LOS ANGELES (CN) — Swapping out a Barack Obama-appointed judge for a George W. Bush appointee, a panel of the Ninth Circuit Court of Appeals on Wednesday reversed its December opinion that a Los Angeles police officer wasn't entitled to so-called qualified immunity in a deadly shooting at a Hollywood gym.
In an unusual twist, Circuit Judge Consuelo Callahan was drawn to replace U.S. District Judge Gary Feinerman on the three-judge panel after the Obama appointee at the federal court in Chicago, who had served on the panel by designation, resigned from the bench late last year.
In May, Callahan voted "sua sponte" with Circuit Judge Daniel Bress, a Donald Trump appointee who had dissented to the majority's opinion against the LAPD officer, to withdraw the December decision and to reconsider anew the appeal of Officer Edward Agdeppa. Circuit Judge Morgan Christen, an Obama appointee who had written the previous ruling had voted against reconsideration and dissented in the new 2-1 opinion.
Agdeppa has been appealing an October 2020 ruling by the trial judge in the wrongful death lawsuit by the mother of Albert Dorsey, a Black man who was killed by Agdeppa during an altercation in the locker room of a 24 Hour Fitness gym almost five years ago. U.S. District Judge Christina Snyder had denied the officer's bid for qualified immunity, saying a jury should determine whether he was justified in killing Dorsey, whom his mother claims was unarmed and posing no threat to anyone.
In Wednesday's decision, Bress wrote for the majority that Snyder's decision was incorrect and that Agdeppa was entitled to qualified immunity, which protects government officials from being sued for performing their job, as a matter of law.
"Agdeppa’s use of deadly force, including his failure to give a warning that he would be using such force, did not violate clearly established law given the specific circumstances he encountered," Bress said. "Because none of the court’s prior cases involved similar circumstances, there was no basis to conclude that Agdeppa’s use of force here was obviously constitutionally excessive."
Ed Lyman, an attorney for Dorsey's mother Paulette Smith, said that despite the unconventional procedural issues involved, he remained optimistic that justice will ultimately prevail for Dorsey’s family.
Agdeppa and his partner, Officer Perla Rodriguez, had 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 feet, 1 inch 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 lost patience and tried to handcuff Dorsey, but as their body cameras had fallen from their uniforms in the ensuing scuffle, 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.
In her dissent to the majority findings, Christen said that her colleagues' opinion had usurped the jury's role.
"It avoids Agdeppa’s sworn statements, which leave little room to doubt that he had an opportunity to provide a deadly force warning, and sidesteps other evidence that would allow a jury to decide that the officers were no at imminent risk when Agdeppa shot Dorsey," Christen wrote.
An attorney for Agdeppa didn't immediately respond to a request for comment on the ruling.Follow @edpettersson
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