Friday, June 16, 2023

 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.

[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). 

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