Opposition Brief — Paulette Smith, Individually and as Successor in Interest to Albert Dorsey, Deceased, Petitioner v. Edward Agdeppa

No. 24-15

In the

Supreme Court of the United States

PAULETTE SMITH, INDIVIDUALLY

AND AS SUCCESSOR IN INTEREST TO

ALBERT DORSEY, DECEASED,

Petitioner,

v.

EDWARD AGDEPPA,

Respondent.

On Petition for A Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF IN OPPOSITION

Kevin E. Gilbert*

Carolyn M. Aguilar

Orbach Huff & Henderson LLP

6200 Stoneridge Mall Road, Suite 225

Pleasanton, CA 94588

(510) 999-7908

kgilbert@ohhlegal.com

* Counsel of Record

Counsel for Respondent

August 8, 2024

130269

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

I.

The Incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Relevant Procedural History . . . . . . . . . . . . . . . . 6

A. The District Court’s Order Denying

Qualified Immunity . . . . . . . . . . . . . . . . . . . . 6

B. Pl a i nt i f f ’s Ev idenc e Wa s P u r e

Specu lat ion a nd Insu f f icient t o

Defeat Summary Judgment . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . 13

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . 14

I.

The Opinion is Consistent with Circuit

and Supreme Court Precedent . . . . . . . . . . . . . . 14

A. The Ninth Circuit Correctly Maintained

Jurisdiction Over the Appeal . . . . . . . . . . . 14

ii

Table of Contents

Page

B. The Ninth Circuit Correctly Applied

Summary Judgment Standards . . . . . . . . . 19

C. The Law is Not Clearly Established

When a Warning of Lethal Force

Must Be Given . . . . . . . . . . . . . . . . . . . . . . . .22

II. Adopting Plainti ff ’s Position Would

Conflict With Established Precedent . . . . . . . . 26

III. Adopting Plainti ff ’s Position Would

Create Dangerous Circumstances for

Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Anderson v. Liberty Lobby Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 21, 34

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . 24, 28, 33

Atkinson v. Godfrey,

100 F.4th 498 (4th Cir. 2024) . . . . . . . . . . . . . . . . . . . 17

Bailey v. Preston,

702 Fed.App’x 210 (5th Cir. 2017) . . . . . . . . . . . . . . . 18

Barcamerica Int’l USA Tr. v.

