On 8/31/23 that the Ninth Circuit voted in May 2023 to withdraw its December 2022 opinion that denied qualified immunity to LAPD Officer Edward Agdeppa. Read Mike’s analysis of that decision here.
On October 29, 2018, Los Angeles Police Department (LAPD) Officers Edward Agdeppa and Perla Rodriguez were dispatched to a fitness gym in Hollywood, California on a complaint of a trespasser causing a disturbance. Both officers activated their body-worn cameras and an employee directed them to the men’s locker room where they encountered Albert Dorsey.
Dorsey was naked, 6’ 1” and weighed 280 lbs. Agdeppa was 5’1”, 145 lbs and Rodriguez was 5’5”, 145 lbs. Dorsey was repeatedly ordered to turn off music from his phone, get dressed and leave. He refused and raised his middle finger at the officers. Agdeppa attempted to handcuff Dorsey with the help of Rodriguez but Dorsey resisted. Agdeppa was able to get one cuff on Dorsey during the ensuing struggle but failed to cuff the other wrist. They applied arm, finger and wrist locks without success.
Dorsey became more combative and both officers’ bodycams were knocked to the floor. The cameras were now ineffective in filming the encounter but continued to record the audio portion of the violent struggle. Dorsey was repeatedly told to stop resisting but instead broke free. Both Agdeppa and Rodriguez deployed their TASERs upon Dorsey to no avail.
Dorsey hit Agdeppa in the face several times and “knocked him backward into a wall, disorienting him and causing him to drop his TASER.” Upon recovering from the attack, Agdeppa saw Dorsey “’straddling’ Rodriguez and ‘pummeling’ her head and face with a ‘flurry of punches’ as she lay on the floor in a fetal position.” Agdeppa believed that Dorsey was attempting to kill Rodriguez. He drew his service firearm and ordered Dorsey to stop [1] but Dorsey continued to hit Rodriguez. Agdeppa fired five shots at Dorsey from between six to eight feet away. Dorsey died from his wounds.
Agdeppa was sued for unreasonable use of deadly force. The district court denied Agdeppa’s motion for summary judgment on qualified immunity grounds, and Agdeppa appealed. In a split (2-1) decision, the Ninth Circuit Court of Appeals affirmed, rejected Agdeppa’s qualified immunity defense and permitted the case to proceed toward trial. [2]
The Ninth Circuit Majority Opinion
The majority opinion focused, with approval, on a section of a report of the shooting issued by the Los Angeles Board of Police Commissioners (LABPC). The report found that “the officers’ [pre-shooting] tactics warranted a finding of Administrative Disapproval, and that Agdeppa’s use of deadly force was unreasonable.”
The report concluded, “Once the officers had initiated physical contact with [Dorsey], it was readily apparent that [Dorsey’s] greater size and strength, in concert with his noncompliant behavior, would make it difficult, if not impossible, for the officers to accomplish their goal of handcuffing him. At that time during the incident, there was no exigency that required the officers to stay physically engaged with [Dorsey]. Nevertheless, the officers did not take the opportunity to disengage from their physical struggle and redeploy in order to allow for the assembly of sufficient resources.”
The majority moved on and concluded that there was a factual discrepancy between Adgeppa’s claim that Dorsey was straddling Rodriguez while beating her, when he shot him from a distance of six to eight feet away and a security guard’s claim that Dorsey was holding Agdeppa’s arm when the shots were fired. The majority seized on this alleged discrepancy despite its further observation that the LABPC report reflects that “the gym’s surveillance video shows that one of the guards was not present in the locker room at the time of the shooting and the other was ‘in the process of exiting the locker room.’” In a footnote, the majority comments, “Whether the guards’ testimony is ultimately deemed credible will be a question for the fact finder.”
Regarding this factual dispute and others [3] not discussed here, the majority concluded, “pervasive disputes of material fact make this case a textbook example of an instance in which summary judgment was improper.” [4]
The failure to properly warn Dorsey before shooting him
The majority stated that, “our case law [required] Agdeppa to give a deadly force warning if doing so was practicable.” The majority observed that Agdeppa never claimed that he had no time to give a warning and stated that at “no point did Agdeppa [actually] warn Dorsey that he was escalating to the use of his firearm.” The majority recognized Agdeppa’s claim that he told Dorsey to “stop” [5] before shooting him but dismissed it because it was not audible on the officers’ cameras. Moreover, the majority indicated that even if Agdeppa could prove that he told Dorsey to “stop’ prior to shooting him, that this command alone would be insufficient to warn Dorsey of impending deadly force.
