Can Cops Smoke Weed? The Answer Remains Hazy

Effective January 1, 2024, AB 2188 amends Government Code section 12954 (Fair Employment and Housing Act “FEHA”) to prohibit an employer from discriminating against an employee or applicant for cannabis use off the job and away from work.  SB 700 further amends section 12954 to prohibit employers from requesting information from an applicant for employment relating to the applicant’s prior use of cannabis.  This legislation establishes enhanced protections for marijuana use by elevating its use to a protected status under FEHA, which protects the right and opportunity of all persons to seek, obtain, and hold employment without discrimination based upon protected statuses. This legislation has created uncertainty as to whether law enforcement officers and their employing agencies are covered by this legislation.  

The statutes cover state and local employees in California with no express exclusion of peace officers.  The only professions expressly excluded from the statute are employees in the building and construction trades. (Gov. Code, § 12954(c).) Thus, the exclusion of building and construction employees creates a presumption that peace officers are not excluded unless subject to the other exemptions related to federal legal requirements.

The bill also excludes applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies. (Gov. Code, § 12954(e).) 

Some officers assigned to federal law enforcement task forces must undergo a federal government background investigation and are likely exempt, but most do not.  Before hiring an officer, Penal Code sections 1029(a)(3), (a)(11), (c), and 1031(c) require a search of the National Decertification Index of the International Association of Directors of Law Enforcement Standards and Training and, investigations of officers’ military discharge and local and nation criminal records fingerprint files.  However, none of these investigations appears to be “a federal government background investigation,” which is not defined in the statute. Ultimately, this question will have to be resolved by clean up legislation or the courts. 

The bill also provides that it does not preempt state or federal laws requiring employees to be tested for controlled substances, including laws requiring employees to be tested as a condition of receiving federal funding or federal licensing-related benefits.  However, state and federal law generally does not require California peace officers to be tested for cannabis. Further, any drug testing policy would have to be negotiated with the officers’ labor representatives. 

Officers may nevertheless be effectively excluded from the protections of these bills if they are required to lawfully possess a firearm as a condition of their employment. 18 U.S.C. section 922(g)(3) prohibits the receipt or possession of a firearm by anyone "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)." Cannabis is classified by the federal government as a schedule I substance and therefore a user of cannabis is banned from possessing a firearm. However, possession of firearms issued by and for the use by a public entity are not covered by this federal law.  Thus, the Act covers officers who use their personal weapons on duty, but not firearms owned and issued by the employing agency.  

Further, when anyone buys a firearm from or through a firearms retailer, they are required to answer questions on the federal “4473” form. In California, there are other state forms that must also be completed, including the Dealer Record of Sale (DROS) form. The 4473 form specifically asks if the firearm purchaser is an “unlawful user” of marijuana. Even if marijuana use is legal in a particular state, it is still illegal under federal law. In order to be truthful, the individual must answer “yes” to this question if they use marijuana. The 4473 form must be signed under penalty of perjury. Committing perjury is a crime. Federal law also expressly prohibits knowingly making any false statement on the 4473. Doing so is punishable by up to ten years in prison and up to a $250,000 fine. 18 U.S.C. § 924(b).

The Ninth Circuit has held that the firearm prohibition on cannabis users is constitutional, even in the context of those with medical marijuana cards, explaining that “these laws will sometimes burden—albeit minimally and only incidentally—the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well.” Wilson v. Lynch (9th Cir. 2016) 835 F.3d 1083, 1094-95. 

However, Wilson was decided before New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 142 S.Ct. 2111 and did not consider whether the ban was unconstitutional under our historical tradition of firearm regulation.  Rather, it proceeded under the now-defunct tiered-scrutiny approach that gave the government far more deference.  Notably, Hunter Biden's legal team cited Bruen defending against similar charges by arguing the framers of the U.S. Constitution were well aware of problems caused by intoxication but there is no history of preventing substance abusers from acquiring firearms.   Post-Bruen, the lower courts are invalidating these prohibitions, but until the Ninth Circuit reverses Wilson or the Supreme Court addresses the issue, the efficacy of the federal firearm prohibitions are uncertain at best.

In conclusion, the application of these laws to peace officers remains hazy.  Given the uncertain legal ramifications at stake, officers should exercise caution all until clean up legislation is enacted or the courts provide greater guidance.  If peace officers are determined to be covered, public safety unions cannot agree to waive FEHA protections for their members. This legislation goes far beyond legalization by elevating marijuana use to protected civil right. Ultimately, the employing agencies and individual officers must comply with all applicable laws.

Attorney General Bonta Clears Detective Tonn in the Shooting Death of Sean Monterrosa

Today California Attorney General Rob Bonta announced the California Department of Justice’s (DOJ) review of the shooting death of Sean Monterrosa cleared  Detective Jarett Tonn of any criminal wrongdoing. Detective Tonn appreciates the careful and thorough review of this incident conducted by Attorney General Bonta, which confirmed that Detective Tonn’s use of force was objectively reasonable under the totality of the circumstances. All human life is sacred and this incident was tragic for everyone involved.  

The investigation found that substantial evidence supported Tonn's claim of self-defense, and that none of the evidence, including video footage, or witness accounts "contradict[ed] the essential facts of Tonn’s account."  Report determined that the witness statements and the "video footage provide a largely uncontroverted account of the events" which is sufficient to establish self-defense even without Tonn's testimony.

