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• H&S Code § 11362.3(a)(4) and open containers of marijuana 
• Warrantless vehicle searches for marijuana 
• Proposition 64 and marijuana possession by adults 
• H&S Code § 11362.1, lawful possession of marijuana  
• H&S Code § 11357, possession of marijuana by persons under the age of 21 

An officer’s plain-sight observation of marijuana in a vehicle that is not properly enclosed in a sealed container, as required by H&S § 11362.3(a)(4), provides the necessary probable cause to justify a warrantless search of the rest of the vehicle for more marijuana. Other illegal items (e.g., illegal firearms) observed in the process are admissible in court.

On Nov. 10, 2022, at around 11 p.m., 17-year-old defendant Randy C. was driving a borrowed BMW in the city of San Pablo. With him was an unnamed 22-year-old companion. San Pablo Police Officer Dugonjic — an 11-year veteran of the department with training and experience in marijuana identification and consumption, as well as the legality of tinted windows— observed the defendant driving and determined that its windows were in violation of Vehicle Code § 26708(a), illegally tinted windows. Officer Dugonjic conducted a traffic stop. Upon contacting the defendant, it was determined that he did not have a driver’s license and he acknowledged being 17. While discussing this with the defendant, Officer Dugonjic noticed the smell of unburnt marijuana coming from within the vehicle. He also observed that the defendant’s passenger had an unburnt and unsmoked “marijuana blunt” on his lap, in plain view, with “a little bit of green at [its] tip.” Officer Dugonjic determined that the marijuana was a usable amount and not in a closed container, a violation of H&S Code § 11362.3(a)(4).  

The officer knew from his training and experience that marijuana is often smoked in paper wrappers taken from tobacco products. In constructing a marijuana blunt, the tobacco is removed from its wrapper and replaced with marijuana. According to Officer Dugonjic, if there is enough marijuana to be manipulated in such a manner, it is a useable amount. The officer had the defendant get out of the BMW and he conducted a pat-down search. He also ran the defendant’s name with San Pablo P.D.’s communications, but did not find a match. He then searched the car’s front passenger compartment to try to find any identification for the defendant?or his passenger.  

Officer Dugonjic later testified that he was also looking for additional marijuana in the car.?Instead of identification documentation or marijuana, he found a handgun in the glove compartment and an airsoft rifle, which was visible behind the driver’s seat. The defendant attempted to flee on foot but was taken into custody. A continued search of the car resulted in the recovery from the car’s trunk an AR-15 firearm with no serial number.  

Five days later, a wardship petition was filed pursuant to Welfare & Institutions Code § 602(a), alleging several firearms and ammunition offenses, as well as resisting arrest. The defendant’s subsequent motion to suppress the firearms and ammunition — arguing insufficient probable cause to search the vehicle — was denied. He therefore admitted to various felony offenses in a plea bargain, declared a ward of the court and was committed to juvenile hall for 274 days with credit for 55 days' time served. The defendant appealed. 

The First District Court of Appeals, Division 5, affirmed.  

The defendant did not contest the legality of the traffic stop, acknowledging that his windows were illegally tinted. The issues he raised on appeal were (1) the juvenile court’s finding that the marijuana blunt observed on his passenger’s lap was an “open container” within the meaning of H&S § 11362.3(a)(4), and (2) whether the resulting warrantless search of the car was legal.  

In discussing these issues, the court noted that H&S Code § 11362.1, added by Proposition 64 effective as of Nov. 8, 2016), ‘“fundamentally changed the probable cause determination by specifying (that)?lawfully possessed cannabis?is ‘not contraband’ and (is thus)?lawful conduct under the statute.” (Italics in original.) As such, possession of a lawful amount of marijuana, at least by an adult, “may not ‘constitute the basis for detention, search or arrest.’” (Italics in original.)  

The court further noted, however, that “this applies only to activities ‘deemed lawful’ by Proposition 64.” H&S Code § 11362.3(a)(4) “clearly states that no one is permitted to ‘[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.” (Italics added.)  

In?addition,?section 11357?makes it unlawful for a person under the age of 21 to possess any amount of marijuana, recreational or otherwise. Although the defendant was only 17, his passenger, who actually possessed the marijuana, was 22. But even though only a passenger in the car, the companion also was forbidden under H&S Code § 11362.3(a)(4) from possessing an “open container” of marijuana.  

