Paulette Smith v. Edward Agdeppa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULETTE SMITH, individually and No. 20-56254

as Successor in Interest to Albert

Dorsey, deceased, D.C. No.

2:19-cv-05370-

Plaintiff-Appellee, CAS-JC

v.

EDWARD AGDEPPA, an individual, OPINION

Defendant-Appellant,

and

CITY OF LOS ANGELES, a

municipal entity; DOES, 1 through 10,

Defendants.

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted March 16, 2022

Submission Withdrawn April 11, 2023

Resubmitted May 4, 2023

San Francisco, California

Filed August 30, 2023

2 SMITH V. AGDEPPA

Before: Consuelo M. Callahan, Morgan Christen, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress;

Dissent by Judge Christen

SUMMARY *

Qualified Immunity/Deadly Force

The panel reversed the district court’s denial of qualified

immunity to police officer Edward Agdeppa in a 42 U.S.C.

§ 1983 action alleging that Agdeppa used unreasonable

deadly force when he shot and killed Albert Dorsey.

The panel first held that it had jurisdiction over this

interlocutory appeal because, notwithstanding the factual

disputes, Agdeppa only contested the district court’s legal

conclusion that there was a violation of Dorsey’s clearly

established rights.

The panel held that because Agdeppa did not challenge

the district court’s determination that a reasonable juror

could conclude that Agdeppa violated Dorsey’s Fourth

Amendment right to be free from excessive force, this appeal

turned solely on the second step of the qualified immunity

analysis—whether the claimed unlawfulness of Agdeppa’s

conduct was “clearly established.”

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SMITH V. AGDEPPA 3

The panel held that 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. In evaluating

whether Dorsey posed an immediate threat to safety that

would justify the use of deadly force, the panel noted that it

was undisputed that Agdeppa and another officer repeatedly

warned Dorsey to stand down; unsuccessfully tried to use

non-lethal force; and engaged in a lengthy, violent struggle

in a confined space with Dorsey, who dominated the officers

in size and stature and who had gained control of a

taser. 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. Moreover, past precedent would not have caused

Agdeppa to believe that he was required to issue a further

warning in the middle of an increasingly violent altercation.

Dissenting, Judge Christen stated that qualified

immunity was improper because Agdeppa’s characterization

of the facts conflicted with physical evidence and witness

statements, so much so that a reasonable jury could reject the

officers’ account of the shooting. This court has well-

established precedent that an officer must give a deadly force

warning if practicable, and a reasonable jury could conclude

that Agdeppa had the opportunity to give a deadly force

warning and failed to do so.

4 SMITH V. AGDEPPA

COUNSEL

Kevin E. Gilbert (argued) and Carolyn M. Aguilar, Orbach

Huff Suarez & Henderson, Pleasanton, California; Susan E.

Coleman, Keiko J. Kojima, and Lisa W. Lee, Burke

Williams & Sorensen LLP, Los Angeles, California; for

Defendants-Appellant.

Edward M. Lyman III (argued), Family Legal APLC, Playa

Del Rey, California; Brian T. Dunn and James Bryant, The

Cochran Firm - California, Los Angeles, California; Megan

R. Gyongyos, Carpenter Zuckerman & Rowley LLP,

Beverly Hills, California; for Plaintiff-Appellee.

OPINION

BRESS, Circuit Judge:

Two police officers were dispatched to a gym after a man

reportedly threatened gym patrons and assaulted a security

guard. The suspect then violently attacked the officers and

refused to stop after they repeatedly deployed their tasers.

One officer eventually resorted to lethal force to end the

aggression. We are asked to decide whether this officer is

entitled to qualified immunity. We hold that he is. The

officer’s use of deadly force did not violate clearly

established law. For this sole reason, we reverse the district

court’s decision.

SMITH V. AGDEPPA 5

I

A

We recite the facts in the light most favorable to the

plaintiff, noting when facts are disputed or when the account

of events is based principally on the officers’ descriptions.

When, as here, we have videotape of the events, we “view[]

the facts in the light depicted by the videotape.” Scott v.

Harris, 550 U.S. 372, 381 (2007).

Around 9:00 a.m. on the morning of October 29, 2018,

Officers Edward Agdeppa and Perla Rodriguez were called

to a 24-Hour Fitness gym on Sunset Boulevard in

Hollywood to investigate an apparent trespasser who was

causing a disturbance. Both officers activated their body

cameras before entering the gym. Once inside, an employee

immediately approached the officers and reported, “We have

a gentleman who’s a little bit irate, and he’s not listening,

and he’s already threatened a few members, and he’s

assaulted security as well.” The employee led the officers to

the men’s locker room where the suspect, later identified as

Albert Dorsey, was located.

Once inside, the officers encountered Dorsey, who was

standing naked near a shower area and playing music from

his phone aloud. Dorsey was a very large man,

approximately 6’1” tall and weighing 280 pounds. Agdeppa

and Rodriguez were 5’1” and 5’5,” respectively, and each

weighed approximately 145 pounds. The officers repeatedly

ordered Dorsey to turn off his music, put on his clothes, and

leave the gym. Dorsey did not comply.

After two minutes had passed, Dorsey walked across the

room, away from his clothes, to look at himself in the mirror.

Both officers again instructed Dorsey to get dressed, but

6 SMITH V. AGDEPPA

Dorsey continued to refuse, appearing to taunt the officers.

As the officers waited, Dorsey began dancing to the music

while raising his middle finger in Agdeppa’s direction. At

various points in the videos, two private security guards are

seen in the locker room with the officers.

After more than four minutes had passed since the

officers first told Dorsey he needed to leave, Agdeppa

approached Dorsey to handcuff him from behind. Dorsey

resisted Agdeppa’s attempts to control his arms, at which

point Rodriguez stepped in to help. Agdeppa eventually

managed to place a handcuff on Dorsey’s right wrist while

Rodriguez attempted to control Dorsey’s left wrist and

elbow. Dorsey continued to struggle, so the officers tried

various tactical maneuvers to secure Dorsey’s hands. This

included attempting to secure Dorsey against the wall,

switching sides, and using arm, finger, and wrist locks.

Despite these efforts, the officers could not get Dorsey under

control.

During the struggle, Agdeppa and Rodriguez attempted

to use Rodriguez’s handcuffs to form a “daisy chain,” which

involves connecting two or more sets of handcuffs together

to restrain suspects who are too combative or large to be

restrained by a single set of cuffs. As the officers attempted

to attach the handcuffs together, Dorsey forcefully pulled his

left arm away from Rodriguez and managed to break free of

her grip. The officers directed Dorsey to calm down and stop

resisting, but he continued to defy them. The officers then

maneuvered Dorsey against a wall while using their body

weight to force his hands behind his back.

After initially pinning Dorsey to the wall, Agdeppa was

able to broadcast a request for additional police units. As

Dorsey became more combative, Agdeppa radioed in a

SMITH V. AGDEPPA 7

request for backup units, which is a more urgent call for

assistance. Approximately one minute after going “hands

on” with Dorsey, Rodriguez’s body camera was knocked to

the ground in the struggle. Agdeppa’s camera was knocked

to the ground shortly thereafter, and the cameras captured

minimal video of the rest of the events in question. But they

continued to record audio, which included frequent bangs,

crashes, shouts of pain, and other indicia of a violent

confrontation. 1

It is undisputed that a violent struggle ensued in the

locker room. Despite their further efforts, the officers were

unable to control Dorsey, who became increasingly

aggressive. At multiple points during the audio recordings,

the officers are repeatedly heard yelling at Dorsey to “Stop!”

and “Stop resisting!” Dorsey eventually managed to break

free of the officers’ grips, and, in response, Agdeppa

unholstered his taser and held it to Dorsey’s chest. Agdeppa

maintains that he warned Dorsey he would use the taser if

Dorsey continued to resist. When Dorsey refused to stop his

violent struggling, Agdeppa cycled the taser twice into

Dorsey’s body. After this failed to subdue Dorsey,

Rodriguez fired her taser dart into Dorsey’s back and

activated it for approximately five seconds. After the first

attempt failed, Rodriguez activated her taser twice more

without success.

1

What transpired during the rest of the altercation is based largely on the

officers’ testimony and the bodycam audio. But for purposes of our later

legal analysis, the material aspects of the ensuing events are not

genuinely disputed, such as Dorsey violently resisting arrest, the officers

firing their tasers, and the fact that the violent struggle escalated in the

moments leading up to the shooting.

