In Landmark Case, 9th Circuit Rules Against Use of Deadly Force on Non-Threatening Armed Person
Using deadly force on a person constitutes a Fourth Amendment seizure. Case law clearly establishes the rule that when a person is carrying what appears to be a gun in his waistband, but posing no immediate threat, police officers may not shoot and kill him, particularly after shouting conflicting commands. Merely walking away from officers, even while ignoring their commands to submit, does not constitute “fleeing,” and does not justify the use of deadly force to stop him.
A concerned citizen called 911 in the afternoon of October 31, 2019, to report a man who appeared to be carrying a firearm walking in San Jose. It was also of concern that a high school was three blocks away and the students were about to be released from class for the day. Several San Jose police officers responded to the area and observed Francis Calonge walking away from the high school, toward the officers. Calonge had what appeared to be a handgun (but was later determined to be a “Powerline 340” BB gun) in his front waistband and was resting his right hand on it. One of the officers exited his vehicle with a rifle and turned on his bodycam to record the interaction.
The officer began shouting commands at Calonge to “let me see your hands,” and “drop it.” Other officers also shouted seemingly conflicting commands for Calonge to “drop the gun,” “do not reach for it,” and “get on the ground.” Ignoring them all, Calonge paused, crossed the street, and began walking away from the officers in the general direction of the high school. Calonge looked over his shoulder a few times and smiled at the officers. After Calonge ignored another command to “drop it,” the officer with the rifle yelled to the other officers: “Hey, watch out, I’m gonna shoot him. Watch out, watch out. Get out of the way.” Steadying his rifle against a tree, the officer shot Calonge once in the back. The bullet struck his heart, killing him.
At no point had the officer warned Calonge that he was going to shoot. Just over one minute had elapsed between when the officer exited his police car with the rifle and when he shot Calonge. Calonge’s mother, Rosalina Calonge, sued the San Jose Police Department and the officer who fired the fatal shot in federal court, pursuant to 42 U.S.C. § 1983, alleging a violation of Calonge’s Fourth Amendment rights. The civil defendant’s motion for summary judgment was granted, with the district (trial) court holding that the defendants were entitled to qualified immunity, and the case was dismissed. The plaintiff appealed.