The issue, therefore, was whether the marijuana blunt constituted a usable amount of marijuana in an open container in violation of?section 11362.3(a)(4). Accepting as uncontested the officer’s opinion that the marijuana in the blunt constituted a “usable amount,” the court ruled that the blunt itself was an open container. Section 11362.3 does not define the phrase “open container or open package.” In the absence of a specifically defined meaning, the court ruled that we must look to the plain meaning of a word or phrase as understood by the ordinary person, which would typically be a dictionary definition. Per the court: “The plain and commonsense meaning of an ‘open container’ is one in which there is no barrier to accessing the marijuana contained inside.?(Citing People v. Johnson?(2020) 50 Cal.App.5th 620,?632–633.)  

In this case, the paper wrapping enclosing the marijuana presented no barrier to accessing the marijuana itself. To the contrary, as Officer Dugonjic explained, the paper wrapping holds the marijuana so that it can be smoked, thereby facilitating its consumption. Therefore, under existing case law (Citing People v. McGee?(2020) 53 Cal.App.5th 796, 804; and People v. Castro?(2022) 86 Cal.App.5th 314, 320-321), the court held that Officer Dugonjic’s observation of the marijuana blunt supplied the necessary probable cause to believe that the BMW possibly contained more marijuana, allowing for a warrantless search: “This?open container of marijuana was contraband that, along with the smell of unburnt marijuana emanating from the vehicle, provided probable cause to believe minor or his passenger may also have possessed additional marijuana in violation of?section 11357 and/or section 11362.3, subdivision (a)(4).”  

As such, under the so-called “automobile exception” to the search warrant requirement, the warrantless search of the car and the recovery of the firearms was lawful.

Keep in mind, however, that the lawful possession of marijuana (more often nowadays referred to as cannabis) does not, by itself, allow for a search of a subject’s car for more. (See People v. Hall (2020) 57 Cal.App.5th 946; People v. Johnson (2020) 50 Cal.App.5th 620.)  

The observed marijuana either has to be possessed illegally (as in this case), or there has to be some other articulable suspicion to believe that there’s more marijuana in the car. (See People v. Fews (2018) 27 Cal.App.5th 553; People v. Moore (2021) 64 Cal.App.5th 291. See also People v. Lee (2019) 40 Cal.App.5th 853, 861-867, where the court specifically held that, “there must be...additional evidence beyond the mere possession of a legal amount” for there to be probable cause to believe there is more marijuana in a suspect’s vehicle.)  

In this case, it was the illegal possession of the open container of marijuana (the blunt) that supplied that necessary evidence justifying a search of the BMW for more.  

• Use of a jailhouse informant to question an in-custody suspect 
• Legal effect of a prior invocation of one’s right to the assistance of counsel 
• Miranda and an invocation to one’s right to the assistance of counsel 
• Habeas corpus proceedings 

It is lawful to use a jailhouse police informant to question an in-custody suspect despite the suspect’s earlier invocation of his right to the assistance of counsel, at least in a habeas corpus review, as there is no contrary ruling by the U.S. Supreme Court.

Marrisha Robinson and her infant daughter were sitting in their Mitsubishi in a Los Angeles strip mall parking lot on February 12, 2014, waiting while her fiancé, Adrian Dawson, was shopping in one of the stores. The defendant, Christopher Grimes, double-parked his Mercedes behind the Mitsubishi, apparently leaving it out of gear and without setting the emergency brake. The Mercedes rolled into the Mitsubishi’s rear bumper and did some minor damage. Grimes told Robinson not to worry; that he would “take care of it.” As he was talking to Robinson, Dawson came running out of the store, “sucker punch(ing)” Grimes in the face two or three times while yelling “My baby’s in the car!” Telling Dawson that he did not want to fight, Grimes left the scene in his Mercedes. Less than two minutes later, as Robinson and Dawson were driving away, they noticed Grimes’ Mercedes behind them. Thinking that Grimes was seeking to recontact them so they could exchange insurance information, Dawson slowed down. The Mercedes, however, suddenly pulled alongside them and the driver fired four gunshots into the Mitsubishi. Dawson, in the Mitsubishi’s front passenger seat, was struck by one or more of the shots and died shortly thereafter. Grimes, as the obvious suspect, was arrested two days later. Robinson identified Grimes in a photographic lineup as the man with whom they had had the parking lot confrontation, but she could not attest to whether he was the one who later shot Dawson.  