8 SMITH V. AGDEPPA

The audio recordings confirm that the struggle escalated

after the taser deployments. Rodriguez can be heard

repeatedly demanding that Dorsey “turn around” after the

tasers were cycled. The officers are then heard shouting,

groaning, and crying out in pain as the sounds of banging

and thrashing increase in volume and intensity. Just before

Agdeppa fired the fatal shots, we hear the most intense

shouts of pain from the officers amidst loud crashing noises.

The officers’ accounts of this part of the story are

consistent with each other. Agdeppa indicated that Dorsey

did not attempt to flee but instead “advance[d] upon” the

officers, “punching at [their] heads and faces while the

handcuff attached to his wrist also swung around and struck”

them. During the struggle, Dorsey landed blows on

Agdeppa’s head and face area. Agdeppa recalled that one

blow was extremely forceful and knocked him backwards

into a wall, momentarily disorienting him and causing him

to drop his taser on the locker room floor. After Rodriguez

fired her taser for the third time, Dorsey pivoted and struck

her, knocking her to the ground. The officers claim that

Dorsey then straddled Rodriguez, striking her repeatedly and

gaining control of her taser.

Agdeppa remembered Dorsey

“pummeling . . . Rodriguez with a flurry of punches” as she

laid in the fetal position, trying to protect her face and head.

Rodriguez believed that her life was at risk, and Agdeppa too

feared that Dorsey would kill Rodriguez. It was at this point

that Agdeppa fired the fatal shots. After he was shot, Dorsey

was still holding one of the officers’ tasers in his hand.

Agdeppa claimed he warned Dorsey before shooting

him, but this part of the audio recording is chaotic. One can

hear a man’s voice shouting something just before the shots

SMITH V. AGDEPPA 9

were fired, though what is said is unclear. Whether a final

warning was given is disputed and cannot be readily

ascertained from the audio recordings. Immediately

thereafter, Agdeppa announced over his police radio that

shots had been fired and that an officer and suspect were

down.

Agdeppa and Rodriguez were treated at the emergency

room following the incident. Agdeppa was given sutures on

the bridge of his nose and later reported being diagnosed

with a concussion, which left him unable to work for six

months and had further longer-lasting effects. Rodriguez

recalled having a swollen left check and right jaw, abrasions

on her ear and hands, and a pulled muscle behind her knee.

B

The Los Angeles Board of Police Commissioners

(BOPC) reviewed the incident and issued written findings.

The findings were based on various accounts, including from

the two private security guards who are seen at different

points in the bodycam videos. As the district court noted,

“the course of events presented in the Findings largely

conform to Agdeppa’s account,” with witnesses who were in

the locker room substantiating key moments in the

encounter. In particular, the BOPC report concluded that

“available evidence supports that [Agdeppa’s] belief that

there was an imminent threat of death or serious bodily

injury at the time of the [shooting] was objectively

reasonable.”

The witnesses’ accounts in the BOPC findings

corroborate the officers’ descriptions of a violent, escalating

struggle in which they faced a grave risk of serious injury, or

worse. For example, as set forth in the BOPC report,

Witness F, a security guard, recalled that after Dorsey was

10 SMITH V. AGDEPPA

tased, Dorsey punched Agdeppa “more than eight times” in

the “face and head area with his fist that was handcuffed,”

with “the force of the punches knock[ing] [Agdeppa] into the

lockers and walls.” 2 Witness F recalled that “[t]his caused

[Agdeppa] to bounce back toward [Dorsey], who then struck

[Agdeppa] in the face again.” Witness F further described

that Dorsey was “striking [Rodriguez] in the face with his

half-open hand” and “straddling” her, and that “[Rodriguez]

was bleeding from []her mouth as [Dorsey] was hitting

[]her.”

The BOPC report states that after Rodriguez was

“knocked to the ground by [Dorsey] and was attempting to

defend [herself],” Dorsey “grabbed the TASER with his left

hand and began to push the TASER into [Rodriguez]’s face,

simultaneously hitting [Rodriguez] with his right fist, which

had the handcuffs attached.” Indeed, the BOPC report

arguably describes a more desperate situation than even

Agdeppa recalled: in Witness F’s recollection, “moments

prior” to the shooting, and “while [Dorsey] was straddling

[Rodriguez], [Dorsey] grabbed [Agdeppa]’s gun and

attempted to pull it out of its holster.”

The BOPC report faulted the officers for poor planning

and for failing to use de-escalation tactics earlier in the

encounter. Because of these “tactical decisions” earlier in

the encounter that placed the officers at a “tactical

disadvantage,” the BOPC report on this basis found the

ultimate use of force unreasonable and outside of department

policy. But the BOPC also found—relying on independent

2

Although the BOPC report refers to Officers “A” and “B,” it is apparent

based on the bodycam video and audio and the rest of the record that “A”

is Agdeppa and “B” is Rodriguez.

SMITH V. AGDEPPA 11

witnesses—that Agdeppa reasonably perceived a risk of

death or serious injury to the officers:

[Agdeppa] used deadly force at a time when,

as supported by the accounts of two

independent witnesses, he[] and [Rodriguez]

were being assaulted by [Dorsey]. At that

time, the violence of [Dorsey’s] assault

relative to the officers’ capacities to defend

themselves was such that it was objectively

reasonable to believe that there was an

imminent threat to the officers of death or

serious bodily injury.

C

Paulette Smith, Dorsey’s mother, filed this lawsuit

against Agdeppa and the City of Los Angeles. Smith

claimed a violation of 42 U.S.C. § 1983 based on Agdeppa’s

allegedly unreasonable use of deadly force. She also sought

to hold the City liable under Monell v. Dep’t of Social

Services, 436 U.S. 658 (1978), for an assertedly

unconstitutional policy or custom. Smith further brought

wrongful death actions against Agdeppa and the City under

California law. The parties later stipulated to the City’s

dismissal from the case.

Agdeppa moved for summary judgment. He argued that

his use of deadly force was objectively reasonable and that

regardless, he was entitled to qualified immunity. The

district court found there was a genuine dispute over whether

Dorsey posed an immediate threat to the officers sufficient

to warrant the use of deadly force. In particular, the district

court found disputes of fact concerning whether the severity

of the officers’ injuries was consistent with a threat of death

12 SMITH V. AGDEPPA

or serious injury, whether (based on a bullet’s reported

trajectory) Dorsey was crouching over Rodriguez when

Agdeppa discharged his weapon, and whether witnesses

intervened in the altercation. The district court also found

that a reasonable jury could conclude that Agdeppa failed to

warn Dorsey before firing the fatal shots.

The court then concluded that because a jury could find

that a reasonable officer would not have believed Dorsey

posed an immediate threat, Agdeppa was not entitled to

qualified immunity. The court denied Agdeppa’s motion for

summary judgment on the plaintiff’s state law claims for

similar reasons. Agdeppa timely appeals.

II

The denial of summary judgment is usually not an

immediately appealable final decision, but “that general rule

does not apply when the summary judgment motion is based

on a claim of qualified immunity.” Plumhoff v. Rickard, 572

U.S. 765, 771 (2014). “[B]ecause ‘pretrial orders denying

qualified immunity generally fall within the collateral order

doctrine,’” in the qualified immunity context we “typically

have jurisdiction over interlocutory appeals from the denial

of summary judgment.” Estate of Anderson v. Marsh, 985

F.3d 726, 730 (9th Cir. 2021) (quoting Plumhoff, 572 U.S. at

772). Nevertheless, our “interlocutory review jurisdiction is

limited to resolving a defendant’s ‘purely legal contention

that his or her conduct did not violate the Constitution and,

in any event, did not violate clearly established law.’” Id. at

731 (alterations omitted) (quoting Foster v. City of Indio,

908 F.3d 1204, 1210 (9th Cir. 2018)).

Smith contends that Agdeppa’s appeal is based only on

factual disputes that are not reviewable on interlocutory

appeal. That is not correct. Agdeppa only contests the legal

SMITH V. AGDEPPA 13

conclusion that there was a violation of Dorsey’s clearly

established rights. We have jurisdiction “to the extent ‘the

issue appealed concerned, not which facts the parties might

be able to prove, but, rather, whether or not certain facts

showed a violation of clearly established law.’” Foster, 908

F.3d at 1210 (quoting Johnson v. Jones, 515 U.S. 304, 311

(1995)). The factual disputes that the district court

highlighted therefore do not preclude our review because we

“have jurisdiction to review an issue of law determining

entitlement to qualified immunity—even if the district

court’s summary judgment ruling also contains an evidence-

sufficiency determination.” Marsh, 985 F.3d at 731; see also

Wilkins v. City of Oakland, 350 F.3d 949, 951–52 (9th Cir.

