• Use of Deadly Force; Duty to Warn
• Qualified Immunity in a Use-of-Deadly-Force Case

Qualified immunity from civil liability in a case where deadly force is used is not available in a case where discrepancies in the evidence are better left to a jury to decide.  A police officer contemplating the use of deadly force has a duty to warn a suspect when at all practicable to do so under the circumstances.

**UPDATE 05/10/2023:   On May 4, 2023, this opinion was withdrawn and a rehearing granted upon resignation from the bench by one of the affirming justices and his replacement with another.  A change in justices hearing the case apparently is going to reverse this decision and, as a result, grant Officer Agdeppa qualified immunity.  However, this occurrence does not change the basic rule that when at all feasible, an officer should warn a suspect when deadly force is about to be used.**

On October 29, 2018, Los Angeles Police Officers Edward Agdeppa (5’1” and 145 pounds) and Perla Rodriquez (5’5”, 145 pounds) responded to a call at a 24-Hour Fitness gym on Sunset Boulevard in Hollywood where it was reported that a person was trespassing and engaging in disruptive conduct.  Upon arrival, staff members complained that a “gentleman” was “a little bit irate,” wasn’t listening, and had already hurt a few gym members.  He had also apparently assaulted security personnel. Note: The bulk of this summary is taken from the dissenting opinion; the majority having glossed over much of it.

With their body-worn cameras turned on, the officers contacted a naked Albert Dorsey in the shower area of the men’s locker room, enjoying the music being played on his cellphone.  Dorsey was 6’1” tall and weighed 280 pounds (almost as much as both officers combined).  Over the next two minutes, Dorsey ignored the officers’ repeated demands that he turn off the music, get dressed, and leave the gym. 

He instead walked across the room, admired his naked body in a mirror, danced a bit to the music, and slowly dried himself as he defiantly flipped off Officer Agdeppa.  After more than four minutes, Officer Agdeppa decided that enough was enough and approached Dorsey to handcuff him from behind.  Dorsey, however, pulled away, and the fight was on. The two officers working together were able to get one handcuff on, but that was it. As Dorsey forcefully resisted, attempts to use arm, finger, and wrist locks were unavailing.

During this struggle, Officer Agdeppa was able to broadcast a request for additional units.  Dorsey became more combative, knocking both of the officers’ body-cams off their uniforms, thus ending any visual depictions of the fight.  The audio remained on, however, recording over the next “three-or-so minutes” the sounds of frequent bangs, crashes, shouts of pain, and other indicia of a violent confrontation.  The officers could be heard yelling at Dorsey to stop resisting. 

Officer Agdeppa eventually used his Taser in contact mode, cycling it twice into Dorsey’s chest.  Officer Rodriquez fired her Taser into Dorsey’s back, activating it for approximately five seconds. She then activated it a second time. Neither Taser had any effect other than to make Dorsey even more combative.  Dorsey began “punching at (the officers’) heads and faces while the handcuff attached to his wrist also swung around and struck” them.  Punching Officer Agdeppa in the head and face area, the officer was knocked into a wall and to the ground with such force that he suffered (as it was later determined) a concussion, disorienting him and causing him to drop his Taser.  After Officer Rodriguez fired her Taser (still attached to Dorsey’s back) for the third time, Dorsey turned on her, knocking her to the ground. Dorsey then straddled Rodriguez, striking her repeatedly in her face and head as he took her Taser away from her. 

Regaining some control of himself, Officer Agdeppa looked up to see Dorsey straddling Officer Rodriquez, “pummeling (her) . . . with a flurry of punches,” as she lay on the floor in the fetal position trying to protect her face and head.  Officer Agdeppa later noted in his civil deposition he believed that if allowed to continue, Dorsey’s next blow to Officer Rodriguez’s head could kill her.  So Officer Agdeppa drew his firearm and shot Dorsey five times.