The Report explained the objective reasonableness of Tonn's belief that deadly force was necessary. "California law requires consideration of all of the circumstances as they were known or appeared to Tonn. It is undisputed that six seconds prior to the shooting, Horton radioed the warning: 'It looks like they’re armed, possibly armed.' Horton’s words were qualified in nature, but Tonn, Wagoner, and Pittman all stated that they took this warning to mean that the subjects at the Walgreens were carrying firearms. ... [A] warning from an experienced senior officer that appeared to be based on personal observation would be taken very seriously by Tonn."

The Report noted the totality of the circumstances supported Tonn's belief that the suspect was armed with a firearm.  "First, the hammer that Monterrosa carried in his pocket would have had the same effect on his gait and body mechanics as he ran that carrying a firearm would. The hammer was 14.5 inches long, and the hammer head was 6 inches wide."  Tonn and other witnesses observed Monterrosa run in a manner that indicated he was holding something he did not want it to fall out of his waist band.

"Second, all of the witnesses who actually saw the shooting stated that Monterrosa was running away from the officers, suddenly stopped, and made a quick turn to face the officers’ truck immediately before the shooting." "[A]ll stated that Monterrosa had one of his hands in his torso or waist area when the shots were fired." In fact, a civilian witness stated that Monterrosa was fully facing Tonn at the time shots were fired.  No witnesses contradicted this testimony.  

The Report also noted that Tonn's decision to shoot from inside the vehicle corroborated his belief that he had to "shoot now or someone gets shot." This is because doing so is inherently dangerous for the officers in the vehicle. 

The report explained the importance of an officers' state of mind:

"Tonn’s knowledge and state of mind going into the incident must also be considered. In his statement, he discussed the facts that made him particularly concerned about encountering armed subjects on June 1, 2020. He was aware of reports of looters targeting gun stores in the days before June 1, 2020.  He was aware of multiple firearms-related calls on June 1, 2020. In particular, 911 calls had been made that evening regarding armed looters. He also was aware of intelligence reports warning of violence directed at law enforcement and that a law enforcement officer had been shot and killed several days earlier in a drive-by shooting in a nearby county."

The DOJ's expert "opined that the use of the deadly force against the 'unarmed, but perceived to be armed and dangerous, Sean Monterrosa was consistent with generally accepted policing best practices and VPD’s Use of Force Policy.'”  The DOJ's expert "concluded that Detective Tonn’s actions, during the time when he believed that Mr. Monterrosa was armed and posed an immediate threat to him and others, 'were reasonable, necessary and proportional to any imminent threat he may have perceived and comported with law enforcement training with respect to using deadly force.'” 

Noting that an officers' conduct cannot be considered with the benefit of hindsight and taking into account that officers are often forced to make quick judgments, the Report stated Tonn's tactics in the moments preceding the shooting were objectively reasonable.

The Attorney General concluded, "[b]ased on the totality of circumstances, a reasonable officer could have believed that Monterrosa was armed and reaching for a firearm." These findings affirm prior determinations that Tonn acted lawfully in self-defense and defense of others.

Detective Tonn was represented by Joshua Olander from Mastagni Holstedt, APC.

The full Report on the Investigation issued by the DOJ today can be found here.

New RIPA Regulations Violate DFEH Laws By Requiring Peace Officers to Disclose Their Gender Identity

New regulations adopted by Department of Justice (DOJ) regarding RIPA, the California Racial and Identity Profiling Act of 2015, reporting requirements conflict with anti-discrimination protections afforded to all California employees. RIPA was enacted to address concerns of bias and discrimination through racial and identity profiling within law enforcement agencies. RIPA requires officers to report their perception of personal characteristics of the individuals stopped (e.g., age, gender identity, sexual orientation, race/ethnicity) along with the reasons for the detention/search, additional actions taken by the officer, and the outcomes of the stop.  Officers submit this information to their employing agency, who then submits the data to the DOJ without the name or other unique identifying information of the peace officer involved. (Gov. Code § 12525.5.)  The data submitted to the DOJ ultimately becomes a public record.

The RIPA statute also authorizes the Attorney General to issue regulations for the collection and reporting of data that specify all data to be reported, and provide standards, definitions, and technical specifications to ensure uniform reporting practices across all reporting agencies.  AG Bonta has enacted new regulations that require officers to report personal information about themselves, including their own gender identity beginning January 1, 2024.  

However, under the California Fair Employment and Housing Act (FEHA) regulations, it is illegal for an officers' employing agency to require an employee to disclose that information.  As a result, the RIPA regulation should likely have been rejected by the Office of Administrative Law (OAL) for failing the “consistency” standard, which requires “being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law.” (Gov. Code § 11349(d).) The OAL is required to return any regulation that “conflicts with an existing state regulation and the agency has not identified the manner in which the conflict may be resolved.” (Gov. Code § 11349.1(d)(4).)  