2003).

We review de novo the district court’s denial of

summary judgment. Tobias v. Arteaga, 996 F.3d 571, 579

(9th Cir. 2021). We view the facts and draw reasonable

inferences in the light most favorable to Smith, the

nonmoving party. District of Columbia v. Wesby, 138 S. Ct.

577, 584 n.1 (2018). “Although we ‘assum[e] that the

version of material facts asserted by the [plaintiff] is correct,’

we may consider facts offered by the defendant that are

‘uncontradicted by any evidence in the record.’” Hopson v.

Alexander, 71 F.4th 692, 697 (9th Cir. 2023) (citations

omitted) (first quoting Jeffers v. Gomez, 267 F.3d 895, 903

(9th Cir. 2001); and then quoting Wilkinson v. Torres, 610

F.3d 546, 551 (9th Cir. 2010)).

A

The doctrine of qualified immunity protects government

officials from § 1983 liability unless “(1) they violated a

federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the

14 SMITH V. AGDEPPA

time.’” Wesby, 138 S. Ct. at 589 (quoting Reichle v.

Howards, 566 U.S. 658, 664 (2012)). Because Agdeppa

does not challenge the district court’s determination that a

reasonable juror could conclude that Agdeppa violated

Dorsey’s Fourth Amendment right to be free from excessive

force, this appeal turns solely on the second step of the

qualified immunity analysis—that is, whether the claimed

unlawfulness of Agdeppa’s conduct was “clearly

established.”

For a right to be clearly established, it must be

“sufficiently clear that every reasonable official would

understand that what he is doing violates that right.”

Mullenix v. Luna, 577 U.S. 7, 11–12 (2015) (per curiam)

(quoting Reichle, 566 U.S. at 664). This is a high standard:

“existing precedent must have placed the statutory or

constitutional question beyond debate.” Id. at 12 (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). This means

that “every ‘reasonable official would understand that what

he is doing’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting

al-Kidd, 563 U.S. at 741–42). The “rule must be ‘settled

law,’ which means it is dictated by ‘controlling authority’ or

‘a robust consensus of cases of persuasive authority.’”

Wesby, 138 S. Ct. at 589–90 (first quoting Hunter v. Bryant,

502 U.S. 224, 228 (1991) (per curiam); then quoting al-Kidd,

563 U.S. at 735). This “demanding” requirement “protects

‘all but the plainly incompetent or those who knowingly

violate the law’” and calls for “a high ‘degree of

specificity.’” Wesby, 138 S. Ct. at 589–91 (first quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986); then quoting

Mullenix, 577 U.S. at 13); see also Rivas-Villegas v.

Cortesluna, 142 S. Ct. 4, 7–8 (2021) (per curiam).

The Supreme Court has “repeatedly stressed that courts

must not ‘define clearly established law at a high level of

SMITH V. AGDEPPA 15

generality.’” Wesby, 138 S. Ct. at 590 (quoting Plumhoff,

572 U.S. at 779). And this “specificity is especially

important in the Fourth Amendment context, where . . . ‘[i]t

is sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply to

the factual situation the officer confronts.’” Mullenix, 577

U.S. at 12 (alteration in original) (quoting Saucier v. Katz,

533 U.S. 194, 205 (2001)). For us, then, “[t]he question . . .

is whether ‘clearly established law prohibited’ [Agdeppa]

from using the degree of force that he did in the specific

circumstances that the officers confronted.” O’Doan v.

Sanford, 991 F.3d 1027, 1037 (9th Cir. 2021) (quoting City

of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per

curiam)).

The district court concluded that Agdeppa was not

entitled to qualified immunity because “[a]t the time of the

incident, it was ‘clearly established’ that ‘[w]here the

suspect poses no immediate threat to the officer and no threat

to others, the harm resulting from failing to apprehend him

does not justify the use of deadly force to do so.’” (quoting

Tennessee v. Garner, 471 U.S. 1, 11 (1985)). This reasoning

was insufficient because, outside of an obvious case, “[t]he

general principle that deadly force requires a sufficient threat

hardly settles th[e] matter.” Mullenix, 577 U.S. at 14; see

also Rivas-Villegas, 142 S. Ct. at 8. As we have previously

recognized, “[t]he standards from Garner . . . ‘are cast at a

high level of generality,’ so they ordinarily do not clearly

establish rights.” Isayeva v. Sacramento Sheriff’s Dep’t, 872

F.3d 938, 951 (9th Cir. 2017) (quoting Brosseau v. Haugen,

543 U.S. 194, 199 (2004) (per curiam)). Instead, “[t]he

dispositive question is ‘whether the violative nature of

particular conduct is clearly established.’” Id. at 947

(emphasis in original) (quoting Mullenix, 577 U.S. at 12).

16 SMITH V. AGDEPPA

Applying these directives from the Supreme Court, we

now analyze whether Agdeppa is entitled to qualified

immunity. We conclude that he is.

B

To assess the reasonableness of a particular use of force,

“we balance ‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests’ against ‘the

countervailing government interests at stake.’” Miller v.

Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003) (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). To do so,

“[w]e consider ‘the type and amount of force inflicted’” in

tandem with “‘(1) the severity of the crime at issue, (2)

whether the suspect posed an immediate threat to the safety

of the officers or others, and (3) whether the suspect was

actively resisting arrest or attempting to evade arrest by

flight.’” O’Doan, 991 F.3d at 1037 (quoting Miller, 340

F.3d at 964). Another factor “relevant to the reasonableness

of force” is whether proper warnings were or could have

been given. Isayeva, 872 F.3d at 947. In conducting this

analysis, we do not “second-guess officers’ real-time

decisions from the standpoint of perfect hindsight,” O’Doan,

991 F.3d at 1036, and recognize that “officers are often

forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the

amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 397.

The district court found that factual disputes existed as

to whether the severity of the officers’ injuries was

consistent with a threat of death or serious injury, whether

Dorsey remained standing over Rodriguez until the final shot

was fired, whether other witnesses entered the locker room

SMITH V. AGDEPPA 17

during the struggle, and whether Agdeppa warned Dorsey

before using lethal force.

In some instances, these asserted disputes of fact are not

genuine. For example, Smith argued below that, based on

reported bullet trajectories, an autopsy report “raise[d]

questions as to whether, in fact, Dorsey was standing over

Rodriguez until Agdeppa’s final shot.” This argument—

which the district court noted the plaintiff had raised “for the

first time” at the summary judgment hearing—is based not

on expert analysis, but on the speculation of counsel. See

Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., 289

F.3d 589, 593 n.4 (9th Cir. 2002) (“[T]he arguments and

statements of counsel ‘are not evidence and do not create

issues of material fact capable of defeating an otherwise

valid motion for summary judgment.’” (quoting Smith v.

Mack Trucks, 505 F.2d 1248, 1249 (9th Cir. 1974) (per

curiam))). Indeed, the district court discounted this

argument earlier in its decision, recognizing that “[b]ecause

there is no evidence regarding the sequence of the gunshots,

the court cannot draw any inference as to how Dorsey was

positioned relative to each gunshot.”

Similarly, the district court identified a potential factual

dispute as to whether the BOPC report contradicted

Agdeppa’s assertion that he was several feet away from

Dorsey when he fired the fatal shots, suggesting Agdeppa

may have been much closer, which in turn could call into

question Agdeppa’s credibility. But the district court

acknowledged that “plaintiff does not raise this argument.”

And the BOPC report does not identify any apparent

contradiction on this point. Rather, the BOPC report

specifically credits Agdeppa as having fired “from an

approximate distance of 5–7 feet.” And the report later

concludes that the BOPC’s “investigation revealed that

18 SMITH V. AGDEPPA

[Agdeppa] fired five rounds at [Dorsey], from an

approximate distance of five to seven feet.” The BOPC

report at one point referenced Witness F’s recollection that

Dorsey was holding Agdeppa’s wrist as the first shots were

fired, as Witness F recalled that Dorsey had actually grabbed

Agdeppa’s gun and was attempting to pull it out of its

holster. But we do not rely on that narrative, even as we note

that it would strongly favor Agdeppa because it suggests a

situation even more dire than the one Agdeppa recalled. 3

In any event, even accepting the claimed factual disputes

that the district court identified, Agdeppa is still entitled to

qualified immunity. Stated differently, the asserted factual

disputes do not take away from the core undisputed features

of this case which, at a minimum, confirm that any

constitutional violation was not clearly established. See

Isayeva, 872 F.3d at 945. We do not resolve any factual

disputes, nor are any of the factual disputes that the district

court identified dispositive. We instead consider the

disputed facts in the light most favorable to Smith, alongside

the undisputed facts and the video and audio recordings,

which provide more than sufficient basis for reaching the

legal conclusion that qualified immunity is warranted under

the second step of the qualified immunity analysis.