In his deposition, Officer Agdeppa stated that he “unholstered and drew [his] service weapon” and “gave Dorsey a verbal warning, stating words to the effect that Dorsey needed to stop.”  No such warning could be heard on the still-functioning bodycams.  All that could be heard over the “chaotic noise” was a man’s voice shouting something unintelligible just before the shots were fired.  It was assumed by the Court, therefore, that no final warning was given. Dorsey succumbed to his wounds.

The Los Angeles Board of Police Commissioners did an internal investigation of the shooting, finding there to be some discrepancies between the officers’ accounts of the confrontation and both the physical evidence and the witness’ accounts (i.e., the two security guards who apparently just stood by and watched). The Commissioners also criticized the officers for failing to merely “disengage” when Dorsey first began to resist and wait until additional assistance arrived.  As noted above, Officer Agdeppa suffered a concussion.  He also had to have the bridge of his nose stitched up.  He was unable to return to work for six months and “had further (undescribed) longer-lasting effects.”  Officer Rodriguez suffered a swollen left check and right jaw, abrasions on her ear and hands, and a pulled muscle behind her knee.

Albert Dorsey’s mother, Paulette Smith, sued Officer Agdeppa in federal court alleging the unreasonable use of deadly force.  Officer Agdeppa filed a motion for summary judgment, claiming qualified immunity.  The district (trial) court denied the motion—noting the discrepancies in the different accounts as to what occurred—and ruled that a jury needed to decide liability, if any.  Officer Agdeppa appealed.

The Ninth Circuit Court of Appeal affirmed in a split, 2-to-1 decision; the majority agreeing with the district court that Officer Agdeppa was not entitled to qualified immunity.  The Court gave two reasons for its decision.  First, the Court agreed with the district court in its conclusion that a reasonable jury could reject the officers’ account of the shooting, due to the significant discrepancies between their versions of events and the other evidence in the record.  Second, it has long been held that the Fourth Amendment requires officers to warn a suspect before using deadly force, at least when practicable to do so.  Officer Agdeppa failed to issue such a warning before shooting Dorsey.

Assuming Officer Agdeppa had in fact actually told Dorsey to “stop,” which itself was contested, such an admonition was insufficient to constitute a warning.  Also, per the Court: “(A) jury could find that a reasonable officer in Agdeppa’s position would not have believed that Rodriguez or anyone else was in imminent danger and, thus, would have understood that his use of deadly force violated plaintiff's Fourth Amendment rights.”  In reaching these conclusions, the Court noted that it must, on appeal—while considering the issues “de novo”—“assess whether an officer’s use of force was objectively reasonable by weighing ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.’” (Graham v. Connor (1989) 490 U.S. 386, 396.) 

These three “Graham factors” are not to be “considered in a vacuum,” but must be weighed “in relation to the amount of force used to effect [the] particular seizure.”  (Smith v. City of Hemet (9th Cir. 2005) 394 F.3rd 689, 701; quoting Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1441.)  A reviewing court must also “take the perspective of the officer on the scene without the benefit of 20/20 hindsight.”  “Because deadly force involves a serious intrusion on Fourth Amendment rights, deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others.” (Italics in original; Gonzalez v. City of Anaheim (9th Cir. 2014) 747 F.3rd 789, 793; quoting Scott v. Henrich (9th Cir. 1994) 39 F.3rd 912, 914.)

Lastly, “summary judgment should be granted ‘sparingly’ in deadly force cases . . . tak(ing) 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.’”  With these rules in mind (but without even discussing the “Graham factors” described above), the Court found too many discrepancies between the officers’ accounts of what happened and the other available evidence to allow the granting of summary judgment.  Rather, the case should be allowed to go to a jury to resolve the conflicting evidence. While it was “uncontested that Dorsey posed some danger to the officers’ safety by actively resisting arrest” (italics added), the Court remained critical of Officer Agdeppa for having failed to warn Dorsey that he would be shot if he did not submit.  Telling him merely to “stop” (assuming that did in fact happen) was not enough.  “Because the officers had tased Dorsey at least five times, a command to ‘stop’ would have done nothing to warn Dorsey that Agdeppa was preparing to ramp up to use deadly force.” Per the Court: “(A) reasonable jury could decide that it was practicable for Agdeppa to give Dorsey a deadly force warning.”  For these reasons, the Court agreed with the district court that summary judgment—taking the issues out of the hands of a jury—was inappropriate in this case.