New Regulation

The new regulations were purportedly enacted to “enable the Board to determine whether there is a link between officer’s race and/or gender and (1) racial and identity profiling and/or (2) the decision making of the officer.”  Paradoxically, the new regulations will force the most vulnerable officers to disclose their gender identity to their public employers.  Under the regulation, “‘Gender of Officer’ refers to the officer’s identified gender. When reporting this data element, the officer shall select all applicable data values set forth in section 999.226, subdivision (a)(6)(A).” 

1. Cisgender man/boy

2. Cisgender woman/girl

3. Transgender man/boy

4. Transgender woman/girl

5. Nonbinary person

Conflict with DFEH Employee Protections

Once that amendment becomes operative, there will be conflict between RIPA and FEHA. In 2017, amendments were made to FEHA regulations that prohibited employers from asking employees about their gender. Under FEHA, Cal. Code Regs. tit. 2 § 11034 Terms, Conditions, and Privileges of Employment:

“(i) Additional Rights

(1) It is unlawful for employers and other covered entities to inquire about or require documentation or proof of an individual's sex, gender, gender identity, or gender expression as a condition of employment.”

The new RIPA regulations effectively force an officer to disclose their gender to their employer, in violation of FEHA. The California Department of Justice (DOJ) justifies this requirement reasoning that Government Code section 12525.5, subdivision (e) authorizes the Attorney General to issue regulations to “specify all data to be reported” under RIPA. However, that provision does not give the Attorney General authority the nullify employee protections under FEHA by requiring disclosure of otherwise private information. FEHA clearly states, “[a]ny state law that purports to require or permit any action that would be an unlawful practice under this part shall to that extent be invalid.” 

During RIPA’s Proposed Rulemaking Action comment period, concerns were raised about the conflict between RIPA and FEHA in requiring gender self-identification. The DOJ oddly responded addressing race and ethnicity, but not gender: “the Department has not identified any provision within the FEHA or within its implementing regulations that would prohibit the collection of race or ethnicity of an officer for purposes of stop data or other types of data.”  (Emphasis added.) (The DOJ either misinterpreted or dodged another comment asking: “What if the officer does not identify with these limited categories?” The DOJ’s response discussed the requirement of reporting the perceived gender of the person stopped rather than of the officer. )

Furthermore, the collection of such data is easily distinguishable from forced disclosure. This conflict between an employer’s reporting requirements and an employee’s privacy rights arises in other contexts. For example, when employers must request information related to gender for legally required reporting, such as federal EEO-1 Reports, employee disclosure of that information must be voluntary. Employees can be asked to self-identify their gender, but if they decline to do so, federal law requires employers to identify the employee’s gender based on employment records or other reliable information.  Similarly, here, an officer’s self-identification should be voluntary.

In support of its position that the California Legislature has required employers to provide demographic information to the state, the DOJ references California Government Code section 12999 which obligates “private employers of 100 or more employees to report to Department of Fair Employment and Housing pay and hours-worked data by job category and by sex, race, and ethnicity.” The California Civil Rights Department (CRD) states that “[e]mployee self-identification is the preferred method of identifying sex information. If an employee declines to state their sex, employers must* still report the employee according to one of the three sex categories, using current employment records or other reliable records or information, such as an employee’s self-identified pronouns.”  

It is likely that RIPA could legally impose the same practice. However, as currently written, RIPA requires the employee to “select all applicable data values” and leaves no option for other methods of data collection.

Moreover, according to the CRD, “[u]nder the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and non-binary. Therefore, employers should report employees’ sex according to these three categories.”  Accordingly, the RIPA data collection should not go beyond these categories.

The recent RIPA amendments added another data point requiring the self-identification of an officer’s race or ethnicity.  However, there is no FEHA regulation related to race or ethnicity that is analogous to Cal. Code Regs. tit. 2 § 11034(i)(1) which prohibits any inquiry into an individual’s gender. 

Still, the above-mentioned state and federal regulations related to pay data follow the practice of encouraging employee-self-identification, but, if that is not voluntarily provided, allowing the employer to identify the employee’s race or ethnicity based on employment records or other reliable information. Nevertheless, because there is no specific prohibition on inquiring about race or ethnicity, it is likely that RIPA could require such self-identification by an officer.

Conclusion

If an officer declines to voluntarily self-identify their gender to their employing agency, the agency could comply with the RIPA regulations by reporting based on employment records or other reliable information, as is the practice with state and federal pay data reporting requirements. However, uncertainty exists regarding whether the RIPA statute and regulations are permit such an arrangement.  Thus, compliance with these regulations by ordering officers to disclose their gender identity creates significant potential liability for local agencies under California's antidiscrimination statutes.  Public safety unions may wish to meet and confer with their employing agency regarding whether such disclosures are voluntary or mandatory.  

 

Terminated for Tweeting “All Lives Matter”: Eastern District Court Finds Political Retaliation Plausible and Allows Wrongful Termination Lawsuit Involving Sacramento Radio Host, Grant Napear, to Move Forward

         The case continues for former Sacramento Kings radio announcer, Grant Napear, as the Eastern District Court rules that Napear’s wrongful termination lawsuit may proceed under his political retaliation claim. Napear filed a wrongful termination lawsuit against his former employer, Bonneville International Corporation, who terminated Napear in May 2020 after he tweeted that “ALL LIVES MATTER…EVERY SINGLE ONE” during the height of the George Floyd-inspired unrest. Napear’s May 31, 2020 tweet responded to the question he received on Twitter from a former Kings player: “What’s your take on [Black Lives Matter]?”

