Ninth Circuit reverses course and issues new ruling giving LAPD officer qualified immunity
The defendant officer was initially denied qualified immunity after fatally shooting a violent subject
On October 29, 2018, Los Angeles Police Department (LAPD) officer Edward Agdeppa shot and killed Albert Dorsey during a violent physical struggle between Agdeppa, LAPD Officer Perla Rodriguez and Dorsey. Dorsey’s mother, Paulette Smith, sued Agdeppa in federal court for allegedly using unreasonable deadly force in violation of the Fourth Amendment. On 12/30/22 the U.S. Court of Appeals for the Ninth Circuit, in a 2-1 decision, affirmed a denial of qualified immunity for Agdeppa by a lower federal court that permitted the case to move forward toward a jury trial. 
The rescission of the original opinion
The “Los Angeles Times” newspaper reported on 8/31/23 that the Ninth Circuit voted in May 2023 to withdraw its December 2022 opinion that denied qualified immunity to Agdeppa. The article further reported that on 8/30/23, the Ninth Circuit, in a 2-1 opinion,  reversed its earlier ruling and instead granted Agdeppa qualified immunity. 
According to the Times article, the attorney for Paulette Smith stated that no decision has been made on whether to seek a rehearing of the case before the 11-member “en banc” panel of Ninth Circuit judges.
LAPD officers Agdeppa and Rodriguez confronted Dorsey in a Hollywood fitness gym locker room. Dorsey was trespassing, causing a disturbance and allegedly assaulted a security guard. He was naked and substantially bigger than both officers. 
Dorsey rejected repeated orders to leave voluntarily and physically resisted an attempt to handcuff him. Only one cuff was successfully applied. Dorsey engaged both officers in a violent struggle and both officers’ body-worn cameras were knocked to the floor.  The officers repeatedly told Dorsey to stop resisting and deployed their TASERs at Dorsey but to no avail. Agdeppa was punched in the face several times, which disoriented him and knocked him back into a wall. 
Upon regaining his balance, Agdeppa saw Dorsey straddling Rodriguez and repeatedly punching her in the head and face as she lay in a fetal position on the floor. Agdeppa thought that Dorsey was trying to kill his partner. He claimed that he saw Dorsey in possession of Rodriguez’s TASER, and ordered him to stop  his attack on her before firing several shots and killing Dorsey.
The new Ninth Circuit opinion
The court majority stated that its review of this case involves a legal determination of whether Officer Agdeppa is entitled to have the lawsuit against him dismissed on qualified immunity grounds.
The court provided a brief explanation of the two prongs of the qualified immunity doctrine and explained: “The doctrine of qualified immunity protects government officials from §1983 liability  unless ‘(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” (Case citations omitted). For a plaintiff to overcome an officer’s qualified immunity defense, they must show that (1) the officer violated the constitution and (2) that the constitutional law violation was clearly established. 
The court observed that for this appeal, Agdeppa didn’t challenge the lower court’s determination that a reasonable juror could find that he employed excessive force against Dorsey (prong one). Instead, he argued that he is entitled to qualified immunity because Smith failed to establish that he violated “clearly established law.” (prong two). The court further explained, “For a right to be clearly established, it must be ‘sufficiently clear that every reasonable [officer] would understand that what he is doing violates that right.’” (Case citations omitted).
Officer Agdeppa did not violate “clearly established” law
The court observed that it is “undisputed that the officers were placed in a high-stress, rapidly developing situation involving a person who had reportedly assaulted a gym security officer and threatened others, and who was violently resisting the officers and assaulting them in an enclosed area.” Furthermore, there was a substantial difference in size and weight between Dorsey and the involved officers.
Moreover, during the violent struggle, the officers were forced to resort to using their TASERs but even this failed to bring Dorsey under control. Further, the court observed that “Just before the fatal shots were fired, the officers can be heard crying out in pain as crashing and thrashing noises intensify.” The court noted that the fatal shots were fired only after “the use of non-lethal force had proven ineffective, and only after the assault continued to intensify – with Dorsey having gained control of Rodriguez’s taser.”
