A reconstituted appellate panel now leaning to the right, has thrown out the panel's prior ruling that barred a Los Angeles police officer from invoking qualified immunity in a lawsuit alleging he unjustifiably killed a man resisting arrest, saying the officer was in reasonable fear for his partner's life.
The Aug. 30 decision was authored by Judge Daniel Bress, with agreement from Judge Consuelo Callahan, of the U.S. Court of Appeals for the Ninth Circuit. Judge Morgan Christen dissented. The decision favored Paulette Smith, mother of the late Albert Dorsey, in her civil rights action filed in 2019 against Los Angeles Police Officer Edward Agdeppa.
On Oct. 29, 2018, Agdeppa and Officer Perla Rodriguez responded to a report of a trespasser at a Hollywood gym, who was assaulting staff and patrons, according to court papers. The officers found 6-foot-1-inch, 280-pound Dorsey naked in a locker room.
U.S. Ninth Circuit Court of Appeals Judge Daniel Bress
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According to police, Dorsey refused to obey commands, leading the 5-foot-5-inch, 145-pound Rodriguez to try to handcuff him. Dorsey resisted and a struggle ensued, during which Dorsey was Tasered, but to little effect. The 5-foot-1-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 Los Angeles Board of Police Commissioners determined Agdeppa had grounds to fear serious injury or death, but he and Rodriguez helped create the lethal situation by poor planning and not trying to de-escalate the encounter.
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 can be used to shield police and other government officials from lawsuits over harm they may cause while carrying out official duties. In recent years, anti-policing forces have campaigned to strip officers of qualified immunity over shootings and other alleged instances of excessive force, or at least to make it difficult to employ it as a defense.
A panel of the Ninth Circuit Court of Appeals, made up of Judges Christen, Bress and Gary Feinerman, issued a 2-1 decision in December 2022, affirming Judge Snyder's ruling. Bress dissented and Feinerman soon retired.
In May 2023, the panel, with Callahan having replaced Feinerman, announced that by a 2-1 vote, it was withdrawing the earlier ruling and would rehear the case. No explanation was given at the time. 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.
Last week, the new panel duly found Agdeppa qualified for immunity.
"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. He (Dorsey) was given numerous opportunities to stand down, and he instead continued to fight," Judge Bress concluded.
The officers suffered relatively minor injuries, but Bress noted the law does not require them to have "sustained more grievous injuries or worse before using lethal force."
Bress pointed out the U.S. Constitution directs police in certain cases to issue a warning before using deadly force, but it was not shown a warning was obligatory in the Dorsey case. In Bress' view, Agdeppa was not required to "call a 'time-out' in the middle of an increasingly violent altercation."
Judge Christen dissented, saying police had options short of gunfire.
"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. 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. Rather, the officers stayed engaged as the situation continued to escalate," Christen found.
Christen said evidence is inconsistent and there were "significant discrepancies" between the officers' version and other evidence, "so much so that a reasonable jury could reject the officers’ account of the shooting." Christen added her two fellow appellate judges "usurp the jury's role," while "avoiding" and "sidestepping" certain evidence that could lead jurors to decide the officers' lives were not at stake during the altercation.
"Tellingly, though the majority (Judges Bress and Callahan) relies heavily on it, Officer Agdeppa objected to the admission of the Police Commissioners’ report. This is unsurprising because, at best, the report is a mixed bag for defendants," Christen observed.
Dorsey's mother was represented by: Edward M. Lyman III, of Family Legal APLC, of Playa Del Rey; Brian T. Dunn and James Bryant, of The Cochran Firm, of Los Angeles; and Megan R. Gyongyos, of Carpenter Zuckerman & Rowley, of Beverly Hills.
Agdeppa was defended by: Kevin E. Gilbert and Carolyn M. Aguilar, of Orbach Huff Suarez & Henderson, of Pleasanton; and Susan E. Coleman, Keiko J. Kojima, and Lisa W. Lee, of Burke Williams & Sorensen, of Los Angeles.