        Bonneville terminated Napear on June 2, 2020, merely 36 hours after his tweet, under the determination that Napear’s tweet could likely discredit the station’s reputation. Bonneville terminated Napear for cause as defined in his employment contract, which states that “the term ‘Cause’ shall be defined as any of the following conduct by Employee, as determined by the Company in its reasonable discretion:…Any act of materials dishonesty, misconduct, or other conduct that might discredit the goodwill, good name, or reputation of the Company.”   

     Napear, the plaintiff, filed a federal employment discrimination and retaliation lawsuit against Bonneville in October 2021 alleging that Bonneville terminated him due to his religion, race, gender, and political views. In April 2023, the Court dismissed Napear’s complaint with leave to amend on the finding that Napear failed to allege sufficient facts showing that Bonneville knew of Napear’s religious beliefs, let alone that it had discriminated against him on the basis of those beliefs. Napear filed an amended lawsuit in May 2023.  

       In July 2023, the Eastern District Court ruled that Napear’s amended claim may proceed on the grounds of retaliation, but tossed Napear’s religious discrimination claim without leave to amend. Judge Dale A. Drozd ultimately ruled that Napear sufficiently stated a plausible claim for retaliation under California Labor Code §§ 1101 and 1102, which limit an employer’s ability to fire employees for their political activities.  

ON THE AMENDED SUIT & RELIGIOUS DISCRIMINATION 

      In May, Napear filed an amended suit asserting three claims: (1) wrongful termination in violation of public policy; (2) discrimination on the basis of religion in violation of the California Fair Employment and Housing Act, California Gov. Code § 12940 (“FEHA”); and (3) retaliation in violation of California Labor Code §§ 1101 and 1102. In the Second Amended Complaint (SAC) filed on May 11, 2023, Napear alleged that he “periodically spoke with his coworkers…about his religion and his faith in God.” He argued that his tweet was a “personal expression” of his “sincerely held Christian religious beliefs,” that the tweet was a “self-evident expression” of those beliefs, and that “[m]any people…including…[his] coworkers” and “members of the public” understood the tweet to be an expression of his “Christian religious beliefs.” 

     Bonneville, the defendant, filed a motion to dismiss Napear’s SAC in its entirety and relatedly argued that Napear’s allegations only suggested that his coworkers knew of his religious beliefs, not that any person directly involved with his termination knew of those beliefs. 

    The Court granted defendant’s motion to dismiss Napear’s religious discrimination claim without leave to amend. The Court noted that the facts alleged by Napear “do not give rise to the inference that [Napear’s] termination could have been based on religious animus” and therefore, the Court concluded that Napear failed to state a plausible claim for religious discrimination. Napear’s allegations do not suggest that Bonneville knew of the purported religious nature of Napear’s tweet nor that Bonneville knew of Napear’s religion more generally, before terminating him. Moreover, the Court noted that there was nothing contained in the tweet itself, such as a quotation to scripture or a reference to religion, indicating that the tweet was in any way religious in nature. 

ON POLITICAL RETALIATION 

      Next, the Court examined Defendant’s move to dismiss plaintiff’s claims brought under California Labor Code §§ 1101 and 1102. These sections serve to protect the fundamental right of employees to engage in political activity without interference by employers. California Labor Code § 1101 provides that “[n]o employer shall make, adopt, or enforce any rule, regulation, or policy: (a) forbidding or preventing employees from engaging or participating in politics…[or] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Similarly, § 1102 prohibits an employer from attempting to coerce or influence its employees’ political activities through the threat of discharge. 

       In its motion to dismiss plaintiff’s claims, Bonneville argued that plaintiff failed to state a claim under §§ 1101 and 1102 because he had not alleged that 1) Bonneville had a rule within the meaning of section 1101; 2) that the tweet constituted political activity; and 3) that defendant’s motivation in terminating Napear was political. The Court remained unconvinced by Bonneville’s assertion that it fired Napear as an apolitical business decision. The Court noted that Napear did sufficiently allege a rule within the meaning of § 1101. Napear met this standard by alleging that Bonneville used his termination as a warning to other Company employees that anyone who publicly criticized the Black Lives Matter movement (BLM) would be summarily terminated. 

      On the issue of whether Napear’s tweet constituted “political activity,” the Court considered Napear’s tweet to be facially political in nature when construed in the light most favorable to plaintiff. The tweet contained the phrase “All Lives Matter” in response to the question “What’s your take on BLM?”; was published by public figures; and was made just days after George Floyd’s death. These allegations were sufficient to allege that Napear’s tweet was political speech regarding a specific cause and could plausibly constitute political activity under §§ 1101 and 1102. 

       Napear’s amended claim also highlighted Bonneville’s political motivations underpinning the termination. Napear’s termination came swiftly, as did Bonneville’s public statement which noted that Napear’s tweet did not reflect the views or values of the company and that Napear’s tweet “was particularly insensitive.” Napear also contended that all seven individuals involved in his termination objected to the political and/or religious nature of his tweet and had expressed negative emotion in response to his “All Lives Matter” statement. Collectively, these allegations, the Court concluded, were sufficient to plausibly suggest that Napear’s political activity – which included posting a tweet containing a certain message – motivated Bonneville to terminate him. As such, Napear’s political retaliation claims under §§ 1101 and 1102 will move forward. 

