Metropolitan News-Enterprise


Friday, February 9, 2024


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Officer Used Excessive Force in Shooting at Mentally Ill Homeless Man—Ninth Circuit


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of summary judgment in favor of a Los Angeles police officer who fired two shots at a houseless man who is suffering from mental illness, holding that qualified immunity is not available.

Actions taken by Officer Jonathan Concetti against plaintiff John Penny, who survived his wounds, were not “objectively reasonable,” a memorandum opinion says. It was signed by Judges Marsha S. Berzon, Daniel Aaron Bress, and Johnnie B. Rawlinson and affirms an order by District Court Judge Dolly M. Gee of the Central District of California.

The plaintiff was shot at a Venice Beach homeless encampment. A 10-minute confrontation was captured on officers’ body cameras.

LAPD Account

According to a Los Angeles Police Department advisory:

“On August 14, 2019, around 5:50 p.m., uniformed officers assigned to Pacific Patrol Division responded to a radio call of a screaming man at Thornton Court and Pacific Avenue. Upon arriving at the location, the officers encountered the suspect, John Penny, who was initially armed with a glass bottle. Penny refused to drop the bottle and approached officers. The officers deployed a taser, however it appears the darts did not strike Penny. Penny then armed himself with a three-foot-long wooden plank and again approached the officers, which resulted in an Officer-Involved-Shooting. Penny was struck once in the left arm and once in the left thigh. The officers also deployed one round from a beanbag shotgun and one 40mm round.”

Yesterday’s opinion says:

“First, Penny did not commit any serious crime. The only potential crime committed was resisting arrest, a ‘minor’ offense….Second, Penny did not pose an immediate threat to Officer Concetti or any of the twelve other officers present. Although Penny held onto a wooden board at the time of the shooting, he held it perpendicular to his body, like a shield, and ‘did not brandish [it] at anyone.’…Officer Concetti had plenty of officer cover as well as space to move away from Penny. Third, when Officer Concetti shot him. Penny was not attempting to flee….And although he disobeyed Officer Concetti’s repeated command to ‘get back,’ thereby arguably resisting arrest, Penny’s noncompliance did not present an immediate threat. Penny’s noncompliance thus did not rise to a level of behavior justifying the use of deadly force against him.”

No Warnings

The opinion adds:

“Officer Concetti relayed no warnings; the officers had less intrusive means of force available such as a taser, a beanbag shotgun, or a projectile launcher; and Penny was visibly emotionally disturbed during the confrontation in a way that did not present an immediate threat….There were thirteen officers on the scene when Concetti shot Penny. Further, Officer Concetti in his mind determined that he would shoot if Penny came a certain distance from him but did not warn Penny not to come that close or he would be shot. Instead, Officer Concetti continued to walk towards Penny, an emotionally disturbed individual, rather than backing off into the large surrounding open space. Officer Concetti’s decision to shoot Penny was objectively unreasonable and therefore excessive force, in violation of Penny’s Fourth Amendment rights.”

That the conduct in issue constituted “excessive force” is “clearly established,” the opinion says.

The case is Penny v. Concetti, 22-55572.


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