3

Though it does not suggest he did not witness the events leading up to

the shooting, the BOPC report also states that Witness F was no longer

in the locker room at the moment shots were fired. If true, this would

mean that Witness F’s recollection could not legitimately conflict with

Agdeppa’s account of his positioning at the time of the shooting. And if

the report was incorrect on this point and Witness F’s testimony about

Dorsey grasping for Agdeppa’s gun was credited, then the situation

would have been more dangerous than Agdeppa recalled. It is

immaterial which is correct because either way, this favors Agdeppa.

SMITH V. AGDEPPA 19

The “most important” factor for evaluating Agdeppa’s

use of lethal force is “whether the suspect posed an

immediate threat to the safety of the officers or others.” S.B.

v. Cnty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017)

(quoting George v. Morris, 736 F.3d 829, 838 (9th Cir.

2013)). In this case, it is undisputed that the officers were

placed in a high-stress, rapidly developing situation

involving a person who had reportedly assaulted a gym

security officer and threatened others, and who was violently

resisting the officers and assaulting them in an enclosed area.

See Ames v. King Cnty., 846 F.3d 340, 349 (9th Cir. 2017)

(explaining that courts should “focus [their] inquiry . . . on

the serious—indeed, life-threatening—situation that was

unfolding at the time”). Dorsey weighed 280 pounds and

stood at 6’1”, dominating Agdeppa and Rodriguez in size

and stature. See Isayeva, 872 F.3d at 950 (holding that a

“disparity in size posed obvious risks of physical harm to the

officers”). The recordings from the body cameras confirm

that after officers repeatedly implored Dorsey to stop,

Dorsey violently resisted and assaulted the officers, in a

struggle that grew more intense as it wore on. That is the

same account that the BOPC report conveys.

When the officers were unable to bring Dorsey under

their physical control with their hands and bodies, they both

tried to subdue him with their tasers, but to no avail.

Throughout the encounter, the officers are repeatedly heard

shouting at Dorsey to stop resisting. Just before the fatal

shots were fired, the officers can be heard crying out in pain

as crashing and thrashing noises intensify. And in the BOPC

report, two independent witnesses corroborated the severity

of Dorsey’s attack on the officers. Only after the use of non-

lethal force had proven ineffective, and only after the assault

continued to intensify—with Dorsey having gained control

20 SMITH V. AGDEPPA

of Rodriguez’s taser—did Agdeppa fire the fatal shots. See

Isayeva, 872 F.3d at 952 (holding that officers were entitled

to qualified immunity where non-lethal force “plainly did

not work” and where “the officers were quickly losing in

hand-to-hand combat”). 4

We are not persuaded that the extent of the officers’

injuries changes the calculus here. Although the plaintiff

focuses heavily on this issue (as did the district court), the

officers’ injuries cannot take away from what the bodycam

recordings, Dorsey’s taking of the taser, the BOPC report,

and the other undisputed facts clearly demonstrate. Nothing

about the officers’ account required injuries more severe.

The dissent suggests that the district court described

Rodriguez as “unscathed” following the incident, but the

portion of the district court decision the dissent cites merely

recites this as an argument made by the plaintiff.

Nor, in any event, were the officers’ injuries

insubstantial. Agdeppa sustained a prominent facial

laceration. He received sutures on his nose (as confirmed in

post-incident photographs) and suffered a concussion that

reportedly left him unable to work for months. Rodriguez

reported swelling on her face and jaw, abrasions, and a

pulled muscle. While it is true, as the district court noted,

that neither officer appears to have suffered broken bones or

more serious injuries, that fortuity does not alter the qualified

immunity analysis. No clearly established law requires the

4

The parties debate at length whether our decision in Isayeva, which

reversed the denial of qualified immunity, is on all fours with this case,

and the district court focused its analysis on that precedent. But the

burden is not on the officers to prove they fit perfectly within the facts

of a case granting qualified immunity; the burden is on the plaintiff to

show a violation of a clearly established right in the specific

circumstances at issue. See Isayeva, 872 F.3d at 946.

SMITH V. AGDEPPA 21

officers to have sustained more grievous injuries or worse

before using lethal force in the particular situation they

confronted.

The dissent relies on Newmaker v. City of Fortuna, 842

F.3d 1108 (9th Cir. 2016), and Gonzalez v. City of Anaheim,

747 F.3d 789 (9th Cir. 2014) (en banc), but contrary to the

dissent, these cases did not involve “similar circumstances.”

In Newmaker, two officers provided conflicting testimony

about the circumstances of the shooting and arrived at their

version of events “[o]nly after receiving suggestions from

[an investigator].” 842 F.3d at 1111–13. Even more

significantly, the officers asserted that the suspect was

standing and swinging a police baton at them, but the

autopsy report and video evidence indicated that the man

was shot in the back while lying on the ground. See id. at

1111–16. In Gonzalez, meanwhile, an officer shot a man in

the head at point blank range with no warning and no prior

resort to non-lethal force, and the officer’s account, which

turned on the speed of a moving vehicle, included as to that

critical issue a “combination of facts [that] appear[ed] to be

physically impossible.” 747 F.3d at 794. These cases thus

involved genuine disputes of highly material facts. There

are no analogous disputes here, given the obvious import of

the video and audio recordings and the rest of the record.

Nor do Newmaker and Gonzalez clearly establish the

unlawfulness of Agdeppa’s conduct.

Smith argues that Deorle v. Rutherford, 272 F.3d 1272

(9th Cir. 2001), clearly establishes that Agdeppa violated

Dorsey’s Fourth Amendment rights. In Deorle, officers

were dispatched to Deorle’s residence after he became

suicidal and acted erratically, but Deorle “was physically

compliant,” “generally followed all the officers’

instructions,” and did “not . . . touch, let alone attack,

22 SMITH V. AGDEPPA

anyone.” 272 F.3d at 1276–77. That is obviously not akin

to what happened here. Indeed, as to the Deorle case in

particular, the Supreme Court has already “instructed” us

“not to read [our] decision in that case too broadly in

deciding whether a new set of facts is governed by clearly

established law.” Kisela v. Hughes, 138 S. Ct. 1148, 1154

(2018) (per curiam).

Smith also argues that qualified immunity should be

denied based on the district court decisions in Rose v. Cnty.

of Sacramento, 163 F. Supp. 3d 787 (E.D. Cal. 2016), Berger

v. Spokane Cnty., 2017 WL 579897 (E.D. Wash. Feb. 13,

2017), and Lerma v. City of Nogales, 2014 WL 4954421 (D.

Ariz. Sept. 30, 2014). “We have been somewhat hesitant to

rely on district court decisions” in the second prong of the

qualified immunity analysis because “‘district court

decisions—unlike those from the courts of appeals—do not

necessarily settle constitutional standards.’” Evans v.

Skolnik, 997 F.3d 1060, 1067 (9th Cir. 2021) (quoting

Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)). And in

any event, the district court cases on which Smith relies dealt

with factual circumstances materially distinct from those

before us. Those cases therefore could not place the

constitutional question here beyond debate, even assuming

they had the precedential effect of appellate court decisions.

Finally, this case is “far from the obvious one where

Graham and Garner alone offer a basis for decision.”

Brosseau, 543 U.S. at 199. The “situations where a

constitutional violation is ‘obvious,’ in the absence of any

relevant case law, are ‘rare.’” O’Doan, 991 F.3d at 1044

(quoting Wesby, 138 S. Ct. at 590). And application of the

“obviousness” exception is “especially problematic in the

Fourth-Amendment context” due to the often fact-specific

nature of the varied situations officers confront. Sharp v.

SMITH V. AGDEPPA 23

Cnty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017); see also

O’Doan, 991 F.3d at 1044. There is no basis on these facts

to conclude that the use of force here was obviously

constitutionally excessive, in the absence of any precedent

bearing more closely on the specific circumstances

presented.