TAKEAWAYS

   Two lessons emerge from this ruling. The first is that an employee claiming wrongful termination on the basis of religious discrimination must prove that the employer acted with a discriminatory motive. This involves showing that the employer knew of the employee’s religion, that those involved in making the decision to terminate the employee were aware of the employee’s religious beliefs, and that the employee was terminated due to those beliefs. A tweet isn’t religious just because the person posting it says it is. 

   Secondly, an employer’s use of a termination as a warning to other employees of intolerable conduct may be construed as a rule under § 1101, and thus give rise to a political retaliation claim. As Judge Drozd noted, “defendant used [Napear’s] termination ‘as an example to all other employees of the Company as an implicit warning that anyone that dared to speak out publicly and criticize the politics of the Black Lives Matter movement would be summarily terminated.’” This ruling serves as a warning to employers of the perils of view point discrimination against employees whose political beliefs differ from their own.

You can access the full July 25, 2023 Court Order here. 

SIGN UP REMINDER: Lunch & Learn POST Class Tomorrow, Oct. 18 on "Demystifying the New Decertification Process Under S.B. 2"

Join us tomorrow via Zoom as our attorneys, David E. Mastagni and Joshua Olander, present a class on "Demystifying the New Decertification Process Under S.B. 2." Class starts at 11:30 A.M. and is expected to end around 2:30 P.M.

The class provides an overview of the national standards for licensing police officers and aims to familiarize students with the grounds for decertification with a focus on the current legislative fight in California over Senate Bill No. 2. 

To register, you can go to our "Upcoming Events" page on our website. Click here to be redirected to the event sign up webpage. Click on the class (or classes) you wish to attend and enter in your contact information, including your POST ID. Once registered, you will receive a Zoom link. Alternatively, you can also email us at register@mastagni.com to register. 

Please contact us if you are having issues receiving the Zoom link or if you have any questions about our course offerings. The full list of our Lunch and Learn classes can be found on our flyer below. 

Thank you and we hope to see you soon! 

The Ninth Circuit Establishes Broad Scope of Qualified Immunity in Case Involving Officer Who Shot Suspect Beating His Partner

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. 30^th Opinion can be found here. 

Watch David E. Mastagni's Oral Argument in the Ninth Circuit Court of Appeals on Behalf of Ventura County Deputies and Firefighters

In Anthony Sanders, et al. v. County of Ventura, current and former members of the Ventura County Deputy Sheriffs’ Association (“DSA”) and the Ventura County Professional Firefighters’ Association (“PFA”) filed an FLSA lawsuit challenging the County's unlawful pay practice of imposing an involuntary deduction from the earnings of employees who waive health insurance in order to defray the benefit costs of other employees.  The suit alleges the fee constitutes an illegal kickback of wages.  The County unilaterally imposed this "Opt-out Fee", which subsumes most of the Flexible Benefit Allowance (“Allowance”) paid to the Plaintiffs as income. 

On August 22, 2023, David E. Mastagni argued this case before the Ninth Circuit Court of Appeals. This appeal seeks reversal of the district court’s error in granting the County's cross-motion for summary judgment/adjudication based entirely upon its finding that the involved Flexible Benefits Plans were “bona fide” and the County’s cash-in-lieu payments were “incidental.”  The bona fide dispute is not dispositive of the claims raised in Plaintiffs/Appellants’ lawsuit. 

The County admitted that the opt-out fee is first paid to Plaintiff as gross income within the meaning of I.R.C. § 61 and reflected in Plaintiffs’ paystubs as earnings. David argued that because the full Allowance is paid directly to Plaintiffs prior to the deduction of an “Opt-out Fee”, the fee cannot be excluded from the regular rate of pay. In short, plaintiffs contend direct payments to employees who waive health insurance, the opt out fee cannot be excluded from the employee’s “regular rate of pay” pursuant to 29 U.S.C. § 207(e)(4). Flores v. City of San Gabriel, 824 F.3d 890, 901-02 (9th Cir. 2016), cert. denied, 137 S. Ct. 2117 (2017).  

However, this action is primarily a dispute over whether the fee constitutes an unlawful deduction for which Plaintiffs are entitled to restitution.  Because the FLSA involves overtime claims, the suit seeks restitution by alleging no overtime can be deemed paid until these Opt-out Fee deductions are repaid.  The FLSA also prohibits deductions unless they are voluntary and the employer derives no benefit from the deduction.  Here, Plaintiffs contend the deductions are involuntary and benefit the County by defraying its labor costs.  Finally, the FLSA requires overtime rates to be calculated on a pre-deduction basis. 29 C.F.R. § 531.37(b). 

Watch the oral arguments below:

Mastagni Holstedt Partner Joins PERB Advisory Committee

Kathleen N. Mastagni Storm, a partner in our Labor and Employment Department, has been asked to join the Public Employment Relations Board’s (PERB) Advisory Committee for its Panel of Neutrals Listing.

