fuhr's family.

The three-judge panel questioned the circumstances leading up to the fatal shooting.

"Why don't we look at the fact that he fled from police for over 30 minutes?" U.S. Circuit Judge Margaret McKeown, a Bill Clinton appointee, asked. "He was dangerously holding the baby at some point, almost dangling the baby, he had a gun."

The child's mother called 911 at midday on April 29, 2020. She told police that Fuhr had attacked her yesterday and had now disappeared with their child in the park, armed with a gun and drunk. Police responded and began searching for Fuhr, ultimately coming across him when he appeared from the bushes and began walking toward the officers.

One of the officers aimed his rifle at Fuhr and took the shot, killing the 24-year-old.

A lower court had granted summary judgment in favor of the city, finding that the underlying fact didn't support the family's claims and that some of the family's claims were improperly pleaded. It also determined that even if Fuhr's constitutional rights were violated, the officer who shot him was entitled to qualified immunity.

But Fuhr's family argued Wednesday that the police "artificially went to the highest severity" when responding to the call and that Fuhr didn't present an immediate threat.

U.S. Circuit Judge William Fletcher, also a Clinton appointee, referred to the video of the shooting.

"It's pretty clear at the time that he's shot, he's no immediate threat to the officers," Fletcher said. "If we're worried about the safety of the baby, one thing that strikes is he's been holding that baby for half an hour as he is eluding the officers, he's still holding the baby and the baby is unharmed."

"And that's what we were wanting to say, your honor," Valdez said. He argued that the city didn't provide any evidence for the accusation that Fuhr had jumped over fences or scaled barriers while running from the police.

The individual police officer named as a defendant in the original case justified the shooting based on the concern that the baby would be used as a hostage. Fuhr's family argued that the body cam footage should have made it before a jury for them to decide whether that concern was grounded.

"Right now, we're making interpretations. 'He's using the child as a shield.' Well, who's making that interpretation? That's subjective," Valdez said. "What does the objective evidence say? Look at the video."

Seattle argued that the officer made the decision based on the information he had at the time.

"The officer at the time confronted a situation that was extremely dynamic," said Rebecca Widen with the Seattle City Attorney's Office. "It was extremely fast between the time when he first spotted Mr. Fuhr and he and other officers had his weapons pointed at Mr. Fuhr and ordered him loudly to stop."

"Was he given an opportunity to comply with the order or was he shot more or less simultaneously with the order being given?" Fletcher asked.

Widen admitted that the command was "close to being simultaneous" with the shooting but argued that the events leading up to the interaction must be considered as well.

"There was probable cause to arrest Mr. Fuhr for a felony domestic violence assault with a firearm and kidnapping," Widen said, justifying why it could be seen as a potential hostage situation.

U.S. Circuit Judge Roopali Desai noted that the video didn't exactly support the city's argument that Fuhr was still trying to evade police at the moment he was shot.

"I think there's at least some question that he might have been surrendering at the time that he took a step forward," Desai, a Joe Biden appointee, said. "I mean, 20 seconds before that, when he was running in the opposite direction, I would agree with what you're saying, but not at the moment that he was shot."

The city argued that it was only speculation to say he was surrendering, as he had been given a clear opportunity to surrender before and hadn't taken it.

Fletcher pushed back.

"It's hard to say he's running away from the officers when he is facing them and walking toward them," Fletcher said.

The city argued that even if the court finds there was a constitutional violation, the responding officers are entitled to qualified immunity.

The Ninth Circuit did not indicate when it would rule.

Source: Courthouse News Service