C

Smith makes one additional argument that is somewhat

different: she maintains that even if the degree of force here

was permissible based on the threat the officers faced,

Agdeppa was constitutionally required to warn Dorsey

before using such deadly force. For this, Smith relies on our

observation in Harris v. Roderick, 126 F.3d 1189 (9th Cir.

1997), that “whenever practicable, a warning must be given

before deadly force is employed.” Id. at 1201. We made a

similar observation in Gonzalez. There, we stated that “[i]n

general, we have recognized that an officer must give a

warning before using deadly force ‘whenever practicable.’”

Gonzalez, 747 F.3d at 794 (quoting Harris, 126 F.3d at

1201).

These general statements from our prior cases cannot

carry the day here, whether Smith’s argument is a standalone

“warning” claim or part of the broader Graham analysis.

The difficulty we have with Smith’s warning argument is

that it purports to “define clearly established law at a high

level of generality,” which the Supreme Court has

“repeatedly told courts” not to do. Kisela, 138 S. Ct. at 1152

(quoting City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 613

(2015)). The qualified immunity analysis “must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Brosseau, 543 U.S. at 198

(quoting Saucier, 533 U.S. at 201). And Smith has not

24 SMITH V. AGDEPPA

identified any precedent or body of precedent suggesting,

much less confirming, that Agdeppa’s alleged failure to give

a warning before using deadly force was obviously unlawful

in the circumstances Agdeppa faced. See Sharp, 871 F.3d at

911 (noting that plaintiffs “must point to prior case law that

articulates a constitutional rule specific enough to alert these

deputies in this case that their particular conduct was

unlawful” (emphasis in original)).

Our very framing of the “warning” principle itself

presupposes that it is not a one-size-fits-all proposition that

applies in every case or context. We have stated only that

the rule applies “[i]n general,” “‘whenever practicable.’”

Gonzalez, 747 F.3d at 794 (quoting Harris, 126 F.3d at

1201). We have also specifically emphasized that “[t]he

absence of a warning does not necessarily mean that [an

officer’s] use of deadly force was unreasonable.” Id. at 797

(emphasis added). The flexibility built into our “warning”

rule makes it more difficult for that rule, standing alone, to

clearly establish a constitutional violation in any given case.

The origins of our “warning” rule only further confirm

that it typically operates at a level of generality that is too

elevated for qualified immunity purposes. We sourced our

“warning” rule to the Supreme Court’s decision in Garner.

See Harris, 126 F.3d at 1201 (citing Garner, 471 U.S. at 11–

12). But as we have already noted above, Garner set forth

standards that are for the most part pitched at too high a level

of generality to overcome a qualified immunity defense.

See, e.g., Rivas-Villegas, 142 S. Ct. at 8; Brosseau, 543 U.S.

at 199.

The general warning principle we have articulated thus

does not, on its own, invariably indicate when a warning is

required. Existing precedent does not clearly establish in

SMITH V. AGDEPPA 25

every context when such a warning is “practicable,” what

form the warning must take, or how specific it must be. Nor

does existing law clearly establish how the absence of a

warning is to be balanced against the other Graham factors

in the context of a case such as this. That officers may be

constitutionally required to provide a warning before using

deadly force in some cases does not mean it is clearly

established that such a warning was required in this case.

As a result, Smith was required to come forward with

“existing precedent” that “squarely governs the specific facts

at issue.” Kisela, 138 S. Ct. at 1153 (quotation omitted). She

has not done so. The cases Smith identifies all involved

officers who shot suspects almost immediately after

encountering them, where the suspects presented no obvious

threat to officer safety. In Harris, a police sniper in a hilltop

position opened fire on suspects who were exhibiting no

immediate signs of aggression, without even announcing

that police were present. 126 F.3d at 1193–94, 1202–04. In

Gonzalez, the officer shot a man in the head at point blank

range with no warning and no prior resort to non-lethal

deterrents, immediately after the suspect drove away with

the officer in the car at a speed that may have been no faster

than three to seven miles per hour. See 747 F.3d at 794–97.

In Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998

(9th Cir. 2017), the officer shot a thirteen-year-old boy—

who was holding a fake gun and displaying no signs of

aggression—moments after arriving on the scene, “without

knowing if [the boy’s] finger was on the trigger, without

having identified himself as a police officer, and without

ever having warned [the boy] that deadly force would be

used.” Id. at 1010–11. And in S.R. Nehad v. Browder, 929

F.3d 1125 (9th Cir. 2019), which was decided after the

events of this case, the suspect was making no sudden

26 SMITH V. AGDEPPA

movements when an officer fatally shot him from seventeen

feet away, less than five seconds after the officer stepped out

of his car, after making no attempt to use non-lethal force.

Id. at 1130–32, 1137–38.

These cases bear none of the hallmarks of this case, in

which it is undisputed that the officers repeatedly and

unsuccessfully tried to use non-lethal force and were

engaged in a lengthy, violent struggle with a large assailant

in a tightly enclosed area, who was striking them and who

had already gained control of an officer’s taser. Dorsey was

given numerous opportunities—through repeated verbal

commands, attempted handcuffing, and taser deployments—

to stop his attack. By the officers’ words and actions, Dorsey

was warned throughout the encounter. He was given

numerous opportunities to stand down, and he instead

continued to fight. The past precedents we discussed above

would not have caused Agdeppa to believe he was required

to issue a further warning—to call a “time-out”—in the

middle of an increasingly violent altercation.

The dissent’s contention that a jury could find that

Agdeppa gave no deadly force warning assumes that such a

warning was constitutionally required here. As we have

explained, no clearly established law required this in the

circumstances Agdeppa confronted. Nor, as the dissent

suggests, has Agdeppa conceded that it was practicable for

him to give the more extensive warning that the dissent

apparently envisions in the final moments of the escalating

confrontation. Agdeppa is entitled to qualified immunity

because Smith does not identify “a single precedent—much

less a controlling case or robust consensus of cases—finding

a Fourth Amendment violation ‘under similar

circumstances.’” Wesby, 138 S. Ct. at 591 (quoting White v.

Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)).

SMITH V. AGDEPPA 27

* * *

For the foregoing reasons, we reverse the district court’s

decision denying Agdeppa qualified immunity and remand

for proceedings consistent with this opinion.

REVERSED and REMANDED.

CHRISTEN, Circuit Judge, dissenting:

Officer Edward Agdeppa does not dispute that a

reasonable jury could find that he violated Albert Dorsey’s

Fourth Amendment right to be free from excessive force.

This appeal is limited to whether Agdeppa is entitled to

qualified immunity. As the district court recognized,

qualified immunity was improper because there were

significant discrepancies between the officers’ versions of

their efforts to handcuff Dorsey in a locker room and other

record evidence—so much so that a reasonable jury could

reject the officers’ account of the shooting.

Agdeppa claims that he yelled “stop” before shooting,

but no such warning can be heard on either of the officers’

body-cam recordings. The defense cannot argue that it was

not possible for Agdeppa to give Dorsey a deadly force

warning because Agdeppa’s sworn statements admit that he

had time to repeatedly tell Dorsey to “stop” during the four-

minute locker room struggle. The officers tased Dorsey at

least five times during this interval, yet Agdeppa never

claimed to have warned Dorsey that he would switch from

using his taser to using his firearm if Dorsey did not submit

to being handcuffed.

28 SMITH V. AGDEPPA

The existence of Dorsey’s constitutional rights is not in

doubt: he had a right to be free from the use of excessive

force, and police officers are certainly allowed to use deadly

force if they face imminent risk of serious harm. 1 We also

have well-established precedent that an officer must give a

deadly force warning if it is practicable to do so. See, e.g.,

Gonzalez v. City of Anaheim, 747 F.3d 789, 794 (9th Cir.

2014) (en banc); Harris v. Roderick, 126 F.3d 1189, 1201,

1204 (9th Cir. 1997). There is no room for disputing that

Officer Agdeppa was on notice of both of these well-

established constitutional rules. Thus, as the district court

correctly recognized, the only unresolved issues in this case

are factual: (1) whether a reasonable officer in Agdeppa’s

position would have believed that Agdeppa’s partner was in

imminent danger; and (2) whether it was practicable for

Agdeppa to warn Dorsey before using lethal force and he

nevertheless failed to do so.

The majority mistakenly asserts that the district court

denied summary judgment because “at the time of the

incident it was ‘clearly established’ that ‘where the suspect

poses no immediate threat to the officer and no threat to

others, the harm resulting from failing to apprehend him

does not justify the use of deadly force to do so.’”