The majority explained, “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.” The majority suggests that an officer’s warning of impending deadly force must specifically inform the offender that deadly force will be used unless life-threatening action is immediately ceased.
The dissent
The dissenting judge began by noting that it is “undisputed that a violent struggle ensued in the locker room” and the officers “were unable to get control of Dorsey, who became increasingly aggressive.” The dissent observed that Dorsey was able to break free from the officers, causing both officers to unsuccessfully deploy their TASERs.
The dissent observed further that, “[t]he audio recordings confirm that the struggle escalated after the taser deployments. … [and] the officers are then heard groaning and crying out in pain as the sounds of banging and thrashing increase in volume and intensity. Just before Agdeppa fired the fatal shots, we hear the most intense shouts of pain from the officers amidst loud crashing noises.”
The dissent further noted that Agdeppa saw Dorsey straddling Rodriguez while “pummeling” her with multiple punches while she lay down in a fetal position. Agdeppa believed that Dorsey would kill her if not stopped and “It was at this point that [he] fired the fatal shots.”
The dissent criticized the majority’s reliance on the LABPC report by stating that it “faulted the officers for not using greater de-escalation techniques earlier in the encounter, [but] ‘concluded that [the] available evidence supports that [Agdeppa’s] belief that there was an imminent threat of death or serious bodily injury at the time of the [shooting] was objectively reasonable.”
The dissent was also highly critical of the majority regarding the alleged factual discrepancy regarding how far away Dorsey was from Agdeppa when he was shot. The dissent observed, “the majority opinion is purporting to identify a supposedly critical factual dispute based on what Witness F observed at the exact moment of the shooting, but a careful reading of the BOPC report shows that based on video surveillance, Witness F was no longer even in the locker room at that exact moment, having exited just immediately before.”
The dissent was particularly critical of the majority’s belief that it was practicable for Agdeppa to warn Dorsey that deadly force was about to be used. Likewise, the dissent criticized the majority suggestion that such a warning must be so specific and precise that the violent offender has no doubt that deadly force will be used if life-threatening conduct is not immediately stopped.
The dissent concluded by stating, “the dangers of today’s decision are especially ominous. At what microsecond interval in the final heated moments of this escalating confrontation was Agdeppa somehow legally required to hit the “pause button” and recite some yet-undisclosed, court created warning script? … and the rule of law it treats as clearly established on these facts could well make the difference in whether officers like Agdeppa and Rodriguez make it out of a violent altercation alive.”
Lessons learned
- Notwithstanding the extreme danger faced by officers when confronting violent offenders, there are some federal judges that are philosophically opposed to granting qualified immunity before a jury trial, particularly when the offender is killed in the confrontation.
- The majority was quite willing to disregard the Supreme Court’s direction to avoid 20/20 hindsight and instead concentrate on the moment surrounding the actual shooting. [6] By focusing on alleged pre-shooting errors, they indicate that the officers should have disengaged, retreated from the locker room and waited for sufficient backup. In this case, doing so was not at all practical and amounted to judicial second-guessing at its very best.
- The Supreme Court has ruled that in deadly force situations, a warning must precede the use of lethal force, if feasible. [7]
- To avoid the kind of judicial second-guessing found in the majority opinion, officers who have time to warn a violent offender of the impending use of deadly force should specify the kind of force about to be deployed, e.g., “Drop the knife or I will shoot you.”
References
1. Agdeppa’s claim that he told Dorsey to stop before shooting him was not audible on the still functioning audio part of the officers’ body-worn cameras that had fallen to the floor. Video was also still operating but not focused on anything relevant.
2. Smith v Agdeppa, (N0. 20-56254) (9th Cir. 12/30/22).
3. The other alleged factual discrepancies are significantly less persuasive in the opinion of the author. See link for full court opinion: LAPD Police Shooting case.pdf
4. In legal matters involving pretrial motions for summary judgment based upon defense assertions of qualified immunity, the appellate court will deny the motion when there are material fact disputes between the parties. When material factual disputes exist, it is for juries during trial to decide which side of material disputed facts is correct. There are other alleged factual discrepancies mentioned by the majority which are not discussed in this review.
5. Pummeling Officer Rodriguez.
6. See Graham v. Connor, 490 U.S. 386, 396 (1989). “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
7. See Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). The Supreme Court in Garner required “some warning”, “where feasible.” The Court did not elaborate on the specificity or actual wording of the warning.