When I graduated from the San Diego Police Department Academy in 1971, I was approximately 5’10½” tall, and weighed somewhere around 170 pounds.  Upon giving me my final evaluation, the academy sergeant (Sgt. Mansfield) told me point blank I had to realize that should I be standing in a line with my fellow officers one day when someone calls out for “Officer Milk Toast,” everyone is going to be looking at me.  (True story.)  Indeed, I remember that in order to make the minimum weight requirement to get hired as a patrol officer in the first place, I had to stuff my face with bananas the day of my initial physical.  In those days, female officers—who generally tend to be smaller than their male counterparts—were automatically relegated to investigative or administrative positions.  Today, however, police departments as a rule merely require that your height be proportional to your weight; an administrative decision the wisdom of which can be debated another time.  As a result, women are now commonly in the field as patrol officers along with their male counterparts.  The natural result of all these administrative changes is that we now have officers of all sizes assigned to the uniform patrol division, and who at some point in their respective careers can expect to come up against the uncooperative Albert Dorseys of the world.  This is fact of life we just have to live with.

In this case, I have to question the majority’s legal conclusions.  First, the Court failed to take into consideration the Graham factors, as described above.  Also, as pointed out by the dissenting justice, one might argue that the majority places way too much importance on the necessity of a warning that deadly force is about to be used.  Had the majority justices considered the Graham factors and rethought the need for a warning, they might have reached a different conclusion. 

Perhaps the only part of this case decision with which I agree is the Police Commission’s conclusion that Officer Agdeppa should have given more thought to “disengaging” with Dorsey and calling for cover once it became apparent that Dorsey was not going to cooperate.  But it’s hard to criticize when you’re not there experiencing the turmoil created by Dorsey’s actions first hand.  As for the legal necessity to issue a final warning before shooting and killing a suspect, the dissenting opinion justly criticizes the idea that it is clearly established in the law that “in the heat of battle,” an officer “must follow a judge-devised warning script when officer safety is most jeopardized.”

The dissenting opinion makes a credible argument to the effect that under the circumstances that were apparent to Officer Agdeppa—with his partner on the floor, curled up in the fetal position, desperately trying to protect her head from the pounding a 280-pound man was raining down on her—there is no legal duty to delay even the few extra seconds (which could have spelled the difference between life and death for Officer Rodriguez) and issue a “stop or I’ll shoot” warning.  Speaking of the dissent, Justice Daniel A. Bress authored a detailed 15-page description of the events (with the majority opinion being a relatively short ten pages long), reaching the contrary conclusion.  In his dissent, Justice Bress makes a valid argument that the scenario as occurred here—with two officers in reasonable fear for their very lives—“presents a classic case for qualified immunity.” In so arguing, and as spelled out in much more detail than in the majority opinion, Justice Bress poo-poos the supposed discrepancies in the evidence—noting that they are either non-existent or easily refuted—as well as the idea “that police officers enduring a frenzied onslaught (are) legally required to call a ‘time out’ and issue another warning before they (use) deadly force.”  By “another warning,” Justice Bress makes reference to some fourteen times Dorsey earlier ignored commands to submit.  Speaking as the former “Officer Milk Toast” (having since “filled out” more than bit over the years), I found Justice Bress’ dissent to be the better reasoned argument.

**UPDATE:  On May 4,, 2023: This opinion was withdrawn and a rehearing granted upon resignation from the bench by one of the affirming justices and his replacement with another.  A change in justices hearing the case apparently is going to reverse this decision and, as a result, grant Officer Agdeppa qualified immunity.  However, this occurrence does not change the basic rule that when at all feasible, an officer should warn a suspect when deadly force is about to be used. **