PERB is a quasi-judicial administrative agency that administers and enforces collective bargaining statutes like the Meyers-Milias-Brown Act (MMBA) and resolves claims of unfair labor practices. PERB also oversees the factfinding process, which involves a three-person panel that hears evidence on negotiation issues in dispute and provides findings of fact and recommendations for settlement. This process is similar to interest arbitration proceedings in that the panel can conduct investigations and hold hearings, but it is non-binding.

PERB’s Advisory Committee for its Panel of Neutrals Listing reviews and provides feedback on applications from those wishing to join PERB’s list of neutral factfinders. The Advisory Committee is composed of both union and management representatives. Kathleen, a well-known union advocate at PERB, will have the opportunity to provide labor’s perspective on those seeking to serve as factfinders with PERB. Once approved, the factfinder may be chosen to serve on a factfinding panel.

Kathleen is honored PERB asked her to participate on the Advisory Committee and looks forward to being involved in the process and assisting in growing the list of neutrals with expertise and experience in labor law.

Ninth Circuit Rules Use of Deadly Force Objectively Reasonable to Stop Suspect Pointing a Replica Gun at Officers

    

    Amid increased scrutinization of deadly officer involved shootings, the Ninth Circuit Court of Appeals recently vindicated the objectionably reasonable standard in analyzing lawsuits involving the use of deadly force by peace officers. In Estate of Strickland v. Nevada County, 69 F.4th 614 (9th Cir. 2023)[1], the Ninth Circuit affirmed the district court’s dismissal for failure to state a claim of an action brought pursuant to 42 U.S.C. § 1983 and state law, alleging that police officers used excessive force when they shot and killed Gabriel Strickland after he pointed a black airsoft rifle in their direction. The Court held that the responding officers’ use of deadly force was justifiable and objectionably reasonable under the totality of the circumstances, even though Mr. Strickland was in possession of a replica firearm.

 

    On January 1, 2020, dispatch received reports that a man was walking on a residential road with “what appeared to be a shotgun” slung over his shoulder. Officers from Grass Valley Police Department and Deputies from Nevada County Sheriff’s Office responded to the scene. The responding personnel recognized Strickland and knew he was homeless, suffered from mental health issues, and had been released from custody days before.

 

  The officers maneuvered their patrol vehicles around Strickland and surrounded him with service weapons drawn. The officers immediately ordered him to put down the gun. Strickland held the gun away from his body, said, “It’s a BB gun,” and then slapped the gun with his hand, making a noise that sounded more like plastic than metal. The officers continued to yell commands to Strickland to drop the gun and that they could not confirm the firearm was fake. Strickland pointed to the orange tip on the barrel. One officer responded, “You could have painted that…we don’t want to kill you.” Strickland replied, “I’m not doing nothing wrong.” Until then, Strickland stood with the barrel pointing at the ground.

 

    One officer tried tasing Strickland but failed to attach and disarm him. Seconds later, Strickland lowered the barrel toward the officers, who then shot and killed Strickland. Strickland’s Estate filed suit alleging excessive force under 42 U.S.C. section 1983 and California law.

    The Appellate Court considered whether the officers here employed an “objectively unreasonable” amount of force under the “totality of the circumstances.” See Brooks v. Clark County, 828 F.3d 910, 920, 922 (9th Cir. 2016). The Court explained that this inquiry required balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989). These factors included:

1.    “The type and amount of force inflicted.”

2.    “The severity of the crime at issue.”

3.  “Whether the suspect posed an immediate threat to the safety of the officers or others.”

4.   “Whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”

     The appellate court noted that other factors should be considered, including “the availability of less intrusive alternatives to the force employed, whether proper warnings were given, and whether it should have been apparent to officers that the person they used force against was emotionally disturbed.” S.B. v. County of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017).

 

    The Ninth Circuit explained that of all the use-of-force factors, the “most important” is whether the suspect posed an “immediate threat.” Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010); Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The Court stated that because this inquiry was about objective reasonableness, “the objective facts must indicate that the suspect posed an immediate threat to the officer or a member of the public.”

 

    While it is “clearly established that shooting a nonthreatening suspect would violate the suspect’s constitutional rights”, the Court noted that it was well-settled under Ninth Circuit precedent that lethal force is justified if an officer has “probable cause to believe that a suspect poses a significant threat of death or serious physical injury to the officer or others.”

 

    The Court also explained that officers can have reasonable but mistaken beliefs regarding the facts establishing the existence of an immediate threat, and “in those situations, courts will not hold that they have violated the Constitution.” Saucier v. Katz, 533 U.S. 194, 206 (2001). Thus, the Constitution even allows for an officer’s action that resulted from a reasonable “mistake of fact.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009). When an officer’s “use of force is based on a mistake of fact, courts ask whether a reasonable officer would have or should have accurately perceived that fact.” Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011).

 

    The pivotal moment occurred when Strickland pointed the replica gun in the officers’ direction. At that point, they had “probable cause to believe that Strickland posed a significant threat of death or serious physical injury” to themselves, and it became objectively reasonable for them to use lethal force. The Court noted that when a suspect points a gun in an officer’s direction, “the Constitution undoubtedly entitles the officer to respond with deadly force.” Citing, George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013).