(alternations accepted). That was the district court’s

recognition of the correct legal standard, not the reason it

denied qualified immunity. The court denied qualified

immunity because “a jury could find that a reasonable officer

in Agdeeppa’s position would not have believed that

1

See Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994)) (“An officer’s

use of deadly force is reasonable only if ‘the officer has probable cause

to believe that the suspect poses a significant threat of death or serious

physical injury to the officer or others.’” (emphasis removed) (quoting

Tennessee v. Garner, 47 U.S. 1, 3 (1985)).

SMITH V. AGDEPPA 29

[Agdeppa’s partner] or anyone else was in imminent danger

and thus, would have understood that his use of deadly force

violated plaintiff’s Fourth Amendment rights.”

Rather than construing disputed facts in the light most

favorable to the non-moving party, the majority usurps 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 not

at imminent risk when Agdeppa shot Dorsey. We lack

interlocutory jurisdiction to review a district court’s order

denying qualified immunity when the decision turns on

factual disputes rather than legal ones. Peck v. Montoya, 51

F.4th 877, 885–86 (9th Cir. 2022). The majority errs by

disregarding this jurisdictional limitation, re-weighing the

evidence, and deciding that the factual disputes identified by

the district court are not material. For all of these reasons, I

respectfully dissent.

I.

Our review of Agdeppa’s interlocutory appeal is limited

to the “purely legal . . . contention that [his] conduct ‘did not

violate the [Constitution], and in any event, did not violate

clearly established law.’” Foster v. City of Indio, 908 F.3d

1204, 1210 (9th Cir. 2018) (quoting Plumhoff v. Rickard,

572 U.S. 765, 773 (2014)). Those portions of the district

court’s order determining questions of “‘evidence

sufficiency,’ i.e., which facts a party may, or may not, be

able to prove at trial . . . [are] not appealable.” Johnson v.

Jones, 515 U.S. 304, 313 (1995). This rule forecloses review

of any “fact-related dispute about the pretrial record, namely,

whether or not the evidence in the pretrial record was

sufficient to show a genuine issue of fact for trial.” Est. of

30 SMITH V. AGDEPPA

Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021)

(quoting Foster, 908 F.3d at 1210) (emphasis in original).

When a district court denies qualified immunity and

“does not explicitly set out the facts that it relied upon, we

undertake a review of the pretrial record only to the extent

necessary to determine what facts the district court, in the

light most favorable to the nonmoving party, likely

assumed.” Est. of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d

998, 1007–08 (9th Cir. 2017) (quoting Watkins v. City of

Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998)).

Deadly force cases present additional, unique challenges

because defendant officers are often the only surviving

eyewitnesses. See, e.g., Gonzalez, 747 F.3d at 794; Scott v.

Henrich, 39 F.3d 912, 915 (9th Cir. 1994). 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.” Gonzalez, 747 F.3d at 795 (quoting Scott, 39 F.3d

at 915); see Newmaker v. City of Fortuna, 842 F.3d 1108,

1116 (9th Cir. 2016) (explaining that summary judgment is

not appropriate in a deadly force case if the plaintiff’s claim

turns on an officer’s credibility, and that credibility is

genuinely in doubt).

The district court knew there was evidence in the record

that contradicted the officers’ statements. The court was

obligated to leave it to the jury to consider that evidence and

to decide whether it was persuaded by the officers’

testimony. See, e.g., Bator v. State of Hawai’i, 39 F.3d 1021,

1026 (9th Cir. 1994) (“At the summary judgment stage, . . .

SMITH V. AGDEPPA 31

the district court may not make credibility determinations or

weigh conflicting evidence.”).

To assemble its narrative of the events leading up to the

locker room shooting, the majority relies heavily on the

officers’ testimony, the audio-only recordings from the

officers’ body-cams, and especially on select portions of an

internal investigation report prepared by the Los Angeles

Board of Police Commissioners. The record also includes

statements from two security guards, an autopsy report, and

photos of the officers’ bruises and cuts. Considered

together, the evidence is inconsistent; some of it supports

Officer Agdeppa’s account and some cannot be reconciled

with his description of the last three minutes before the

shooting. At the summary judgment stage, contested issues

of fact must be construed in plaintiff’s favor.

The majority correctly observes that when “we have

videotape of the events, we ‘view[] the facts in the light

depicted by the videotape.’” 2 But in this case, the video does

not depict the salient facts. There is no dispute about what

happened when the officers initially made contact with

Dorsey: he refused to comply with their instructions to get

dressed, leave the locker room, and submit to being

handcuffed. It is the final three minutes before the shooting

that are in question, and there is no video of that part of the

encounter because the officers’ body-cams were knocked to

the floor. From the audio-only portion of the body-cam

recordings, the majority purports to find that the conflict

escalated and that cries of pain came from the officers rather

than Dorsey. But the audio is inconclusive. Banging sounds

can be heard, along with the officers’ warnings that they will

2

Maj. 5 (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)) (alteration

in original).

32 SMITH V. AGDEPPA

tase Dorsey if he does not comply, followed by the sound of

tasers deploying. The audio recording sheds no light on

where Agdeppa and Dorsey were standing, or who was

doing what in the locker room, just before the shots were

fired. Agdeppa claims that he yelled for Dorsey to “stop”

before escalating from his taser to his gun, but that cannot be

heard on the audio. And contrary to the majority’s

interpretation of the audio-only portion of the recording, the

district court decided that “a rational fact finder could find

that both officers’ body-worn camera footage [is] consistent

with [plaintiff’s] account, rather than Agdeppa’s.”

The majority relies heavily on the Police

Commissioners’ factual finding that Agdeppa reasonably

believed Dorsey posed an imminent threat before Agdeppa

shot, but downplays the Commissioners’ conclusions that:

(1) the officers’ tactics warranted a finding of

Administrative Disapproval; and (2) Agdeppa’s use of

deadly force was unreasonable. The report concluded:

When assessed in light of the series of

substandard tactical decisions leading up to

Officer [Agdeppa]’s [officer-involved

shooting], and the nexus between those

decisions and the circumstances under which

Officer [Agdeppa] found [himself]

compelled to fire [his] weapon, the lethal use

of force by Officer [Agdeppa] was

unreasonable.

(emphasis added).

Tellingly, though the majority relies heavily on it,

Officer Agdeppa objected to the admission of the Police

SMITH V. AGDEPPA 33

Commissioners’ report. 3 This is unsurprising because, at

best, the report is a mixed bag for defendants.

The Commissioners’ report only summarized the

guards’ statements, but its narrative makes clear that one of

the guards told the Police Commissioners’ investigators that

Dorsey was holding Agdeppa’s arm when the shots were

fired. This guard’s account conflicts with Agdeppa’s

description that he was standing six to eight feet away from

Dorsey when he fired, and that Dorsey was still straddling

Rodriguez and pummeling her. The district court recognized

that “if introduced at trial, this evidence would impeach

Agdeppa’s credibility because, according to Agdeppa, he

fired from six to eight feet away as Dorsey stood or hunched

over Rodriguez.” The majority dismisses this contradiction

as not “dispositive.” But the question is whether this factual

dispute is material. See Simmons v. G. Arnett, 47 F.4th 927,

932 (9th Cir. 2022) (“A material fact is one that is needed to

prove (or defend against) a claim, as determined by the

applicable substantive law.”). Where Dorsey was standing

and what he was doing before Agdeppa shot him are

essential to determining whether a reasonable officer would

have believed that Dorsey posed an imminent threat of death

or serious bodily injury to Agdeppa’s partner. The actions

taken in the final few minutes before the shooting will

determine whether Agdeppa is entitled to qualified

immunity.

The majority describes the gym’s security guards as

“independent witnesses,” but a gym employee reported that

Dorsey assaulted one of the guards before the officers

3

The district court overruled Agdeppa’s objection and concluded that

the information in the report could be presented in a form admissible at

trial and as a public record.

34 SMITH V. AGDEPPA

arrived. More important, the majority decides that the

statements the guards gave during the Police

Commissioners’ internal investigation corroborated

Agdeppa’s account, with no mention that some of the

statements attributed to the guards sharply contradicted

Agdeppa’s declaration and the narrative he gave to

investigators.

