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LA cop loses immunity bid in fatal gym shooting

In a 2-1 ruling, a Ninth Circuit panel agreed conflicting evidence in the case means a jury must decide if the police officer used unreasonable force.

LOS ANGELES (CN) — A divided Ninth Circuit panel on Friday denied a Los Angeles Police Department officer's quest for so-called qualified immunity over a fatal shooting in the locker room of a 24 Hour Fitness gym in Hollywood four years ago.

The split panel affirmed a trial judge's decision that because of the conflicting evidence in the case, a jury will need to decide whether Officer Edward Agdeppa used unreasonable force and violated the constitutional rights of Albert Dorsey when he shot him while Dorsey resisted the attempts by Agdeppa and his partner to handcuff him.

According to the majority, Agdeppa wasn't entitled to qualified immunity, which protects government officials from being sued for performing their job, as a matter of law. Not only did his account of what happened during the altercation conflict with some of the other evidence and witness accounts, the panel found, summary judgment is not the best way to decide deadly force cases because they often involve one-sided testimony by law enforcement.

"Deadly force cases present additional, heightened challenges because defendant officers are often the only surviving eyewitnesses," U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, wrote for the majority. "For this reason, we have explained that summary judgment should be granted 'sparingly' in deadly force cases and courts must take special care to 'ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story — the person shot dead — is unable to testify.'”

A lawyer for Agdeppa didn't immediately respond to a request for comment on the ruling.

In October 2020, U.S. District Judge Christina Snyder, who oversees the wrongful death lawsuit by Dorsey's mother against Agdeppa, denied the officer's bid for qualified immunity, saying a jury should determine whether he was justified in killing Dorsey, a Black man who his mother says was unarmed and posing no threat to anyone.

Agdeppa and his partner, Officer Perla Rodriguez, entered the 24 Hour Fitness on Sunset Boulevard on the morning of Oct. 29, 2018, after reports of a man causing a disturbance inside the gym. Once inside, they found Dorsey standing naked in the locker room drying himself off. 

The officers repeatedly instructed him to get dressed, but the 30-year-old Dorsey, who stood 6'1" tall and weighed 280 pounds calmly continued to towel himself dry while listening to music on his mobile phone. After a few minutes, the officers lose patience and try to handcuff Dorsey and their body cameras fell from their uniforms in the ensuing scuffle — so only audio of the altercation was captured.

According to Agdeppa's account, the officers used a Taser on Dorsey multiple times but he continued to fight with them and, at some point, knocked Agdeppa into a wall and straddled over Rodriguez and punched her in the face. At that point, Agdeppa shot Dorsey multiple times, killing him.

However, contrary to Agdeppa's recollection, he is never heard on the audio recording telling Dorsey to stop before shooting him. Also, according to Snyder's ruling, there was no evidence of injuries consistent with Agdeppa's claim that Dorsey was pummeling Rodriguez in the face.

The LA Police Commission, an appointed civilian oversight panel, determined in September 2019 that the shooting violated LAPD policy. But despite the commission’s finding, a July 2020 report by then-District Attorney Jackie Lacey determined Agdeppa’s actions were lawful and that the shooting was in self-defense.

U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, dissented and said his colleagues had overstated the alleged inconsistencies in the witness accounts of what happened at the gym and had glossed over the officers’ multiple attempts to avoid resorting to deadly force.

"After repeated verbal commands and efforts to use nonlethal force failed, no clearly established law required these officers to recite magic words of further warning in the highly dangerous situation they confronted," Bress wrote.

U.S. District Judge Gary Feinerman, an Obama appointee sitting by designation from the Northern District of Illinois, rounded out the panel.

"Many people disagree fiercely about qualified immunity," Edward Lyman III, a lawyer for Dorsey's mother Paulette Smith, said in an email. "This is reflected by the length of the decision and dissent. At its core qualified immunity is judicial activism.  Coincidentally its proponents are against judicial activism. This case will finally proceed to trial and be decided by a jury."

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