Tyfield Importers, Inc.,

289 F.3d 589 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 12

Behrens v. Pelletier,

516 U.S. 299 (1996) . . . . . . . . . . . . . . . . . . . . . 13, 15, 20

Billington v. Smith,

292 F.3d 1177 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . 27

Bowles v. City of Porterville,

571 F. App’x 538 (9th Cir. 2014) . . . . . . . . . . . . . . . . . 32

Brown v. Elliott,

876 F.3d 637 (4th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 17

iv

Cited Authorities

Page

Burnett v. Griffith,

33 F.4th 907 (6th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 18

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

City & Cnty of San Francisco v. Sheehan,

575 U.S. 613 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

County of Los Angeles v. Mendez,

581 U.S. 420 (2017) . . . . . . . . . . . . . . . . . . 13, 27, 29, 30

Cox v. Glanz,

800 F.3d 1231 (10th Cir. 2015) . . . . . . . . . . . . . . . . . . 18

Davis v. Scherer,

468 U.S. 183 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Deorle v. Rutherford,

272 F.3d 1272 (9th Cir. 2001) . . . . . . . . . . . . 1, 8, 26, 27

Dist. of Columbia v. Wesby,

138 S. Ct. 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Elder v. Holloway,

510 U.S. 510 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Estate of Larsen v. Murr,

511 F.3d 1255 (10th Cir. 2008) . . . . . . . . . . . . . . . . . . 32

v

Cited Authorities

Page

Findlay v. Lendermon,

722 F.3d 895 (7th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 18

Gonzalez v. City of Anaheim,

747 F.3d 789 (9th Cir. 2014) . . . . . . . . . . . . . . . . . 22, 25

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . 21, 23, 29, 31

Gregory v. Cnty of Maui,

523 F.3d 1103 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . 11

Hagans v. Franklin Cnty Sheriff’s Ofc.,

695 F.3d 505 (6th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 18

Harris v. Roderick,

126 F.3d 1189 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . 22

Harris v. Serpas,

745 F.3d 767 (5th Cir. 2014) . . . . . . . . . . . . . . 22, 23, 32

Hart v. City of Redwood City,

99 F.4th 543 (9th Cir. 2024) . . . . . . . . . . . . . . . . . 11, 19

Hunter v. Bryant,

502 U.S. 224 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Isayeva v. Sacramento Sheriff’s Dep’t,

872 F.3d 938 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 27

vi

Cited Authorities

Page

Jeffers v. Gomez,

267 F.3d 895 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 20

Kisela v. Hughes,

138 S. Ct. 1148 (2018) . . . . . . . . . . . . . . . . . . . 25, 28, 29

Knox v. Southwest Airlines,

124 F.3d 1103 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . 15

Krause v. County of Mohave,

459 F. Supp. 1258 (D. Az. 2020) . . . . . . . . . . . . . . . . . 10

Lopez v. Sheriff of Cook Cnty,

993 F.3d 981 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . . . 18

Malley v. Briggs,

475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 24, 33

Matsushita Electrical Industry Co., Ltd. v.

Zenith Radio Corp.,

475 U.S. 574 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Mitchell v. Forsyth,

472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Morgan v. Robinson,

920 F.3d 521 (8th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 18

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 18

vii

Cited Authorities

Page

Mullenix v. Luna,

577 U.S. 7 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Newmaker v. City of Fortuna,

842 F.3d 1108 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . . 25

Pearson v. Callahan,

555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . 13, 16, 17, 19

Plumhoff v. Rickard,

572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 15, 28

Quinn v. Young,

780 F.3d 998 (10th Cir. 2015) . . . . . . . . . . . . . . . . . . . 18

Reichle v. Howards,

566 U.S. 658 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Reynolds v. Cnty of San Diego,

84 F.3d 1162 (9th Cir. 1996),

overruled on other grounds by

Acri v. Varian Assoc., Inc.,

114 F.3d 999 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 11

Rivas-Villegas v. Cortesluna,

142 S. Ct. 4 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Saucier v. Katz,

533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 16, 19

viii

Cited Authorities

Page

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . . . . . . . . . . 13, 21, 34

T. W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Association,

809 F.2d 626 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 21

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . 1, 8, 22, 23, 26, 27

Thurmond v. Andrews,

972 F.3d 1007 (8th Cir. 2020) . . . . . . . . . . . . . . . . . . . 18

Tolan v. Cotton,

572 U.S. 650 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Lanier,

520 U.S. 259 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Scheffer,

523 U.S. 303 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

White v. Pauly,

137 S. Ct. 548 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. IV . . . . . . . . . . . . . . . 7, 29, 30, 31, 32

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ix

Cited Authorities

Page

Fed. R. Civ. P. 56(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1

INTRODUCTION

The Petition fails to present any compelling reason

for this Court’s review. Petitioner Paulette Smith

(“Plaintiff”) creates a fallacy by grossly misrepresenting

the factual record and applicable legal standards in

hopes of fabricating a conflict in the Opinion that neither

exists, nor warrants review. The Ninth Circuit’s Opinion

(“Opinion”) was firmly grounded in existing Supreme

Court precedent and is a well-reasoned decision that

should not be disturbed. In fact, the Opinion relies heavily

on Supreme Court precedent for virtually every issue,

providing an unwavering foundation for the Ninth Circuit’s

conclusions. Yet, Plaintiff invites the Court to deviate from

that precedent and instead adopt flawed legal reasoning.

Accordingly, the Petition should be denied.

Plaintiff, the mother of decedent Albert Dorsey

(“Dorsey”), is prosecuting this action against Respondent/

Defendant Officer Edward Agdeppa (“Agdeppa”),

alleging claims of excessive force under 42 U.S.C. § 1983

for Agdeppa’s use of force in protecting from a brutal

beating at Dorsey’s hands, facts wholly omitted from

Plaintiff’s Petition. The District Court for the Central

District of California (“District Court”) denied Officer

Agdeppa’s motion for summary judgment on the issue

of qualified immunity (“Order”), relying on dissimilar

cases, including Tennessee v. Garner, 471 U.S. 1 (1985)

and Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001),

finding that Plaintiff’s speculative evidence created issues

of material fact and precluded qualified immunity. The

Order flatly conflicted with both Circuit and Supreme

Court precedent and did exactly what this Court has

repeatedly admonished courts to avoid: relying on a high

2

level of generality in determining whether the law was

“clearly established,” sufficient to deny qualified immunity.

On August 30, 2023, the Ninth Circuit Court of

Appeals reversed the District Court, correctly applying

long-standing precedent, recognizing that no thenexisting case provided notice to Agdeppa that his actions

would be unlawful, thereby granting qualified immunity.