The majority recites a passage from the report that

recounts one of the security guards recalling that he assisted

in the locker room struggle and that Dorsey grabbed

Agdeppa’s gun but was unable to remove it from its holster,

yet neither of the officers recalled the guards being involved

and the report elsewhere states that the guards had left the

locker room or were in the process of leaving before the

shooting took place. The majority decides that whether one

of the guards accurately described what occurred in the final

moments is “immaterial,” either because the guard could not

impeach Agdeppa’s testimony about the final moments

before the shooting (because the guard was not there), or

because the guard’s narrative suggests that the situation in

the locker room was “even more dire than the one Agdeppa

recalled.” The majority cannot have it both ways. We are

not permitted to ignore the report’s conclusion that Officer

Agdeppa’s use of lethal force was unreasonable, nor ignore

that the guard provided statements that squarely contradicted

Agdeppa’s account.

In sum, the security guards’ descriptions of the encounter

differed from the officers’ accounts in several respects,

including the number of shots and volleys that Agdeppa

fired, whether Dorsey reached for Agdeppa’s firearm,

whether Dorsey was holding Agdeppa’s wrist when

Agdeppa fired, and whether Dorsey remained hunched over

Rodriguez when he was shot. To be sure, the guards

SMITH V. AGDEPPA 35

described a struggle between Dorsey and the officers, but

given the conflicting record, it is for the fact finder to decide

whether the officers were at imminent risk of harm prior to

the shooting.

The Commissioners’ report incorporated the framework

for evaluating excessive force cases set out in Graham v.

Connor, 490 U.S. 386 (1989), along with Departmental

policies. 4 The most important Graham factor is whether the

suspect posed an imminent threat to the safety of the officers

or others. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.

2005) (en banc) (quoting Chew v. Gates, 27 F.3d 1432, 1441

(9th Cir.1994)).

Mapping the Graham factors onto the facts of this case:

Dorsey resisted arrest, but nothing suggests that he had

committed a serious crime before the officers physically

engaged with him and tried to handcuff him; there was no

danger Dorsey was concealing a weapon because he was not

wearing any clothing; and Dorsey did not present a flight

risk. Turning to the threat that Dorsey posed, the

4

The Commissioners quoted a familiar passage from Graham:

The reasonableness of a particular use of force must be

judged from the perspective of a reasonable officer on

the scene, rather that with the 20/20 vision of

hindsight. [. . .] The calculus of reasonableness must

embody allowance for the fact that police officers are

often forced to make split-second judgments—in

circumstances that are tense, uncertain and rapidly

evolving—about the amount of force that is necessary

in a particular situation.

(quoting Graham, 490 U.S. at 396–97).

36 SMITH V. AGDEPPA

Commissioners concluded that Agdeppa’s use of deadly

force was unreasonable because:

Once the officers had initiated physical

contact with [Dorsey], it was readily apparent

that [Dorsey’s] greater size and strength, in

concert with his noncompliant behavior,

would make it difficult, if not impossible, for

the officers to accomplish their goal of

handcuffing him. At that time during the

incident, there was no exigency that required

the officers to stay physically engaged with

[Dorsey]. Nevertheless, the officers did not

take the opportunity to disengage from their

physical struggle and redeploy in order to

allow for the assembly of sufficient

resources. Rather, the officers stayed

engaged as the situation continued to

escalate, culminating in injurious assaults on

both officers and the ultimate use of deadly

force by Officer [Agdeppa].

(emphasis added).

The record also contains physical evidence that conflicts

with Agdeppa’s statements and declaration regarding the

risk Dorsey presented to the officers. As explained,

Agdeppa argued that it was necessary to shoot because

Dorsey had “inflicted serious injuries on both officers” and

he “was striking Rodriguez with his fist while turning her

Taser on her.” The order denying summary judgment

observed that post-incident photographs showed an

“unscathed” Rodriguez and that her medical records

reflected only swelling, abrasions, and a pulled muscle—

SMITH V. AGDEPPA 37

minor injuries very different from the type one would expect

if Dorsey had been pummeling Rodriguez such that “the next

punch would likely kill her,” as Agdeppa had described. The

district court rejected Agdeppa’s arguments that bruising

and additional injuries were not visible in the photos because

they constituted impermissible attacks on “the weight of the

evidence, which [was] not for the [c]ourt to consider on

summary judgment.” The majority, by contrast, weighs the

photos against other evidence and decides that the photos are

unpersuasive.

The autopsy report’s description of the bullet trajectories

also undermines Agdeppa’s account that Dorsey was

standing over Rodriguez as she lay on the floor, that he was

straddling and punching her, and that Agdeppa feared the

next blow might kill his partner. This report states that

several bullets traveled through Dorsey’s body from right to

left in a downward direction, and that one of the bullets

traveled through Dorsey’s stomach from left to right in an

upward direction. The bullet trajectories cannot be squared

with Agdeppa’s testimony that, “Dorsey remained in the

same position . . . as each shot was fired,” and that

immediately after the final shot, “Dorsey fell backward and

off Rodriguez and did not move.” 5

The majority improperly weighs the conflicting evidence

(e.g., finding that the officers’ injuries were not

“insubstantial”); assesses the sufficiency of the evidence

5

My colleagues mistakenly argue that the district court “discounted this

argument earlier in its decision.” In fact, the district court observed only

that it could not make a finding “as to how Dorsey was positioned

relative to each gunshot.” The district court recognized that a fact finder

could rely upon inconsistencies between Agdeppa’s description and the

physical evidence to impeach Agdeppa’s credibility.

38 SMITH V. AGDEPPA

(e.g., characterizing the bullet trajectory evidence as

“speculative”); and makes credibility determinations (e.g.,

concluding that security guards’ statements “corroborate the

officers’ descriptions” even though it is not clear the guards

were present). Finally, it must be noted that the majority

relies on Hopson v. Alexander for the proposition that “we

may consider facts offered by the defendant that are

‘uncontradicted by any evidence in the record.’” 71 F.4th

692, 697 (9th Cir. 2023) (quoting Wilkinson v. Torres, 610

F.3d 546, 551 (9th Cir. 2010)). By invoking Hopson, the

majority forgets that binding en banc authority requires that

we take special care in fatality shooting cases 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.” Gonzalez, 747 F.3d at 795 (quoting

Scott, 39 F.3d 915). The quote from Hopson is inapt because

that case did not involve a fatality. 6 We are bound by our en

banc decision in Gonzalez.

Agdeppa will no doubt prevail if a fact finder is

ultimately persuaded by his description of the way the

struggle in the locker room unfolded. But on interlocutory

appeal, we are not permitted to review “whether or not the

evidence in the pretrial record was sufficient to show a

genuine issue of fact for trial.” Est. of Anderson, 985 F.3d

at 732; see Peck, 51 F.4th at 876 (declining to review a

district court’s determination “that there were genuine

disputes of fact about whether [the suspect] posed an

immediate threat”). We should affirm the district court’s

order denying qualified immunity.

6

Wilkinson, on which Hopson relied, did involve a fatality, but it pre-

dates Gonzalez.

SMITH V. AGDEPPA 39

II.

Under similar circumstances, we have reversed orders

granting qualified immunity. In Newmaker, we rejected a

request for qualified immunity based on evidence that

contradicted the officers’ account of a fatal shooting. 842

F.3d at 1110. There, as here, the crux of the case turned on

what the jury would decide about what happened in the

moments before the shooting. The lead-up to the Newmaker

shooting mirrors this case in pertinent respects: Newmaker

was nearly naked when he was shot, he refused to comply

with officer instructions, and he physically resisted officers

after they tased him in both “drive” stun and “dart” modes.

Id. at 1111–12. The officer who shot and killed Newmaker

alleged that he had grabbed another officer’s baton, stood up,

and swung it “violently” and “aggressively” at the officer’s

head. Id. at 1112. The defendant claimed that he warned

Newmaker to drop the baton before shooting him from a

standing position. Id. According to the defendant officer,

Newmaker was also standing, but he shot Newmaker a

second time after he fell to the ground because Newmaker

rose and began swinging the baton again. Id.

We reversed the district court’s order granting summary

judgment on qualified immunity grounds because the

evidence conflicted with the officer’s testimony. First, the

officer had previously described shooting Newmaker twice

in quick succession, failing to mention that Newmaker fell

and got back up. Id. at 1113, 1116. Second, the autopsy

report indicated that Newmaker was shot while he was

bending over and low to the ground, not while he was

standing. Id. at 1114–15, 1116. Third, though a car

dashboard camera captured only bits and pieces of the

scuffle and shooting, there was “nothing clearly visible in

[Newmaker’s] hands” when he was shot, and contrary to the

40 SMITH V. AGDEPPA

officer’s statement, it appeared that Newmaker was shot

after he fell to the ground. Id. at 1115. We concluded that

summary judgment was inappropriate because it was

disputed “when, why, and how [the officer] shot

Newmaker.” Id. at 1117.

