In Calonge v. City of San Jose, published June 7, 2024, the 9th Circuit Court of Appeals reversed summary judgment for a defendant police officer that was granted on the ground of qualified immunity. Citizens called 911 about the plaintiff's decedent, who was carrying a BB gun near a shopping center and a high school that was letting out its students at the time. The citizens believed it was a real handgun. The defendant officer arrived with others. The decedent began walking toward the officers and away from the school, the BB gun in his front waistband, his hand on it. The officer shouted to the decedent, "Let me see your hands" and "drop it." Another officer shouted, "Do not reach for it." The suspect paused, crossed the street, and began walking toward the high school. The officers followed on foot and in a car, 10-30 yards away. The decedent looked over his shoulder and smiled. He did not speed up. The defendant officer He began, “I’m gonna—hey . . .” before trailing off. He then shouted for the decedent to “drop it.” A few seconds later, he said to the other officers, “Hey, watch out, I’m gonna shoot him. Watch out, watch out. Get out of the way.” That statement took three seconds. He spent three more seconds steadying his rifle against a tree. He then shot the decedent in the back. He never warned the decedent he was going to shoot. One minute elapsed between the officer exiting his car and shooting the suspect. The defendant officer stated he saw the decedent make gestures suggesting he was drawing the weapon, and that he saw a group of students nearby. Other officers contradicted these statements. The district court ruled that the officer was entitled to qualified immunity, because the plaintiff failed to identify any caselaw clearly establishing that the officer's conduct violated the 4th Amendment.
The appellate court disagreed. Interpreting the disputed facts in the light most favorable to the non-moving party, the court assumed that the decedent was not making a threatening gesture when shot, that there were no bystanders nearby, and that no officer ordered the decedent to get on the ground or otherwise stop. In light of those assumed facts, the decedent's conduct clearly did not justify deadly force. Although the officers reasonably believed the suspect was armed with a real handgun, the law clearly establishes that the fact that the suspect is armed does not justify use of deadly force, unless the decedent makes a furtive movement, harrowing gesture, or verbal threat. The suspect's failure to comply with orders also did not justify the shooting. The law clearly establishes that when officers initially give conflicting commands, a person becomes non-compliant only after an “unequivocal” command is given and the person does not comply. The commands arguably remained conflicting until the officer fired. Because the officers did not order the decedent to stop, or attempt to arrest him, the fact the decedent continued to walk did not justify shooting him. Indeed, simply continuing to walk does not amount to fleeing arrest even in the face of an officer’s commands to stop. Nor were the officers responding to a report of a serious crime. Finally, although failure to warn in itself does not necessarily mean the use of force was unreasonable, the officer had time to warn his fellow officers yet did not warn the decedent. That makes an unreasonable use of force even more unreasonable. Case law clearly established these points at the time of the shooting. The plaintiff did not forfeit any argument on the "clearly established" prong of qualified immunity by failing to identify law at the district court level clearly establishing the violation; appellate review must be conducted in light of all relevant precedent, not just that identified at the district court level. Based on that law, and construing the facts in the plaintiff's favor, a reasonable jury could conclude the defendant officer violated the decedent's constitutional rights.
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