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Friday, May 5, 2023


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Ninth Circuit Will Reconsider Its Denial of Qualified Immunity to Officer in Shooting


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday scrapped its Dec. 20 2-1 opinion in which it denied qualified immunity to a Los Angeles police officer who fatally shot a suspect in a locker room during an attempted arrest, spurning his explanation that the man was pummeling his partner and he feared the next blow would kill her.

Ninth Circuit Judge Morgan Christen authored the majority’s opinion; signing it was District Court Judge Gary Feinernan of the Northern District of Illinois, sitting by designation. Ninth Circuit Judge Daniel A. Bress dissented.

Since then, Feinerman has left the bench and become a litigation partner in the Chicago office of Latham & Watkins. Ninth Circuit Judge Consuelo M. Callahan was chosen, by lot, to replace him on the panel.

Callahan joined Bress in voting for a rehearing; Christen opposed it. The Dec. 30 opinion and the dissent were, accordingly, withdrawn and the matter was resubmitted, presaging that the views expressed by Bress in his dissent will later appear in the majority opinion.

Bress’s Dissent

Bress said regarding that dissent:

“The two police officers in this case found themselves in a violent confrontation with a large, combative suspect, who ignored their repeated orders to stop resisting and failed to respond to numerous taser deployments. After the suspect’s assault on the officers intensified and he wrestled one of the officers’ tasers into his own hands, one officer shot the suspect to end the aggression. Two independent witnesses verified the officers’ account. Was it clearly established for purposes of overcoming qualified immunity that officers enduring a frenzied onslaught were legally required to call a “time out” and issue another warning before they used deadly force? Remarkably, the majority says yes. That is clearly wrong.”

He went on to say that Christen’s opinion “requires officers to hesitate in situations in which decisive action, even if leading to the regrettable loss of human life, can be necessary to protect their own,” adding:

“After repeated verbal commands and efforts to use non-lethal force failed, no clearly established law required these officers to recite magic words of further warning in the highly dangerous situation they confronted.”

Civil Rights Suit

Officer Edward Agdeppa and the City of Los Angeles are defendants in a civil rights action brought by Paulette Smith, mother of the decedent, Edward Agdeppa. Christen’s Dec. 30 opinion affirms a denial of qualified immunity by District Court Judge Christina A. Snyder of the Central District of California.

She ruled in response to a defense motion for summary judgment.

Christen differentiated between an ordinary police warning to a suspect and a “deadly force warning.” She wrote:

 “Here, depending on what happened in the locker room, a jury could find that Agdeppa had an opportunity to give Dorsey such a warning before escalating to deadly force. Indeed, Agdeppa provided several warnings before using intermediate force, but at no point did Agdeppa warn Dorsey that he was escalating to the use of his firearm.”

Determination for Jury

She set forth:

“It is not our place to step into the jury’s shoes and we do not know what happened in the crucial interval before Agdeppa shot Dorsey. Left to assess the evidence and witness credibility, a reasonable fact-finder could decide that Agdeppa’s characterization of the events in the locker room was contradicted by other evidence in the record. A reasonable jury could also conclude that Agdeppa had an opportunity to warn Dorsey and did not do so. Both were valid grounds for the district court to properly deny qualified immunity.”

Bress commented:

“This was not the case of a suspect who w:as shot before he had a chance to comply. By the officers1 words and actions. Dorsey was warned throughout the encounter. He w*as given numerous opportunities to stand down, and he instead ramped up his violent resistance. A suspect in this situation either knows or should know what can happen next. At the very least, it is not clearly established that the logic of our warning rule applies when all past warnings have failed, and a violent situation has grown more dire.”

He went on to say:

“[T]he dangers of today’s decision are especially ominous. At what micro-second interval in the final heated moments of this escalating confrontation was Agdeppa somehow legally required to hit the “pause button” and recite some yet-undisclosed, court- created warning script? The uncertainty the majority opinion invites stands as a further condemnation of its holding.”

The case is Smith v. Agdeppa, 20-56254.


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