With a reconstituted three-member federal appeals panel now tilting to the right, judges in the Ninth Circuit Court of Appeals have tossed a previous appellate ruling that a Los Angles police officer cannot use qualified immunity as a shield against a deadly force suit, and have agreed to hear the case again.
The May 4 decision to yank the ruling was made by Judges Consuelo Callahan and Daniel Bress, of the U.S. Court of Appeals for the Ninth Circuit. Judge Morgan Christen disagreed with the decision. The decision favored Los Angeles Officer Edward Agdeppa in a federal civil rights action filed against him in 2019 by Paulette Smith, mother of the late Albert Dorsey.
On Oct. 29, 2018, Agdeppa and Officer Perla Rodriguez responded to a report of a trespasser at a Hollywood gym. The trespasser had assaulted staff and patrons, according to court papers. They found six-foot-one-inch, 280-pound Dorsey naked in a locker room.
According to police, Dorsey refused to obey their commands, leading the five-foot-five-inch, 145-pound Rodriguez to try to handcuff him. Dorsey refused and a struggle ensued for several minutes, during which Dorsey was Tasered, but to little effect. The five-foot-one-inch, 145-pound Agdeppa said he eventually had to shoot and kill Dorsey because Dorsey was about to pummel Rodriguez to death.
The officers' body cameras captured audio of the encounter, but video stopped after the cameras were dislodged in the struggle, court documents said.
The suit alleged Agdeppa's use of deadly force was unreasonable. U.S. District Judge Christina Snyder refused to grant Agdeppa qualified immunity against the suit.
Qualified immunity is a legal concept which can be used to protect police officers and other government officials from lawsuits over harm they may cause while carrying out their official duties within the law. In recent years, anti-policing activists and their allies in policy-making positions and within the criminal justice system have campaigned to strip officers of qualified immunity over officer-involved shootings and other alleged instances of excessive force when making arrests or responding to calls for assistance, or at least to make it more difficult for officers to employ it as a defense against lawsuits.
A panel of the Ninth Circuit Court of Appeals, made up of Judges Christen, Bress and Gary Feinerman issued a decision in December 2022. Feinerman, a federal district court judge from Chicago, has since retired. Feinerman had served on the panel by special designation.
With Bress dissenting, the panel had affirmed Judge Snyder's ruling, noting some of Agdeppa's statements were contradicted by recordings and-or witness statements, chiefly his claim he yelled "Stop!" before firing five times.
"Agdeppa provided several warnings before using intermediate force, but at no point did Agdeppa warn Dorsey that he was escalating to the use of his firearm. It is uncontested that Dorsey posed some danger to the officers’ safety by actively resisting arrest, but our case law required Agdeppa to give a deadly force warning if doing so was practicable. Agdeppa’s statement was that he had time to yell 'stop,'" Christen said.
Bress disagreed.
"Was it clearly established for purposes of overcoming qualified immunity that officers enduring a frenzied onslaught were legally required to call a 'time out' and issue another warning before they used deadly force? Remarkably, the majority says yes. That is clearly wrong," Bress said.
Bress added, "The split-second decision officers made here presents a classic case for qualified immunity."
Then last week and without explanation, the panel, with Callahan having replaced Feinerman, announced that by a 2-1 vote, it was withdrawing the December 2022 ruling and will rehear the case. Christen, who ruled against immunity for Agdeppa, voted against rehearing the matter.
Feinerman and Christen, the judges against immunity, were nominated to the bench by Democratic President Barack Obama.
Callahan and Bress, who favored immunity, were nominated by Republican Presidents George W. Bush and Donald Trump, respectively.
Paulette Smith has been represented by Edward Lyman III, Brian Dunn and James Bryant, of The Cochran Firm, of Los Angeles, as well as by Megan Gyongyos, of Carpenter, Zuckerman & Rowley, of Beverly Hills.
Officer Agdeppa has been defended by Kevin Gilbert and Carolyn Aguilar, of Orbach, Huff & Henderson, of Pleasanton, Calif.