In Smith v. Agdeppa, published December 30, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed denial of a summary judgment motion based on qualified immunity. Two police officers responded to a gym’s report of trespassing and disruptive conduct. When they arrived, staff reported that a man in the locker room was irate, was not listening, had hurt a few gym members, and had assaulted security. The police entered the shower area of the locker room, where the man was naked, and spent several minutes ordering the man to get dressed, to turn off his music, and to leave the gym. The man ignored the officers except to raise his middle finger. The officers attempted to handcuff the man. For a minute and 20 seconds, the man used his size to thwart the smaller officers’ attempts to handcuff him. As he resisted, both officers’ body cams were knocked off their uniforms. The next three minutes were not visible on video, but the cams continued to record audio.The defendant officer alleges that after the cams fell down, the struggle escalated and turned violent. One officer used her taser in dart mode on the man, and both officers used their tasers in stun mode. The defendant officer testified that the man repeatedly struck him in the face and knocked him backward into a wall, disorienting him and causing him to drop his taser. According to the officer, the man straddled his partner and pummeled her head and face with punches. He believed her life was in danger. He drew his weapon and gave the man a verbal warning that he needed to stop. He testified that the man continued to pummel the officer, so the defendant officer fired five shots from six to eight feet away. The man began falling backwards and away when he fired the final shot. The district court found that evidence contradicted the defendant officer’s version of events. The warning to stop cannot be heard in the bodycam audio. Security guards’ accounts, recounted in an internal investigation of the shooting, differed from the officers’ accounts in several respects. A guard said that the man was holding the defendant officer’s arm when the shots were fired, contradicting the officer’s statement that he was standing away from the man. The guards disagreed with the officers on the number of shots fired, the whether the man reached for the defendant officer’s firearm, and whether the man was holding the officer’s wrist until after the second shot was fired. The internal investigation concluded the defendant officer’s use of lethal force was unreasonable, because there was no exigency preventing the officers from withdrawing and redeploying with greater resources. Further, the evidence indicated the officers’ injuries were only minor, according to the panel majority. An autopsy report also put into question the officer’s statement that he shot the man from six to eight feet away. The district court concluded that a jury could find a reasonable officer in the defendant’s position would have understood his use of deadly force violated the man’s Fourth Amendment ri
The panel majority upheld the district court’s finding. In an interlocutory appeal from denial of qualified immunity at the summary judgment stage, the court determines whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right; and whether the right in question was clearly established at the time of the officer’s action. If either question is answered in the negative, the officer is entitled to qualified immunity. Deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others. Further, an officer must give warning before using deadly force whenever practicable. When the suspect is shot dead, and other evidence in the record (such as medical reports, contemporaneous statements by the officer, available physical evidence, and any expert testimony proffered by the plaintiff) is inconsistent with material evidence offered by the defendant, the majority held, qualified immunity should not be granted. A jury should consider the contradictory evidence and decide whether they were persuaded by the officers’ testimony. Here, depending on what happened in the locker room, a jury could find that the officer had an opportunity to give the suspect a “deadly force warning” before escalating to deadly force. The officer provided several warnings before using intermediate force, but at no point did he warn the suspect he was escalating to the use of his firearm. The officer’s version of events was materially contradicted by the record, including whether the officer was engaged in hand-to-hand combat with the suspect or stood six to eight feet away. While the suspect posed some danger to the officers’ safety by actively resisting arrest, a jury could reasonably reject the officer’s description of a deadly fight and find that a reasonable officer in the defendant’s position would not have believed the fellow officer or anyone else was in imminent danger. Further, the officer never claimed it was not practicable to give a deadline force warning. On the contrary, the officer gave a declaration that he gave a verbal warning, stating words to the effect that the suspect needed to stop. Because the officers had tased the suspect a few times, a warning to stop would do nothing to warn the suspect that the officer was preparing to ramp up to use deadline force. While the officer would likely prevail if a jury believed his version, the court cannot overlook the internal investigation’s contrary finding that no exigency required use of deadly force.
A dissenting judge opined that the undisputed facts, including the audio from the body cams and two independent witnesses’ verification of the officer’s account, indicated that the officers faced an imminent threat, and that the law did not require them to issue another warning before using deadly force.
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On rehearing, the panel issued a new decision, published August 30, 2023, in which the majority held that the officer was entitled to qualified immunity. The plaintiff had failed to identify any precedent finding a 4th Amendment violation under similar circumstances. The issues of fact were not material to qualified immunity. The general rule that a warning should be given when possible was too broad to clearly establish that the officers violated the 4th Amendment by failing to give a warning here. One judge dissented.
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