9th Circuit rejects ‘qualified immunity’ as reason to toss LAPD gym shooting case

Enough is in dispute about the fatal Los Angeles police shooting of a man in a Hollywood 24 Hour Fitness gym in 2018 that the controversial judicial doctrine of “qualified immunity” should not preclude a civil lawsuit filed by the man’s family from going before a jury, a federal appellate court ruled Friday.

The 2-1 ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals marked a victory for the family of 30-year-old Albert Dorsey, who suffered from mental illness and whose killing by LAPD Officer Edward Agdeppa after a struggle in the gym’s locker room sparked protests in L.A.

It also represented a win for advocates of police reform nationally, who have long viewed qualified immunity as one of the single largest barriers to police accountability in the U.S.

“We are overwhelmingly pleased with the 9th Circuit’s decision to pull back on the scope of qualified immunity,” said Brian Dunn, an attorney for Dorsey’s mother, Paulette Smith, who brought the family’s lawsuit.

California

Fatal shooting by officer at 24 Hour Fitness violated LAPD policy, Police Commission rules

A police officer violated department policy when he fatally shot a man in a locker room at a 24 Hour Fitness gym in Hollywood, the Los Angeles Police Commission ruled Tuesday.

Sept. 17, 2019

Kevin Gilbert, an attorney for Agdeppa, did not respond to a request for comment Friday. The Los Angeles Police Department declined to comment.

Dunn said he expects Agdeppa to seek another review of the case by a larger “en banc” panel of 11 circuit judges, which could reverse the three-judge panel, and to appeal if necessary to the more conservative U.S. Supreme Court — which has consistently upheld immunity for police officers in the past, including by reversing previous 9th Circuit decisions.

Dorsey’s killing has reverberated in L.A. for years, with activists still invoking his name when accusing the LAPD at street protests of a history of excessive force and brutality.

Dorsey was naked in the gym locker room and had been accused by security of trespassing and causing a disturbance when Agdeppa and another officer arrived and confronted him. They repeatedly tried to handcuff him without success — he was much bigger than them — and ultimately Tasered him multiple times before Agdeppa shot him.

Albert Dorsey in an image released by Los Angeles police on Dec. 11, 2018.

(Los Angeles Police Department)

The officers alleged that Dorsey had attacked them, and Agdeppa said he was in fear for his partner’s life when he fired. Their account has been disputed from the start, in part based on a lack of visible physical injuries to the officers.

The officers’ body cameras were knocked to the ground before the shooting occurred, so they captured the sounds of the officers struggling with, Tasering and shooting Dorsey, but no video.

In 2019, the Los Angeles Police Commission found that Agdeppa violated department policy when he shot Dorsey, and that he and his partner should have de-escalated the situation and called for backup.

Smith’s case against Agdeppa came before the 9th Circuit after Agdeppa challenged a lower court decision rejecting his argument that qualified immunity protected him from any personal liability in the matter.

Writing for the Circuit Court’s majority, Judge Morgan Christen, an Obama appointee, found that the lower court had been correct in ruling that a jury should consider whether Agdeppa’s use of deadly force “violated clearly established law” — for two reasons.

First, the lower court “recognized that a reasonable jury could reject the officers’ account of the shooting because there were significant discrepancies between their versions of events and other evidence in the record,” Christen wrote.

Second, the 9th Circuit has “long held that the Fourth Amendment requires officers to warn before using deadly force when practicable,” and there was no evidence Agdeppa did so or was unable to do so, Christen wrote.

“It is not our place to step into the jury’s shoes and we do not know what happened in the crucial interval before Agdeppa shot Dorsey,” Christen wrote.

Christen was joined by Judge Gary Feinerman, a federal district court judge from Illinois and a fellow Obama appointee assigned to the panel.

Circuit Judge Daniel Bress, a Trump appointee, dissented — writing that the “split-second decision” by Agdeppa presented “a classic case for qualified immunity.”

Bress wrote that the majority decision was “contrary to law and requires officers to hesitate in situations in which decisive action, even if leading to the regrettable loss of human life, can be necessary to protect their own.”

He wrote that the court had never before applied the rule that officers must issue a warning before using deadly force while “in the throes of a violent altercation,” and the majority erred in doing so here.

Dunn said whatever may happen in the case moving forward, Friday’s opinion bolsters the arguments of those challenging blanket applications of qualified immunity across the U.S.

“What the 9th Circuit said today is, ‘We’re going to look at this case on its merits,’” Dunn said.