Opinion "From the DA’s Desk"
By Robert Phillips  
Retired Deputy District Attorney 

Use of Deadly Force and Qualified Immunity, an Update  

Earlier this year, I briefed the Ninth Circuit Court of Appeal case of Smith v. Agdeppa (Ninth Cir. 3/16/2023) 56 F.4th 1193 (California Legal Update: Vol. 28, #5; 5/2023), where a split 2-1 panel held that a Los Angeles Police Department officer was not entitled to qualified immunity for fatally shooting a violently resisting person, despite the fact that that the subject, at 280 pounds, was almost as large as the two officers who were attempting to arrest him put together (145 each).  

The case included the civil defendant, Officer Edward Agdeppa. After publication of the original decision, one of the judges who voted with the majority retired from the bench: District Court Judge Gary Feinernan of the Northern District of Illinois, sitting on the Ninth Circuit by designation.  

A new Ninth Circuit justice, Consuelo M. Callahan, was chosen by lot to replace him on the district court panel. This newly reconstituted panel reversed the prior decision, holding instead that the district (trial) court’s denial of summary judgment for Agdeppa was in error and he was due qualified immunity. (Smith v. Agdeppa (Ninth Cir. Aug. 30, 2023) __F.4th __ [2023 U.S.App. LEXIS 22954].)  

The court reached this decision by ruling that a constitutional violation was not clearly established. That’s because under the facts of the case, nonlethal force had proven ineffective in the officers’ attempt to take the subject, Albert Dorsey, into custody; the officers were not required to suffer more grievous injuries than they already had; and that Dorsey had been warned throughout the encounter that he would be shot and continued to fight. Agdeppa, therefore, was not required to issue any further warnings before employing deadly force, the new panel determined. 

This 180-degree turn in the Ninth Circuit’s decision may be tied to the political leanings of the outgoing justice (Feinernan, a Barack Obama appointee) versus the incoming justice (Callahan, George W. Bush appointee).  

This fact highlights the importance of the political leanings of the official who appoints judges, the president of the United States in the case of the federal bench. On whichever political side you find yourself, you may want to keep this process in mind when you vote.