Qualified Immunity and a Deadly Force Warning: The Ninth Circuit Tosses Out Previous Ruling Denying Qualified Immunity in Fatal Police Shooting Case
The qualified immunity defense battle continues as the
Ninth Circuit Court of Appeals agrees to rehear the case involving Los Angeles
police officer, Edward Agdeppa, and his use of deadly force stemming from a
2018 fatal police shooting. Agdeppa faces a federal civil rights action filed
by the decedent’s mother, who argues that Agdeppa’s use of deadly force was
objectively unreasonable and violated the decedent’s clearly established Fourth
Amendment rights. Agdeppa has faced legal challenges concerning whether or not
qualified immunity is an applicable defense protecting him from any personal
liability in the matter.
Qualified immunity is a legal concept that is used to protect police
officers and other governmental officials from lawsuits over harm caused while
carrying out their official duties within the law. Qualified immunity protects
government officers from § 1983 suits unless (1) they violated a federal statutory or
constitutional right, and (2) the unlawfulness of their conduct was “clearly
established.”[1]
The lower court ruled
against Agdeppa and found that the qualified immunity defense was not applicable
in his case “because a jury could decide that Agdeppa’s use of deadly force
violated clearly established law.”[2]
Agdeppa appealed the decision to the Ninth Circuit, who issued a split 2-1
decision in December 2022, agreeing with the lower court and again denying
Agdeppa’s request for qualified immunity. The Court, however, last month,
correctly agreed to rehear the case and ultimately tossed out their previous December
ruling.
Facts of the Case:
2018, when officers responded to a report of an aggressive trespasser that was
assaulting staff at a Hollywood gym. Upon arrival, officers activated their
body-worn cameras and met a combative, naked, and six-foot-one-inch, 280-pound
Albert Dorsey in the gym’s locker room. The responding officers –
five-foot-five-inch, 145-pound Officer Rodriguez and five-foot-one-inch,
145-pound Officer Agdeppa – confronted Dorsey, asking him to get dressed and
leave. Dorsey refused, and a violent altercation ensued.
successfully secured one handcuff on Dorsey but failed to cuff the other wrist.
The officers tried various tactical maneuvers to secure Dorsey, including using
arm, finger, and wrist locks. The body-cam video shows that Dorsey used his
size to thwart the smaller officers’ attempts to handcuff him. As the struggle
intensified, the body-cams were knocked to the floor. The remaining encounter was
not caught on video, but the cameras continued to record the audio.
Agdeppa alleges that the struggle turned more violent
after the body-cams fell. Dorsey was repeatedly told to stop resisting, but broke
free. Despite both officers deploying their tasers multiple times, Dorsey
continued resisting. Agdeppa attests that Dorsey repeatedly struck him in the
face and knocked him into a wall, disorienting him and causing him to drop his
taser. A security guard witness corroborates that Dorsey repeatedly punched
Agdeppa in the face. Agdeppa then witnessed Dorsey straddling Officer Rodriguez
and “pummeling” her head with a “flurry of punches” while gaining control of
her taser. Agdeppa drew out his gun and ordered Dorsey to stop, but Dorsey
continued pummeling Rodriguez. It was at this point that Agdeppa fired five
shots to stop Dorsey, who subsequently died from his injuries.
Following the shooting,
Dorsey’s family sued Agdeppa and have been quick to accuse the officers of
feeling threatened by Dorsey because “he was big and black.”[3]
It’s no surprise that anti-police activists have used Dorsey’s death in their
plea for police reform and in their efforts to pull back the scope of qualified
immunity, which they see as being the single largest barrier to police
accountability.[4]
Ninth Circuit Agrees with Lower Court, Rules Against Agdeppa – Limiting Scope of Qualified Immunity Defense
request for qualified immunity for two main reasons: (1) in the majority’s
opinion, there were too many factual discrepancies surrounding the moments
immediately before the shooting, and (2) Agdeppa – despite repeatedly ordering
Dorsey to stop – failed to give a clear deadly force warning at a time when, in
the majority’s opinion, it was practical to do so.
The majority opinion, written by Obama-appointed Judge
Morgan Christen, argued that a reasonable jury could reject the officers’ accounts
of the shooting because there were significant discrepancies between the
officers’ accounts and other evidence in the record. The majority focused on
one discrepancy involving a security guard witness, who had attested that
Dorsey was holding Agdeppa’s arm when the shots were fired. This statement
seems to contradict Agdeppa’s account of being six-to-eight feet away from
Dorsey at the time of firing. This discrepancy could allow a jury to question
Agdeppa’s credibility, and according to the Court, “summary judgment is not
appropriate in a deadly force case if the plaintiff’s claim turns on an
officer’s credibility.”[5]
This is because “courts must take special care to ‘ensure that the officer is
not taking advantage of the fact that the witness most likely to contradict his
story – the person shot dead – is unable to testify.’”[6]
The dissenting opinion, however, correctly pointed out what the majority
glossed over – that based on video surveillance, the security guards were not
even in the locker room at the time of firing, a fact that comes from the Los
Angeles Board of Police Commissioners’ (BOPC) report. Moreover, two independent
witnesses verified the officers’ account.[7]
As the dissent correctly notes, the course of events presented in the BOPC
report, of which the majority heavily relies on, largely conforms to the
officers’ account. The key facts are not disputed. And although the majority
relied “on portions of the BOPC report that criticize the officers…for failing
to use de-escalation tactics earlier in the encounter,” the BOPC report still –
as the dissent correctly emphasizes again – “unequivocally supports the
officers” because it substantiates the claim that the officers’ belief “that
there was an imminent threat of death or serious bodily injury at the time of
the [shooting] was objectively reasonable.”[8]
On Agdeppa’s Alleged Failure to Give a Deadly Force Warning
it was clearly established that the officers in this situation were required by
law to give a further warning before using deadly force; “remarkably, the
majority says yes.”[9] The
body-cam audio from the moments immediately before the shooting is muffled, and
whatever is said by the officers in that moment is unclear. The majority
concludes therefore that there is no evidence that Agdeppa warned Dorsey that
deadly force would be used if Dorsey kept resisting.