 

    The analysis remains the same regardless of whether the weapon turned out to be a replica, given the officers’ reasonable belief that Strickland possessed a real firearm. Even in the light most favorable to Strickland, he was carrying a replica gun, disregarded multiple warnings to drop it, and pointed it at the officers. Therefore, under the totality of the circumstances, it was objectively reasonable for the officers to believe Strickland posed an immediate threat even though he only had a replica gun. The Ninth Circuit concluded that the officers’ mistaken belief that Strickland possessed a dangerous weapon was reasonable, and they were justified in the use of deadly force when he pointed it at them.  

Practical Implications:

    Even in the current political climate in California, this decision upholds long-standing due process and self-defense standards pertaining to the use of deadly force. Thankfully, the appellate court recognized that officers do not have to wait until they are fired upon to confirm that a weapon is real, before they can respond to a perceived deadly threat.

Photo from ABC10's news coverage from January 24, 2020. 

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[1] Link to the Ninth Circuit Opinion in Estate of Strickland v. Nevada County 

David E. Mastagni Testified Against Bill (SB 519) Allowing “Local Detention Monitor” to Interrogate Peace Officers

On July 11, 2023, David E. Mastagni testified before the Assembly Public Safety Committee to oppose SB 519 on behalf of PORAC.  David focused the opposition on the powers this Bill would grant a newly created “Local Detention Monitor” to impair labor contracts and interrogate local peace officers regarding in-custody deaths without regard to their rights against self-incrimination.

As introduced by Senate President pro Tempore Toni G. Atkins, SB 519 would have provided that a board of supervisors may establish a department of corrections and rehabilitation to be headed by an executive officer appointed by the board and thus facilitate boards of supervisors cutting corners to reduce labor costs by supplanting sworn jail personnel and replacing them with lesser trained civilians.  SB 519 also provides that notwithstanding the general confidentiality of peace officer records or any other law, records relating to an investigation conducted by the local detention facility involving a death incident and any local detention facility personnel records shall not be confidential and shall be a public record.

PORAC opposed the sections of the Bill facilitating civilianization of local jails.  PORAC did not oppose the disclosure of records relating to an investigation conducted by the local detention facility involving a death incident, but did raise concerns with the language of this section. 

The Bill was amended on July 5, 2023.  These amendments addressed PORAC’s disclosure concerns and eliminated the provisions for civilianizing local jails.  However, the amendments replaced these sections of the Bill with new language establishing a statewide Local Detention Monitor with expansive powers including the ability to compel local employees to submit to interrogations without provision of their Constitutional rights.  The bill states, “[t]he Local Detention Monitor may require any employee or contractor of the local detention facility to be interviewed … Any employee or contractor requested to be interviewed shall comply….”

Thus, the Bill purports to force employees to waive their 5^th Amendment Rights by mandating cooperation with no option to exercise the right to remain silent.  By comparison, the peace officer licensing statute (SB 2) states, “the lawful exercise of rights granted under the United States Constitution, the California Constitution, or any other law shall not be considered a failure to cooperate.” (Penal Code Section 13510.8(b)(8).)

At the Public Safety Committee hearing, David explained that PORAC does not oppose the establishment of a local detention oversight entity with the authority to review in-custody death investigations, and to issue reports and recommendations for improvements.  But PORAC does object to the authority granted the oversight entity because those powers impair its members’ labor and Constitutional rights.  David articulated PORAC’s concerns.

First, the Bill expressly provides for the impairment of existing labor contracts.

Second, the Bill purports to grant the monitor the power to compel union members to submit to interrogations without proper legal authority which is derived from the employment relationship or licensing authority.  The compulsion to cooperate in such investigations is based on the threat of discipline or loss of license.  The Monitor has no employment relationship nor licensing authority, and thus no power to compel cooperation or testimony.

Third, the Bill violates employees’ right against self-incrimination under the 5th Amendment because in-custody death investigations often involve potentially incriminating questions. In Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985) our Supreme Court carefully balanced public employers’ need to investigate against public employees’ 5th Amendment rights by holding an employer can compel potentially incriminating questions so long as the employee is granted immunity.  Spielbauer v. County of Santa Clara (2009) 45 Cal. 4th 704, 725 clarified that public entities cannot require “as a condition of remaining on the job” that public employees “surrender his or her right against criminal use of [such] statements.”  

Chief Legislative Advocate Randy Perry, David E. Mastagni and Timothy K. Talbot intend to continue discussions with the author to address the concerns raised at the hearing.  The Public Safety Labor Blog will provide updates on this important legislation. 

You can view the entire hearing here: 

Assembly Public Safety Committee, Tuesday, July 11, 2023

The California Supreme Court Denies Police Officers Broad Immunity Claims in Negligence Suit Alleging Officers Left Dead Body Exposed for Hours

  On June 22, 2023, the California Supreme Court held Government Code § 821.6 does not provide broad immunity to police officers for allegedly negligent actions in the course of a law enforcement investigation. [Leon v. County of Riverside, 2023 WL 4112144]

In Leon, the spouse of a man shot and killed in his driveway sued the responding peace officers for negligent infliction of emotional distress for allegedly leaving his naked body exposed to the public for eight hours.  The Court confirmed that while other provisions of the Government Claims Act may confer immunity for certain investigatory actions, , section 821.6 of the Government Claims Act does not broadly immunize police officers or other public employees for any and all harmful actions they may take in the course of investigating crime.