Evidence collected during the execution of a search warrant on Grimes’ Mercedes and home included 9mm ammunition and bullet casings. Dawson died from shots fired from a 9mm firearm. Text messages on Grimes’ cellphone also indicated he was the shooter. The detectives, however, felt they needed more evidence to prove their case beyond a reasonable doubt.  

Immediately upon his arrest, before any interrogation had begun, Grimes asked to have his lawyer present. Later, after detectives read defendant his Miranda rights, he unequivocally invoked his right to counsel a second time. Rather than immediately terminating the questioning, however, the detectives continued to talk to him, telling him that although he did not have to say anything, they wanted him to know that they were conducting a “very serious investigation” in which he had been implicated. He was further told that the investigation was about a murder and that he was going to be arrested for the crime.  

When he asked, “Why would I be arrested for murder?” one of the detectives asked him if he wanted to wait for an attorney, or to talk with them at that time. Choosing to talk, Grimes admitted that he had been in an altercation in the strip mall parking lot, but denied being the shooter. Grimes was subsequently booked into jail. Still not satisfied that they had enough evidence to prove that he was the shooter, the detectives put an undercover informant posing as a fellow inmate into Grimes’ jail cell. The informant pumped Grimes for information about the shooting. Although Grimes continued to deny that he had shot Dawson, he did make incriminating statements about facts that only the shooter would have known: which window through which the shots were fired, and that the shooting took place two minutes after the strip mall incident. 

Grimes was charged with murder in state court and the trial court allowed into evidence all of the statements made to the detectives and to the jailhouse informant, despite his prior invocation of his right to an attorney. Grimes was convicted of second-degree murder and sentenced to 40 years to life.  

The California Second District Court of Appeals (Div. 7) affirmed the conviction in an unpublished decision (see People v. Grimes (2020) Cal. App. Unpub. LEXIS 1135.). In its affirmation, the appellate court ruled that while his statements to the detectives should have been suppressed because they came after he invoked his right to the assistance of counsel, admitting them into evidence was harmless error given other evidence of guilt.  

The appellate court also ruled, however, that the statements Grimes made to the jailhouse informant were properly admitted into evidence. The appellate court ruled that Grimes’ jailhouse statements were admissible because law enforcement is not required to give?Miranda?warnings to a suspect before placing them in a jail cell with an undercover informant, citing as its authority the U.S. Supreme Court decision in Illinois v. Perkins (1990) 496 U.S. 292.   

Grimes then filed a federal 28 U.S.C. § 2254 habeas corpus petition, again arguing that subjecting him to the questioning by a jailhouse informant after he had invoked his right to counsel violated the U.S. Supreme Court’s prohibition on post-invocation questioning, as ruled in Edwards v. Arizona?(1981) 451 U.S. 477. The federal district court denied his petition. The defendant appealed.  

The Ninth Circuit Court of Appeals affirmed. In Edwards v. Arizona, supra, the U.S. Supreme Court specifically held that once an in-custody defendant invokes his right to counsel, as opposed to his right to silence, under the Supreme Court’s Miranda decision (Miranda v. Arizona (1966) 384 U.S. 436), law enforcement officers must immediately cease questioning.  

In such a circumstance, the suspect may not be subjected to any “further questioning by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona, supra, at pp. 484-485.)  

The detectives in this case purposely violated this rule by continuing to talk to the defendant about the case after he invoked his right to the assistance of counsel. The detectives, in effect, encouraged him to change his mind, a clear violation of the so-called “Edwards rule.” It could be argued that by placing an undercover jailhouse informant in the cell with him to purposely continue the conversation about the case also violated this rule.  

Even though the U.S. Supreme Court has not considered the issue, lower courts have consistently found an exception to the Edwards rule in the situation as occurred in this case: statements made to an undercover jailhouse police agent. The California appellate court’s decision in this case followed this same line of thinking.  

However, it must also be noted that the issue in a subsequent habeas corpus proceeding, such as in this case, is whether the state court has reached a conclusion that is “contrary to clearly established federal law,” having “arrive(d) at a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or, in the alternative, “if the state court decide(d) a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” (Ochoa v. Davis (9th Cir. 2022) 50 F.4th 865, 876; citing?Williams v. Taylor (2000) 529 U.S. 362, 413.)  