The majority seems to reason that because Dorsey was

larger than the officers, was resisting arrest, and presented

some risk to officer safety, Agdeppa is entitled to qualified

immunity. This overlooks that all resisting suspects pose

some risk to officer safety, and yet our precedent provides

that officers may use deadly force only if they have probable

cause to believe a suspect poses an imminent risk of death or

serious physical injury to the officer or others. See, e.g., id.

at 1116. My colleagues decide that Dorsey’s indisputably

larger size and the actions he took to resist render the

disputed facts not “dispositive.” But qualified immunity

depends on what happened in the moments before Agdeppa

shot Dorsey—and whether a reasonable officer would have

believed that Dorsey posed an imminent threat to the

officers. See Simmons, 47 F.4th at 932 (defining “material

fact”).

Gonzalez is also instructive. There, physical evidence

conflicted with the officers’ description of events preceding

a police-officer fatality shooting. 747 F.3d at 791. The only

testimony describing the actions leading up to Gonzalez’s

death came from the officers who stopped Gonzalez for a

traffic violation. Id. at 792. They recalled that Gonzalez

refused to exit his van or turn off its engine and that the

officers, one standing on each side of the vehicle, reached in

through the van’s driver-side and passenger windows to

open the van’s doors. Id. They later testified that it appeared

Gonzalez had something in his hands and that they struggled

to restrain him as they were leaning in through the van’s

SMITH V. AGDEPPA 41

windows. Id. The officers recounted that Gonzalez

managed to shift the van into “drive” and that he “stomped”

on the accelerator while one of the officers was still leaning

into the van. Id. at 792–93 (alteration accepted). That

officer stated that he yelled at Gonzalez to stop and then shot

him in the head from less than six inches away, killing him.

Id. at 793.

Our en banc court reasoned that the key issues were

whether a jury could decide that an objectively reasonable

officer would have perceived an immediate threat of death

or serious bodily injury, and whether a jury could decide it

was practicable for the defendants to have given Gonzalez a

deadly force warning. Id. at 794. We reversed the district

court’s order granting summary judgment because the

officers’ statements could not be reconciled with other

evidence in the record. By their mutual account, the van

accelerated to fifty miles per hour after Gonzalez stomped

on the accelerator and they both feared for the safety of the

officer who had leaned into the van’s passenger’s side

window and remained in the accelerating van. Id. at 794.

But the defendants also said that the van traveled just fifty

feet in five to ten seconds. If that had been the case, a jury

could decide that the van was not traveling at a high speed

and that it was practicable to provide a warning before using

deadly force. Id. at 797 (citing Deorle v. Rutherford, 272

F.3d 1272, 1283–84 (9th Cir. 2001) (“Shooting a person who

is making a disturbance because he walks in the direction of

an officer at a steady gait with a can or bottle in his hand is

clearly not objectively reasonable [where] . . . the officer

neither orders the individual to stop nor drop the can or

bottle . . . .”)).

Quite unlike the majority’s cramped view that “existing

precedent does not clearly establish in every context

42 SMITH V. AGDEPPA

when . . . a [deadly force] warning is ‘practicable,’” our

en banc court in Gonzalez reversed the district court’s order

granting summary judgment in favor of the officers because

the evidence would have allowed jurors to decide that a

deadly force warning had been practicable.

III.

Application of our rule requiring a deadly force warning

is particularly straightforward in this case because Officer

Agdeppa never claimed that it was not practicable to give a

deadly force warning. Agdeppa’s brief to this court recycles

a bald assertion that appeared for the first time in his

summary judgment brief, that he “warned [Dorsey] that he

would shoot.” That assertion was flatly contradicted by

Agdeppa’s own pretrial statements, in which he consistently

said that he only told Dorsey to “stop.” Because counsel’s

argument was not evidence, see, e.g., Gaines v. Relf, 53 U.S.

472, 490 (1851), the district court properly ignored it.

When asked at his deposition if he warned Dorsey before

using deadly force, Agdeppa said, “I know I said

something. . . . I yelled something.” And in his sworn

declaration submitted in support of his summary judgment

motion and in the statement of undisputed material facts

filed in the trial court, Agdeppa alleged that, before shooting,

he “gave Dorsey a verbal warning, stating words to the effect

that Dorsey needed to stop.” The majority stops short of

deciding that no such warning can be heard on the audio

recording. It instead decides that the audio is “chaotic.” But

if we view the facts in the light most favorable to plaintiff,

no warning was given. And we are not free to disregard

Agdeppa’s sworn account: whatever happened in the locker

room after the body-cams were knocked off, Agdeppa has

been consistent in recounting that he yelled “stop” several

SMITH V. AGDEPPA 43

times before using his taser, and that he yelled “stop” before

using his gun. Agdeppa’s declaration is a sworn statement

by a party opponent and there is no conflicting evidence on

this point. Cf. Fed. R. Evid. 801(d)(2)(A).

Setting aside for the moment that no warning can be

heard on the audio before the shooting starts, Agdeppa never

claimed that he warned Dorsey he was going to switch from

using his taser to using his firearm if Dorsey did not stop

resisting. This is critical because the officers had repeatedly

warned Dorsey that they would tase him if he did not stop

resisting—and followed up by tasing Dorsey at least five

times. Another command to “stop” would have done

nothing to warn Dorsey that Agdeppa was preparing to ramp

up to deadly force. See, e.g., Harris, 126 F.3d at 1204

(“Whenever practicable, a warning must be given so that the

suspect may end his resistance.” (emphasis added)); see also

S.R. Nehad v. Browder, 929 F.3d 1125, 1138 (9th Cir. 2019)

(“Even assuming Browder did command Nehad to ‘Stop,

drop it,’ there is no dispute that Browder never warned

Nehad that a failure to comply would result in the use of

force, let alone deadly force.”). 7 On this record, a reasonable

jury could decide that it was practicable for Agdeppa to give

Dorsey a deadly force warning, and that he did not provide

one.

The majority argues that plaintiff failed to identify any

precedent establishing that Agdeppa’s failure to give a

deadly force warning was “obviously unlawful in the

circumstances Agdeppa faced,” because Agdeppa posed a

7

Browder was published in 2019, after the events at issue in this case,

but we concluded the officer’s Fourth Amendment violation in that case

violated law that was clearly established as of April 2015. See Browder,

929 F.3d at 1130, 1141.

44 SMITH V. AGDEPPA

risk of danger to the officers. This is wrong for two reasons:

(1) it repeats the error of assuming that the officers faced an

imminent risk of serious injury based on conflicting

evidence; and (2) it conflates the practicability of providing

a deadly force warning—which depends on whether the risk

of danger was imminent—with whether there was a risk of

danger. Our en banc court’s decision in Gonzalez clearly

demonstrates these are two different inquiries.

Like the officers in this case, the officers in Gonzalez

described an escalating and violent struggle to restrain a

suspect. They recounted that Gonzalez accelerated the van

he was driving while one officer was trapped inside. We

concluded that factual discrepancies in Gonzalez would

allow a reasonable jury to find that there was time to give a

deadly force warning, despite the danger posed by the

moving vehicle. Here, after hearing the conflicting evidence

and deciding what happened in the locker room, a jury could

find that Agdeppa had an opportunity to give Dorsey a

deadly force warning, and failed to do so. Agdeppa provided

several warnings before using intermediate force. Accepting

Agdeppa’s uncontested statements on this point, Agdeppa

did not warn Dorsey that he was escalating to the use of his

firearm. 8

IV.

We are not permitted to accept Agdeppa’s

characterization of the struggle in the locker room because

physical evidence and witness statements conflict with it.

8

The majority also argues that our precedent did not “clearly establish”

“what form the warning must take, or how specific it must be.” We have

never required that level of specificity as a condition of applying this

precedent. Nor is the issue implicated here, where a jury could find that

Agdeppa gave no deadly force warning at all.

SMITH V. AGDEPPA 45

See Peck, 51 F.4th at 875–76; Newmaker, 842 F.3d at 1116;

Gonzalez, 747 F.3d at 791. The district court correctly

recognized that a reasonable jury could conclude that

Agdeppa did not provide a deadly force warning, and that it

was practicable to do so. For these reasons, we should

affirm the district court’s order denying qualified immunity.

Accordingly, I respectfully dissent.