9th Circuit reverses itself, upholds ‘qualified immunity’ for LAPD officer in gym shooting

Reversing a decision from December, a panel of federal appellate court judges ruled Wednesday that a Los Angeles police officer who fatally shot a man in a gym shower in 2018 is protected from litigation by the controversial judicial doctrine of “qualified immunity.”

The 2-1 ruling by the three-judge panel of the U.S. 9th Circuit Court of Appeals highlighted the powerful court’s conservative-liberal divide, particularly on matters of police accountability, and how important decisions can hinge on a single vote.

The ruling occurred after a judge appointed by President Obama retired and was replaced on the panel by a judge appointed by President George W. Bush, which shifted the ideological balance of the panel. The panel voted in May to rescind its earlier ruling and reconsider the case.

The new ruling undoes a December victory for the family of 30-year-old Albert Dorsey, whose killing by LAPD Officer Edward Agdeppa after a struggle at a 24 Hour Fitness in Hollywood sparked protests in L.A.

The ruling had also been considered a win for advocates of police reform nationally, who have long denounced qualified immunity as a barrier to police accountability and lauded the decision for challenging the doctrine’s sweep.

The new ruling instead hands a win to Agdeppa and the city of L.A. — though it may not stand, either. With two split panels in a row ruling in opposite ways, the case could be taken up by a 11-judge “en banc” panel of the 9th Circuit or appealed to the conservative U.S. Supreme Court, which has upheld immunity for officers in other cases.

Qualified immunity protects officers from personal liability in civil litigation when their actions on the job don’t violate “clearly established law.” The court Wednesday found that Agdeppa’s actions fit that criterion, based on the circumstances of the altercation with Dorsey.

Dorsey was naked in the gym locker room when Agdeppa and another officer arrived. Gym employees had accused Dorsey of trespassing and causing a disturbance.

The officers asked Dorsey to leave, and he ignored them, dancing to music as he moved about the men’s locker room. Eventually, the officers attempted to handcuff Dorsey, who was bigger than the officers, without success.

The encounter was partly captured by the officers’ body cameras, which were knocked to the ground before the shooting. They captured sound but no video of the officers Tasering Dorsey multiple times before Agdeppa shot him.

Agdeppa and his partner accused Dorsey of attacking them, and Agdeppa said he was in fear for his partner’s life when he shot Dorsey. Their account has been disputed, in part on the grounds that the officers did not have visible physical injuries.

Brian Dunn, an attorney for Dorsey’s mother, Paulette Smith, said he was frustrated with the latest ruling, which had left a “sour taste” in his mouth. Smith brought the family’s lawsuit.

“What it shows is it doesn’t matter the merits of your case; it matters who is sitting on the panel,” he said.

Dunn said he hadn’t decided whether to ask for an en banc review or to otherwise appeal. There are remaining claims in the case — including around the city’s negligence in the matter — that don’t hinge on the individual officer’s immunity, and which he may focus on pursuing instead.

Dunn noted it has already been five years since Dorsey was killed. He said he wants to prioritize the wishes of his client, who he said has been frustrated by the 9th Circuit’s handling of the case.

“She just thinks games are being played, and I don’t have a logical way of talking her out of that notion,” Dunn said. “My first concern is getting this case to court on her remaining claims.”

Kevin Gilbert, an attorney for Agdeppa, did not respond to a request for comment Wednesday. LAPD Chief Michel Moore said the Police Department would “continue to monitor the court’s actions.”

In 2019, the Los Angeles Police Commission — a civilian body that reviews police shootings — ruled that Agdeppa violated LAPD policy when he shot Dorsey. The commission said the officers should have de-escalated the situation and called for backup.

After Dorsey’s family sued, a lower court agreed with the family that qualified immunity did not protect Agdeppa from personal liability in the matter. That decision was appealed to the 9th Circuit.

In December, a three-judge 9th Circuit panel composed of two Obama appointees and one Trump appointee issued a 2-1 ruling upholding the lower court’s decision.

Judge Morgan Christen, an Obama appointee, wrote the court’s majority opinion at the time. She was joined by Judge Gary Feinerman, a federal court judge from Illinois and a fellow Obama appointee who had been assigned to the panel.

Christen wrote that the lower court was correct in finding that a jury should consider whether Agdeppa’s use of deadly force “violated clearly established law” because there were “significant discrepancies” between the officers’ versions of events and other evidence in the record. There also was no evidence, she wrote, that Agdeppa had warned Dorsey that he was going to use deadly force before doing so, despite the 4th Amendment requiring such warnings.

“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.

The panel’s third member, Circuit Judge Daniel Bress, dissented, arguing that the “split-second decision” by Agdeppa presented “a classic case for qualified immunity.”

After the ruling was issued but before a decision was made on a request that the case be reheard by a larger 9th Circuit panel, Feinerman resigned from judicial service and was replaced in the case by Circuit Judge Consuelo Callahan, the Bush appointee.

In May, the court gave notice that the reconstituted panel had decided to withdraw its December opinion in favor of reconsidering the case itself.

This time, Bress wrote the opinion of the court, joined by Callahan, finding that Agdeppa’s use of deadly force “did not violate clearly established law,” and that he was therefore entitled to qualified immunity.

Bress wrote that regardless of discrepancies about the exact nature of the incident, Dorsey had clearly attacked the officers. He also wrote that the facts of the case did not necessarily require that Agdeppa issue a warning of deadly force, again because of the rapidly evolving nature of the situation.

Christen dissented, reiterating her arguments from the December opinion that a jury, not the court, was better positioned to determine whether Agdeppa’s actions clearly violated law.