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Ninth Circuit:
No Qualified Immunity for Sergeant Who Shot Man With Bat
Panel Declines to Upend $10 Million Judgment, Saying Distance Between Parties, Entry Wounds to Victim’s Back, Supported View That There Was No Immediate Threat Even if Man Was Approaching Officer With Weapon Raised
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of qualified immunity to a peace officer who—after responding to a call indicating that someone was knocking down mailboxes and smashing car windows—shot and killed a man approaching him with a bat, saying the fact that there was a distance of 10 to 15 feet between the parties and that the fatal wounds were on the victim’s back showed that the officer was not in immediate danger.
An officer will receive qualified immunity from an action filed under 42 U.S.C. §1983 if the plaintiff fails to show a constitutional violation or if the right at issue was not “clearly established” by case law at the time of the incident.
Riverside County Sheriff’s Department Sergeant Dan Ponder sought immunity after the children of the decedent, Clemente Najera-Aguirre, filed a §1983 civil rights complaint against him and the county relating to the Lake Elsinore fatal shooting, which occurred on April 15, 2016. The plaintiffs assert that Ponder violated Najera’s Fourth Amendment rights by using deadly force when there was no immediate threat to the sergeant or others.
After a jury returned a $10 million verdict in favor of the plaintiffs, Ponder filed a motion for judgment as a matter of law. He argued that “there was no factual basis for Plaintiffs’ excessive force cause of action against Defendant” and “even if there were…Defendant was entitled to qualified immunity based on the evidence presented at trial.”
According to Ponder’s trial testimony, he first tried to use less-than-lethal force by deploying pepper spray against Najera, after the victim failed to drop the bat after being ordered to do so and turned to face the sergeant with the weapon raised. The defendant said the attempt was unsuccessful and the victim began closing the distance between them.
Ponder claims that he fired off a few shots, then repositioned. While he sought a better angle, the sergeant contends that Najera took a “blading position”—turning to the side and making himself a smaller target—but did not drop the bat, and the officer fired off a second volley; he asserts that the entire confrontation was over within five seconds.
Najera fell down “like a tree” and was pronounced dead shortly thereafter. An autopsy revealed shots to his right upper chest, his elbow, and fatal ones to his back.
Motion Denied
On Aug. 11, 2023, Judge Dolly M. Gee of the Central District of California (now the chief judge) denied the motion for judgment as a matter of law, saying:
“Plaintiffs introduced evidence that called Ponder’s trial testimony into question: they presented evidence showing that events unfolded more slowly than Ponder claimed; he paused after he fired the initial volley of shots, then shot again; and Decedent did not ‘rush’ toward Ponder, but Ponder shot Decedent such that he fell where he stood (rather than stumbling several feet away and then falling), and Ponder fired the final shots into Decedent’s back, after time to pause and reassess the situation and when Decedent could not reasonably be perceived to continue to pose a threat to Ponder.”
As to qualified immunity, Gee wrote:
“Ponder asserts that even if he violated Decedent’s constitutional rights by using excessive force, ‘such right was not clearly established given the facts of this case and factually analogous precedent.’…To the contrary, and viewing the evidence in favor of upholding the verdict (as the Court must),…it was beyond debate that Ponder’s actions in shooting Decedent in the back violated the Fourth Amendment. Ponder argues that he followed his training, but this argument is to no avail. It is binding precedent, not Ponder’s training, that sets forth clearly established law for qualified immunity purposes.”
Yesterday’s opinion, written by Senior Circuit Judge M. Margaret McKeown and joined in by Circuit Judge Ronald M. Gould and Senior Judge Jane A. Restani of the U.S. Court of International Trade, sitting by designation, affirms Gee’s order.
Qualified Immunity
McKeown said “[t]he jury’s finding in favor of the Najeras establishes that Ponder violated Najera’s Fourth Amendment right to be free from excessive force” and remarked that “[a]ssessing qualified immunity after a jury verdict turns on the second, ‘clearly established’ prong, which requires deference to the jury’s view of the facts.”
Noting that “clearly established law…holds deadly force is not justified where the suspect poses no immediate threat,” she commented:
“Our precedent clearly establishes the illegality of Ponder’s actions. We have held that police used excessive force when officers, ‘without warning,’ ‘shot and killed’ an individual who was holding a knife but not threatening the deputies and standing ‘roughly six to eight feet away’ from them.”
In viewing the facts at trial in the light most favorable to the plaintiffs, in deference of the jury’s verdict, the judge said, the present case “is highly analogous” to cases where illegality was found and those cases “put Ponder on notice that his actions would violate Najera’s rights.”
Adding that “while Ponder testified that Najera posed a threat, the jury had good reason to doubt his testimony,” she noted the discrepancies between his testimony and that provided by others.
The jurist reasoned that the defendant’s admission that Najera partially turned away from him—when considered together with other testimony that the sergeant paused for up to thirty seconds between the two rounds of shots and the forensic evidence showing the entry wounds to the decedent’s back—supported the jury’s determination that the victim did not pose a threat at the time he was shot.”
She declared:
“We recognize that law enforcement must make quick decisions regarding threats and act in volatile situations. But they are also trained to make ongoing threat assessments and are on clear notice that deadly force is not permitted where there is no immediate threat. Foundational cases…have put this principle beyond debate….Shooting Najera in the back when he posed no immediate threat does not entitle Ponder to qualified immunity.”
The case is Estate of Najera-Aguirre v. County of Riverside, 23-55718.
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