 

           José Leon was shot and killed in a driveway near his home. Upon arrival at the scene, Riverside County Sherriff’s deputies heard additional shots. They moved Mr. Leon’s body behind a vehicle so that they could attempt to revive him but were unsuccessful. The movement caused Mr. Leon’s pants to drop to his ankles and expose his naked body. Mr. Leon’s body remained uncovered for approximately eight hours while officers searched for the shooter and investigated the shooting. The officers ultimately determined that the shooter had killed himself shortly after killing José. José’s wife, Dora Leon, sued the County of Riverside for negligent infliction of emotional distress.

 

 

           During summary judgment proceedings, the County of Riverside argued that its employees were immune under section 821.6 for “all conduct related to the investigation and filing of charges.” Because the suit arose from steps taken while investigating a homicide, the County argued, both the employees and their employer were immune from liability. More specifically, the County’s position was that injuries caused by police investigations qualify because of the close relationship between investigations and prosecutions. The trial court agreed and entered judgment for the County. The Court of Appeal affirmed that relying on a line of appellate cases that previously “consistently construed section 821.6 as immunizing a public employee from liability for any injury-causing act or omission in the course of the institution and prosecution of any judicial or administrative proceeding, including an investigation that may precede the institution of any such proceeding.” 

 

Supreme Court Disagrees with Previous Court of Appeal Decisions Regarding Claims Act Immunity Under Section 821.6 of the Government Claims Act:

 

           The Supreme Court granted review and held that section 821.6 of the Government Claims Act protects public employees from liability only for initiating or prosecuting official proceedings, thereby disapproving the prior line of appellate cases. Due to the fact the provision of the Government Claims Act relied on by the County did not apply, the County was not immune from the claim for negligent infliction of emotional distress claim. The Court reasoned that while many Courts of Appeal extended section 821.6 immunity to claims for injuries caused by official conduct other than the initiation or prosecution of a proceeding, including claims of harm stemming from police investigations, that conclusion is inconsistent with section 821.6’s text and history, as well as Supreme Court precedent. Specifically, the language of 821.6 does not cover investigatory acts because an investigation does not constitute the initiation or continued prosecution of official proceedings. The Court also found that the Legislature recognized, and the courts should respect, the traditional distinction between mere investigation and the prosecution of legal action. The Court explained that the County’s argument that injuries caused by police investigations qualify because of the close relationship between investigations and prosecutions was at odds with the plain meaning of the statutory language. The Court also highlighted the fact that investigations often do not lead to the institution or prosecution of any proceedings, which is what happened in this case. 

 

           Finally, the legislative history also contains no suggestion that the statute was also designed to create broad immunity for police officers engaged in investigation. Thus, when a claim of injury does not stem from the initiation or prosecution of proceedings, section 821.6 immunity does not apply.  Due to the fact that section 821.6 prosecution immunity was the only defense addressed by the trial court and Court of Appeal, the decision did not address other immunity defenses raised by the County, and the case was remanded for further proceedings consistent with the Court’s opinion.

 

          This ruling has limited impact given the legislative changes under Senate Bill 2, which became effective January 1, 2022.  Under S.B. 2, the state immunity provisions in sections 821.6, 844.6, and 845.6 of the Government Claims Act no longer apply to any cause of action brought against any peace officer, custodial officer, or directly against a public entity that employs them.     However, the decision is important as it demonstrates that the Supreme Court of California is inclined to take up issues that will narrow the immunities and protections previously available to public employees.

 Qualified Immunity and Deadly Force Warnings: Ninth Circuit Votes Sua Sponte to Rehear Denial of Qualified Immunity for Officer Who Shot Suspect Beating His Partner

The qualified immunity defense battle continues as the Ninth Circuit Court of Appeals agreed 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 denying a qualified immunity defense “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 2-1 decision upholding the denial of qualified immunity. The Court, however, agreed to rehear the case and ultimately tossed out their previous December ruling.

Facts of the Case: 

    The case begins in October 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.

    Officer Agdeppa 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 

    In December 2022, the Ninth Circuit rejected Agdeppa’s 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 

    Disputed facts aside, the question still remains regarding whether or not 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 concluded therefore that there was no evidence that Agdeppa warned Dorsey that deadly force would be used if Dorsey kept resisting.

    The majority noted that the court “has long held that the Fourth 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]

    The dissent noted that Agdeppa saw the suspect "pummeling" his partner with punches while she was laying in the fetal position and believed he would kill her unless stopped.  The dissent disagreed that it was practicable to warn that deadly force would be used and objected to the majority's requirement that the warning be so specific and precise that the suspect has no doubt deadly force is about to be used.  The dissent noted that the majority's standard could prevent officers from surviving such violent encounters by requiring officers to hit a "pause button" amidst an escalating confrontation to "recite some yet-undisclosed, court created warning script." 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 

   Thankfully, the Ninth Circuit panel that heard this case voted sua sponte to grant panel rehearing, so the majority and dissent are withdrawn and a new decision shall be issued in the near future.

    The prior opinion had the potential to create rather ominous consequences and 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. 

   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 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.

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[1] Smith v. Agdeppa (9^th 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, “9^th 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 (9^th 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 (9^th 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 4^th 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).