It must be noted that on appeal in a habeas corpus proceeding, the issue is not whether the state court’s determination was right or wrong, but rather whether it was “objectively unreasonable,” a “substantially higher threshold.” (Renico v. Lett (2010) 559 U.S. 766, 773.) The closest the Supreme Court has come on this issue is its decision in the case of Illinois v. Perkins (1990) 496 U.S. 292. In Perkins, an undercover agent was placed in a cell with a defendant, who was already incarcerated on charges unrelated to the subject of the agent’s investigation. The defendant made statements implicating himself in the crime the agent was investigating. When the prosecution sought to use those statements against him at trial, the defendant argued that his statements should be inadmissible because he had not been given?Miranda?warnings by the agent. The Supreme Court disagreed, holding that an undercover law enforcement officer posing as a fellow inmate need not give?Miranda?warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.  

Per the Supreme Court:?“Miranda?forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.”?(Id.?at 297.)?When a suspect “boast[s] about their criminal activities in front of persons whom they believe to be their cellmates,” those statements are considered voluntary.?(Id.?at 298.)?Thus, there “is no federal obstacle to their admissibility at trial.”?(Id.?at 300.)  

The defendant in this new case argued that because he was in effect questioned by a police agent on a case for which he had already invoked his right to the assistance of counsel, Perkins didn’t apply. However, being a habeas corpus proceeding, the rule is not whether the defendant here is right or wrong, but whether the state court’s decision in admitting the defendant’s statements against him at trial is “contrary to clearly established federal law.”  

The “clearly established federal law” requirement is provided for in 28 U.S.C. § 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA. Under this federal statute, a defendant can prevail on his habeas petition only if he demonstrates that the state court’s decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”  

As noted by the court: “Neither Edwards nor Perkins provides a ‘clear answer’ to the issue presented by (the defendant in this case) — whether the?Fifth Amendment requires the suppression of a defendant’s statements?made to an undercover informant after the defendant invoked his?Miranda?right to counsel during a custodial interrogation.” Nor is there any other guidance from the U.S. Supreme Court on this issue. Therefore, there being no contrary U.S. Supreme Court decision telling the court how to rule, the Ninth Circuit had no choice but to find that the state court’s ruling is not contrary to clearly established federal law.   

This decision doesn’t mean that someday the U.S. Supreme Court (or California’s Supreme Court) won’t change the rule as described here and extend the Perkins decision to a situation similar to what occurred in this case. In the meantime, investigators are free to employ the same tactic of putting an undercover police agent into a defendant’s cell even after he has invoked his Miranda rights.  

Note also that this investigative tactic has similarly been upheld on direct appeal. (People v. Felix (2024) 100 Cal.App.5th 439, at pp. 450-453, a 2-to-1, decision. See California Legal Update, Vol 29, #6; published June 1, 2024, as modified at 2024 Cal. App. Lexis 173.  

In my brief on Felix, I noted that I tended to agree with the dissenting opinion where Presiding Justice Maria E. Stratton argued that it is not legally “permissible for a?Perkins?(undercover) agent to interrogate appellant after he invoked his right to counsel, despite the lack of coerciveness.” Justice Stratton noted that: “Edwards applies even if the subsequent interrogation after invocation of the right to counsel is not coercive. Under Edwards, no police-initiated interrogation whatsoever is to occur unless the accused has given a valid waiver of the right to counsel they previously invoked. (Edwards, supra, 451 U.S. at p. 484.)” But being a dissenting opinion only, Justice Stratton’s theory is irrelevant. The Felix decision was appealed and review was denied at?People v. Felix (May 15, 2024) 2024 Cal. LEXIS 2610.  

So the law in California — as it stands pending a new case from the California or U.S. Supreme Court to the contrary — is that when a suspect invokes his rights under Miranda, be it the right to silence or to the assistance of an attorney, investigators are free to put an undercover police agent into his cell and pump him for incriminating statements. If the rule does get changed someday, we’re no worse off than if nothing had been done. To the contrary, the “good faith” rule will likely come to the rescue and allow for the use of any incriminating statements a suspect might make to a jailhouse informant.  

Also note, however, that the rule is to the contrary if the suspect has already been arraigned. Questioning by an undercover agent any time after a defendant has been arraigned, where an attorney is appointed to represent him, violates the Sixth Amendment right to counsel. (See Massiah v. United States (1964) 377 U.S. 201; and Maine v. Moulton (1985) 474 U.S. 159.) Referred to as a “Massiah violation,” any questioning of one who has been arraigned is strictly forbidden absent an express waiver of the suspect’s right to the assistance of the defendant’s attorney. 

• 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.