In
an unusual and noteworthy move, the Ninth Circuit Court of Appeals reversed itself
and granted qualified immunity to a police officer who used deadly force to
stop a suspect beating his partner. The Los Angeles police officer, Edward
Agdeppa, faced a § 1983 federal civil rights action filed by the decedent’s
mother, who argued that Agdeppa’s use of deadly force was objectively
unreasonable and violated the decedent’s clearly established Fourth Amendment rights.
Although Agdeppa faced multiple legal setbacks while defending his actions, the
Ninth Circuit has ultimately ruled that he is entitled to qualified immunity.
Qualified
immunity is a legal concept used to protect police officers from personal
liability in lawsuits over harm caused while carrying out their official
duties. Qualified immunity applies unless (1) the officer violated a federal
statutory or constitutional right, and (2) the unlawfulness of their conduct was
“clearly established.”
The
lower court ruled against Agdeppa, denying his qualified immunity defense
because a jury might find that a reasonable officer would not have believed the
suspect posed an immediate threat. Agdeppa appealed the decision to the Ninth
Circuit, which issued a 2-1 decision in December 2022 upholding the denial of
qualified immunity. However, following the retirement and replacement of one judge,
the reconstituted panel decided to withdraw its ruling and rehear the case. On
August 30, 2023, the Ninth Circuit issued its new decision, holding Agdeppa is
entitled to qualified immunity because his actions did not violate clearly
established law.
Facts
of the Case
The
incident occurred in October 2018, when Officers Agdeppa and Rodriguez responded
to a Hollywood gym after receiving a report of an aggressive trespasser threatening
patrons and assaulting a security guard. Upon arrival, the officers activated
their body-worn cameras and were directed to the men’s locker room. There, they
encountered Albert Dorsey standing naked in the shower area, playing music from
his phone. Dorsey, 6’1” and weighing 280 pounds, towered over Agdeppa and Rodriguez,
5’1” and 5’5,” respectively, each weighing around 145 pounds.
For
several minutes, the officers repeatedly ordered Dorsey to turn off his music,
put on his clothes, and leave the gym. Rather than comply, Dorsey danced and
raised his middle finger, taunting the officers. Agdeppa approached Dorsey and successfully
secured one handcuff on his wrist, but failed to cuff the other wrist. Dorsey quickly
became combative and a violent struggle ensued. 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 alleged that the struggle turned more violent after
the body-cams fell. The officers can be heard heard shouting, groaning, and
crying out in pain amidst sounds of banging and thrashing.
Dorsey
was repeatedly told to stop resisting. Despite both officers deploying their
tasers multiple times, Dorsey continued resisting and overpowered them. Agdeppa
attested that Dorsey repeatedly struck him in the face and knocked him into a
wall, disorienting him and causing him to drop his taser. Agdeppa then
witnessed Dorsey straddling Rodriguez and “pummeling” her head with a “flurry
of punches,” while also gaining control of her taser. Agdeppa drew out his gun
and ordered Dorsey to stop, but Dorsey continued beating Rodriguez. It was at
this point that Agdeppa fired five shots to stop Dorsey, who subsequently died
from his injuries.
Brief
Procedural History
Dorsey’s
mother filed a § 1983 lawsuit against Agdeppa claiming he used unreasonable
deadly force in violation of Dorsey’s Fourth Amendment rights. Agdeppa moved to
have the case dismissed, arguing that the use of deadly force was objectively reasonable
and that he was entitled to qualified immunity. The lower court denied
qualified immunity, basing its decision on the U.S. Supreme Court’s broad
constitutional principle that “[w]here the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from failing to
apprehend him does not justify the use of deadly force to do so.” The lower court
ruled that because a jury could find that a reasonable officer would not have believed
Dorsey posed an immediate threat, Agdeppa was not entitled to qualified
immunity.
Agdeppa
appealed only the second prong of the qualified immunity analysis – whether his
conduct violated clearly established law. In December 2022, a Ninth Circuit three-judge
panel upheld the lower court’s decision, 2-1. However, in May 2023, a
reconstituted panel withdrew that opinion and announced it would reconsider the
case.
The
Ninth Circuit Reverses Course and Grants Agdeppa Qualified Immunity
In
its newly issued decision, the Ninth Circuit reversed the lower court and ruled
that Agdeppa is entitled to qualified immunity because his use of deadly force
did not violate clearly established law. The court explained that such a
violation occurs only when it is “sufficiently clear that every reasonable
[officer] would understand” that his or her conduct violates the law. In other words, the
violation of law must be obvious and “beyond debate.
The
Ninth Circuit explained that, according to the U.S. Supreme Court, “clearly
established law” must not be defined at a high level of generality. That is because a police officer may have
difficulty applying the abstract principles to the specific situation he or she
faces, especially in high-stress and diverse search and seizure contexts. The court
concluded that, unless it was obvious that the suspect did not pose an
immediate threat, judges should not use hindsight to second-guess officers’
real-time decisions made in rapidly evolving situations.
The
plaintiff additionally claimed that Agdeppa was constitutionally required to
warn Dorsey before using deadly force. The Ninth Circuit again found that
principle too general to defeat qualified immunity. The court emphasized that
such a warning must be given “whenever practicable” and that it “is not a
one-size-fits-all proposition.” The court recognized that there is “flexibility”
in the warning rule, making it highly context-dependent. Therefore, the lack of
a warning, on its own, is not sufficient to overcome qualified immunity.
Rather
than rely on general constitutional principles, a plaintiff must point to precedent
that “squarely governs the specific facts at issue.” While the plaintiff here offered
numerous cases, the court rejected each of them by identifying how the facts of
those cases differed from the one at hand. Because none of the cases were based
on closely related circumstances, the court found that there was no basis to
find that Agdeppa should have known that the use of force was obviously
excessive, or that a deadly force warning was required.
Takeaways:
The
Ninth Circuit’s new opinion highlights the uncertainty and intensity that
police officers face. In contrast to the lower court and rescinded opinions, this
decision reflects an appreciation of the split-second decisions that officers are
forced to make in high pressure situations. On one end of the spectrum, broad
constitutional principles are far too general to be applied in denying
qualified immunity. On the other end, decisions regarding specific factual
situations should be cabined to very similar circumstances. Combining these
concepts means that qualified immunity should generally be granted unless (1)
the use of force is so obviously excessive that it is beyond dispute, or (2) there
is binding precedent on highly analogous facts.
Nothing
in the opinion detracts from an officer’s duties to de-escalate when feasible and
give a deadly force warning when practicable. However, through this decision,
the Ninth Circuit creates a high burden for labeling conduct as violating
clearly established law, and establishes a broad framework for courts to find
that police officers are entitled to qualified immunity.
The full Aug. 30th
Opinion can be found here.