Amendment requires officers to warn before using deadly force when practicable.”[10]
And in the majority’s view, it was practical for Agdeppa to give this warning.
Agdeppa never argued that it wasn’t practical, and the fact that he had time to
yell out other directives shows that he had time to warn Dorsey that he was
resorting to deadly force. Ironically, the Court makes this argument while simultaneously
recognizing that the officers’ actions should not be judged with 20/20
hindsight. The majority also ignores the repeated de-escalation attempts made by
the officers prior to the fatal shots. What about Dorsey’s personal
responsibility here? He was given multiple opportunities to stand down, and “a
suspect in this situation either knows or should know what can happen next.”[11]
Relatedly, the Court never specifies what type of deadly force warning would
have been more appropriate, and as the dissent recognizes, the Circuit’s cases
“certainly do not clearly establish the types of situations in which a warning
is ‘practicable,’ what form the warning must take, or how specific it must be.”[12]
therefore, the question remains – “at what
microsecond interval in the final heated moments of this escalating
confrontation was Agdeppa somehow legally required to hit the ‘pause button’
and recite some yet-undisclosed, court-created warning script?”[13]
As the dissent properly concludes, “the uncertainty the majority invites…could
make the difference in whether officers like Agdeppa and Rodriguez make it out
of a violent altercation alive.”[14]
Takeaways
ruling had the potential to create rather ominous consequences as it limited
the scope of the qualified immunity defense for officers. The decision implied
that the practicality of a warning will always be a question of fact. This
creates an avenue to deny qualified immunity in every case in which an officer
fails to give this warning. And the Court’s readiness to disregard the Supreme
Court’s directive against viewing deadly force incidents with 20/20 hindsight
is equally alarming.
that notion speaks to why the Ninth Circuit recently retracted this decision. The
panel of judges has since changed and is now restructured with a conservative
majority. Perhaps, this restructuring will secure a better outcome in the
coming months that is more favorable to law enforcement.
The takeaways here are twofold: (1) judges may trend away
from granting qualified immunity to officers when there are significant
discrepancies in the record and especially when the officer fails to give a
deadly force warning, and (2) officers should be hyper-aware of their
pre-shooting conduct as that – rather than the suspect’s behavior – will be the
focus of a legal action. To avoid this judicial second-guessing, officers
should, if feasible, warn a violent offender prior to escalating to deadly
force.[15]
It is best if the officer can specify what kind of force will be used and that
said force will be used should the suspect continue resisting.
[1] Smith
v. Agdeppa (9th Circ., Dec. 30, 2022) 2022 WL 17999612 at page
41, citing District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018).
[2] Ibid at pg. 3.
[3] Cindy Chang, “Fatal shooting by Officer at 24 Hour Fitness violated LAPD policy, Police Commission rules,” Los Angeles Times (September 17, 2019). See https://www.latimes.com/california/story/2019-09-17/fatal-shooting-at-24-hour-fitness-violated-lapd-policy-police-commission-rules
[4] Kevin Rector, “9th Circuit rejects ‘qualified immunity’ as reason to toss LAPD gym shooting case,” Los Angeles Times (December 30, 2022). See https://www.latimes.com/california/story/2022-12-30/9th-circuit-lapd-gym-shooting-case
[5] Smith v. Agdeppa (9th Circ., Dec. 30, 2022) at page 15.
[6] Ibid.
[7] Ibid at page 24.
[8] Ibid at page 34.
[9] Ibid.
[10] Ibid at page 3, 5 citing Gonzalez v. City of Anaheim, 747 F.3d 789, 794 (9th Cir. 2014). The Court also emphasized the U.S. Supreme Court standard from Tennessee v. Garner, 471 U.S. 1 (1985) which declared that under the 4th Amendment, if practicable under the circumstances, a warning should be given that deadly force is going to be used.
[11] Ibid citing the dissent at page 47.
[12] Ibid citing the dissent at page 45.
[13] Ibid citing the dissent at page 49.
[14] Ibid.
[15] See also Mike Callahan, “Ninth Circuit in split decision rejects qualified immunity for LAPD cop…” Police1.com (April 12, 2023).