The court reviewed the case law provided by Smith’s lawyers and concluded that nothing they produced was sufficient to make Agdeppa aware that by shooting Dorsey in this specific situation he was violating clearly established law.
Likewise, the court disagreed with the plaintiff’s assertion that Agdeppa violated clearly established law by failing to give Dorsey a warning before shooting him. Smith offered an earlier Ninth Circuit decision in Harris v. Roderick  to support the proposition that a warning should have been given before shooting. The court noted that in Harris it ruled that “whenever practicable, a warning must be given before deadly force is employed.” The court rejected Smith’s assertion that Agdeppa was required to give Dorsey a warning and stated, “That officers may be constitutionally required to provide a warning before using deadly force in some cases does not mean it is clearly established that such a warning was required in this case. As a result, Smith was required to come forward with ‘existing precedent’ that ‘squarely governs the specific facts at issue.’  She has not done so.”
This case is highly unusual in that federal legal opinions are ordinarily reversed based upon contrary decisions issued by judges at a higher level of authority in the federal judicial structure. Conversely, in this case, an appellate-level judge retired after being part of a majority decision that was unfavorable to a defendant police officer.
A new judge at the same level of authority was appointed to replace the retired judge and shortly thereafter the original decision was withdrawn. Soon after, the new judge joined the dissenting judge from the original opinion to issue a new decision favorable to the police officer. This may have happened in the past in other situations, but I have never seen this done before.
This outcome, favorable to the defendant officer, is in my opinion the correct outcome for this case. However, it is possible that the plaintiff’s lawyers will request a rehearing by the en banc panel of 11 circuit judges. This would, if granted, place the qualified immunity issue for Officer Agdeppa in play all over again. This case demonstrates the fragility of the qualified immunity defense for police officers.
With the aid of 20/20 hindsight that was clearly not available to the responding officers in this case, I believe a better future course of action would be to:
- Recognize that a naked trespasser causing a disturbance in a fitness gym by physically resisting/assaulting gym security officials is very likely to be challenged with mental illness and/or drug addiction.
- Recognize the vast difference in size between the offender and the officers and consider the tremendous difficulty of trying to control and arrest that person if he decides to resist.
- Call for additional help while delaying any hands-on approach and if possible, wait for back-up to arrive.
- Call for Crisis Intervention Team (CIT) trained officers to be part of the back-up team.
- Speak to the subject in a calm, non-aggressive manner while trying to talk him into surrender.
- Provide sufficient time for the subject to decide that surrender and help from mental health professionals is the best option.
- If an involuntary arrest becomes necessary, ensure that sufficient officer resources are present to make a safe arrest for all involved parties.
1. Smith v. Agdeppa, (NO. 20-56254) (9th Cir. 12/30/22. (Opinion withdrawn).
2. Smith v. Agdeppa, (NO. 20-56254) (9th Cir. 8/30/23). (New Opinion).
3. The "Los Angeles Times" article explained that one of the original appellate judges who authored the initial majority opinion against Agdeppa retired and a new judge was appointed in replacement. The new judge obviously had a different view of the facts and outcome than the judge who retired.
4. Dorsey was 6’ 1”, 280 lbs. and the officers were 5’ 1”, 145 lbs. and 5’5”, 145 lbs. respectively.
5. The cameras were no longer effective in filming the struggle, but the audio function of the cameras remained active during the fight.
6. Among other injuries, Agdeppa received a concussion from Dorsey’s attack that caused him to be out of work for six months.
7. Neither of the body-worn cameras were able to pick up Agdeppa’s order for Dorsey to stop his assault upon Rodriguez.
8. 42 U.S.C.§ 1983 (The federal civil rights statute).
9. An officer is entitled to qualified immunity unless the plaintiff can establish a constitutional violation by the defendant and the constitutional law on the particular issue is clearly established at the time the alleged violation occurred.
10. 126 F.3d 1189 (9th Cir. 1997).
11. Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (per curiam).