• Use of deadly force and qualified immunity 
• Use of deadly force and the Fourth Amendment 
• Use of deadly force to stop a non-threatening armed person 
• Use of deadly force on one who ignores conflicting commands to submit 

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. 

The Ninth Circuit Court of Appeals reversed.  

At the federal district court hearing on the civil defendants’ motion for summary judgment, the officer who fired the fatal shot testified that he shot Calonge for two reasons. First, he claimed to have seen Calonge’s arm “bow out” such that there was space between his arm and his body, suggesting that he was drawing the gun. Second, the officer claimed that Calonge was walking toward some students who were about 10 or 15 yards ahead of him and that he feared Calonge would take them hostage. Other officers testified, however, that Calonge moved his arm away from his body and did not make any movements suggesting that he was about to draw his weapon. There was also evidence, including from the bodycam, that there weren’t any bystanders nearby.  

The issue on appeal was whether the civil defendants were entitled to summary judgment on the basis of “qualified immunity.” The rule on appeal is that the appellate court is required to “view the evidence in the light most favorable to the nonmoving party, the plaintiff in this case...draw(ing) all reasonable inferences in that party’s favor.”  

The court resolved three disputed facts in the plaintiff’s favor. First, the court assumed that Calonge was not drawing his gun or otherwise making a threatening gesture when the officer shot him. Second, the court assumed that there were no bystanders in Calonge's vicinity when he was shot. And third, the court assumed that the officers did not instruct Calonge to get on the ground, or otherwise stop walking away. 

Noting that a police officer’s use of deadly force against a person constitutes a seizure within the meaning of the?Fourth Amendment (Tennessee v. Garner (1985) 471 U.S. 1, 7.), and that a seizure violates the?Fourth Amendment when that seizure is objectively unreasonable, the court ruled here that shooting Calonge under these circumstances did in fact violate his Fourth Amendment rights.  

The court reached this conclusion upon considering the “totality of the circumstances,” evaluating “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.)  

The Ninth Circuit first noted case law has held that police officers “may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed.” (Harris v. Roderick (9th Cir. 1997) 126 F.3rd 1189, 1204.) Although an immediate threat might be indicated by “a furtive movement, harrowing gesture, or serious verbal threat,” here none of these occurred. As such, the court held that merely possessing a weapon, but not reaching for his waistband or making some similar threatening gesture, does not give a police officer the right to shoot him. (Cruz v. City of Anaheim1078.)  

Again, assuming that the facts are as the plaintiff alleged, the court assumed as true that Calonge did not reach for his waistband or make a similar furtive or threatening movement. It is a rule of law that the mere possession of a gun does not justify the use of deadly force, at least absent some indication that the subject intends to use it.  

Further, the court held that the use of deadly force cannot be justified on the grounds that Calonge failed to comply with the conflicting commands about what to do with the gun. Specifically, Calonge was told both to drop the gun, and then to not to reach for it. The case law is clear that when officers initially give conflicting commands, a person becomes non-compliant only after an “unequivocal” command is given and the person refuses to comply. (Gravelet-Blondin v. Shelton (9th Cir. 2013) 728 F.3rd 1086, 1094, fn.7.)  

The court also held that deadly force is not justified by the fact that Calonge continued to walk away from the officers. Again, taking the facts in the light most favorable to the plaintiff, the officers never instructed Calonge to stop or attempted to arrest him. As such, his actions certainly could not amount to fleeing arrest. But even if the officers had commanded him to stop, it is a rule that “simply continuing to walk (away) does not amount to fleeing arrest even in the face of an officer’s commands to stop.” (A.K.H. ex rel. Landeros v. City of Tustin (9th Cir. 2016, 837 F.3rd 1005, 1009.)  

It was noted that the officers were not responding to the commission of a serious crime. At most, Calonge was guilty only of carrying a loaded firearm in public, a misdemeanor pursuant to Penal Code § 25850(c)(7). And, as it turned out, Calonge’s “firearm” being no more than a BB gun, he wasn’t even guilty of that.  

Lastly, the court noted that no officer warned Calonge that deadly force would be used. “[W]e have recognized that an officer must give a warning before using deadly force ‘whenever practicable.’”?(Gonzalez v. City of Anaheim (9th Cir. 2014) 747 F.3rd 789, 794.) Based on that, the court concluded that a reasonable jury could find that the officer’s actions — shooting and killing him — violated Calonge’s Fourth Amendment rights.   

The district (trial) court had held that the defendant officer and the city of San Jose were entitled to qualified immunity, opining that the above rules were not well-settled in the law. But the court here disagreed, reversing the trial court on this issue.  

The doctrine of qualified immunity protects officers from civil liability when the law is not clearly established. In other words, to hold a police officer civilly liable for his actions, the “precedent (must be) clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”  (District of Columbia v. Wesby (2018) 583 U.S. 48, 63.)  Overruling the district court on this issue, the court here found that the law is in fact clearly established. Per the court: “The precedents on which we have relied put the?Fourth Amendment question ‘beyond debate.’” (Citing Ashcroft v. al-Kidd,] (2011) 563 U.S. 731, 741.) “When a man is walking down the street carrying a gun in his waistband, posing no immediate threat, police officers may not shout conflicting commands at him and then kill him” when he fails to comply. This rule of law being clearly established, the civil defendants were not entitled to qualified immunity. (District of Columbia v. Wesby (2018) 583 U.S. 48, 63.)  

The court doesn’t mention California Penal Code § 835a, probably because this statute did not become effective until January 1, 2020, two months after this shooting. For all future cases, however, section 835a arguably imposes at least a statutory, even if not constitutional, higher threshold for the use of deadly force. Per subdivision (a)(2) of P.C. § 835a: “(I)t is the intent of the legislature that peace officers use deadly force only when necessary, in defense of human life. (Italics added.) In determining whether deadly force is necessary, officers shall evaluate each situation in light of the circumstances of each case and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.”  

This, on its face, seems to raise the bar for using deadly force from one of “reasonableness” (see Graham v. Connor, supra.) to “when necessary, in defense of human life.” Had this statute been in effect at the time of this shooting, the officer in this case would have been in clear violation of its provisions. Nothing occurred here that could have reasonably indicated to the officer that Calonge was about to shoot anyone.  

Further, I would venture to guess that every law enforcement officer who is reading this has, at some point in his or her career (at least with sufficient time on the job), come face to face with an uncooperative subject who is armed, but not brandishing or otherwise threatening anyone with the use of that firearm. Did you just shoot him out of fear that, conceivably, he might decide to use that firearm? I would think not, or we would be reviewing your case here.  

Admittedly, coming face-to-face when an uncooperative subject who is packing a pistol can easily, and quickly, degenerate into a life-threatening situation. But you cannot just assume that that is going to happen merely because the individual is a jerk, and armed. Certainly, you need to take precautions to ensure your safety and the safety of others around you. But shooting him in that back as he quietly walks away is not one of your options.