Metropolitan News-Enterprise


Thursday, December 7, 2023


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Ninth Circuit:

Qualified Immunity Does Not Apply Where Officer Shot After Suspect Reached for Gun

Majority: Fact That Suspect’s Hands Were Empty at Precise Moment When Officer Fired Creates Triable Issue as to Reasonableness


By a MetNews Staff Writer


A police officer who fired twice at a suspect moments after the man reached with his right hand into the left breast pocket of his trench coat, with the butt of a gun being visible, was not entitled to qualified immunity in an action alleging excessive force, the Ninth U.S. Circuit Court of Appeals has held, over a dissent.

At the instant that Riverside Police Officer Evan Wright fired at Xavier Lopez, whom he had detained based on an arrest warrant, Lopez’s hands were empty, as reflected by body-cam evidence.

The issue was what was expected of Wright during a period of seven seconds, starting with Lopez reaching for a weapon and ending with Wright non-fatally wounding him.

Under the majority’s view, it’s up to a jury to decide if Lopez, at the precise time of the shooting, was reasonably viewed by Wright as posing an “immediate threat.” The dissent argues that qualified immunity applies where there is no “clearly established precedent” proscribing the officer’s conduct and that no case imposes on an officer the need to possess such keen reflexes as would enable the officer to veer from a perception of a necessity to shoot within mere “milliseconds” of a change in circumstances.

Ninth Circuit Judge Salvador Mendoza Jr. authored the majority’s memorandum opinion, joined in by District Court Judge James Donate of the Northern District of California, sitting by designation. Judge Gabriel Patrick Sanchez dissented.

Summary Judgment Denied

The decision, reached Tuesday, affirms a denial by District Court Judge Otis D. Wright II of the Central District of California of a motion for summary judgment filed by the officer and by the City of Riverside on the basis of qualified immunity. The judge ruled on July 8, 2022, that “a reasonable jury could conclude that Lopez did not pose an immediate threat to anyone and Wright’s deadly force was therefore not objectively reasonable.”

In his opinion affirming the District Court’s order, Mendoza said: “At what point Mr. Lopez began complying with the officer’s instructions and for how long, and whether he posed an immediate threat to officer safety, are triable questions for a jury to decide.”

He noted that “such encounters” as occurred on Jan. 26, 2021, “are tense and happen fast, and they must leave all participants riddled with indecision,” reciting that “less than seven seconds elapsed between the time Officer Wright issued his first order” for Lopez to take his hands out of his pockets “and the time he fired his first shot.” Mendoza continued:

“But in such moments, a life hangs in the balance, and the right decision must be made. In affirming the district court’s denial of qualified immunity, the Court does not find that Officer Wright made the wrong decision, only that such questions are better left to juries.”

Sanchez’s Dissent

Sanchez set forth the facts in these words:

“Officer Evan Wright shot Xavier Lopez moments after seeing Mr. Lopez reach into his coat pocket for an object the officer suspected was a firearm. Mr. Lopez ignored repeated commands to take his hands out of his pockets. The object Mr. Lopez was reaching for and holding in his coat pocket was. in fact, a loaded firearm. Milliseconds before Mr. Lopez was fired upon, he released the object and raised both hands in the air. The entire encounter—from officers announcing themselves to the shooting—lasted seven seconds.”

He wrote:

“I agree with the majority that a jury could reasonably determine that Officer Wright used excessive force in violation of the Fourth Amendment. But no clearly established law put Officer Wright on notice that deadly force could not be used in these tense and rapidly evolving circumstances.”

Sanchez elaborated that “no Supreme Court or circuit precedent clearly establishes that lethal force was unreasonable under the circumstances of this case.”

The case is Lopez v. City of Riverside, 22-55723.


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