The Ninth Circuit’s Opinion also correctly evaluated and

followed existing precedent when finding that appellate

jurisdiction was appropriate, as well as confirming the

relevant standards for adjudicating summary judgment

motions, concluding that the perceived issues of fact

as relied upon by Plaintiff and the District Court were

not material and that Plaintiff’s proffered evidence was

speculative and insufficient to prevent summary judgment.

The Opinion does not warrant review, nor is it

inconsistent with existing precedent.

STATEMENT OF THE CASE

Plaintiff’s statement is both incomplete and misleading,

including omitting key undisputed facts. Pursuant thereto,

Agdeppa submits this abridged statement, which focuses

on the pertinent facts as are relevant to Plaintiff’s Petition,

as necessary for a complete and accurate understanding

of the legal issues.

I.

The Incident

On October 29, 2018, Officers Agdeppa and Rodriguez

(collectively “Officers”) responded to calls that an

individual (later identified as Dorsey) was refusing to

3

leave a gym after assaulting and threatening other gym

members and staff. 3-ER-362-363 at ¶¶ 2, 5; 3-ER-371-372

at ¶¶ 2, 5.1 Upon arrival, the Officers both activated their

body-worn cameras. As a result, the majority of the facts

discussed herein are undisputed.

Upon entering the locker room, the Officers observed

Dorsey standing naked with a towel draped over his

shoulder. 3-ER-363 at ¶ 6; 3-ER-372 at ¶ 7; 4-ER-439,

441. The Officers requested Dorsey put on his clothes.

3-ER-363 at ¶¶ 6-7; 3-ER-372 at ¶¶ 7-8; 4-ER-439, 441.

Dorsey did not make any effort to comply with the

Officers’ directions. Id. The Officers then attempted,

without success, to gain Dorsey’s voluntary compliance

through verbal tactics, including varying the audible

level of their voices while using more forceful language.

3-ER-363 at ¶ 8; 3-ER-372 at ¶ 9; see also, 4-ER-439, 441.

Unfortunately, Dorsey still refused to comply, ignoring

them while raising the music on his cell phone, dancing

naked, and telling both Officers to shut up while flipping

them off. Id.

Given Dorsey’s continued refusal to comply, the

Officers attempted to detain him by going “hands on.”

3-ER-363-364 at ¶ 9; 3-ER-372-373 at ¶ 10; see also,

4-ER-439, 441. The Officers approached Dorsey and

grasped him by the arms. However, Dorsey resisted by

1. Pursuant to Supreme Court Rule 12, subsection 7,

Agdeppa’s citations are to the record below. Plaintiff attached

an Appendix to her Petition, sequentially numbering the

pages “App.1” through “App.115.” Where included in Plaintiff’s

Appendix, the record citation has been modified to reference to

the specific Appendix page (i.e. “App.20” would cite to Plaintiff’s

Appendix at page 20.)

4

tensing up, which prevented the Officers from controlling

or handcuffing him. Id. The Officers continued attempting

various tactical maneuvers to secure Dorsey’s hands,

including trying to pin him to the wall, switching sides,

using arm, finger and wrist locks, bracing maneuvers,

and using a double-cuff procedure while continually

admonishing Dorsey to stop resisting. 3-ER-363 at ¶ 6;

3-ER-372 at ¶ 7; see also, 4-ER-439, 441. Unfortunately,

none of those methods were effective. Id. As the struggle

progressed, the Officers’ body-worn cameras fell off onto

the floor. 3-ER-364 at ¶ 14; 3-ER-373 at ¶ 15; 4-ER-439,

441. Although the cameras no longer captured a video

of the interaction, the audio continued to record. Id.

Despite speculation by Plaintiff, the remaining facts are

undisputed.

Dorsey continued to resist the Officers’ attempts

to handcuff him, while becoming increasingly more

combative, even striking Rodriguez in the face. 3-ER-365

at ¶ 17; 3-ER-374 at ¶ 17. The Officers then attempted to

utilize their tasers on Dorsey, further warning him to the

effect of “I’m going to tase you if you don’t stop resisting.

Relax!” 3-ER-365 at ¶ 18; 4-ER-439, 441. Despite those

warnings, Dorsey continued to resist and became even

more combative, resulting in the Officers activating their

tasers. Id.; 3-ER-374 at ¶ 17. However, the tasers were

ineffective. Id.; 3-ER-365 at ¶ 18.

Instead, Dorsey began punching the Officers, while a

handcuff dangled from his wrist. Id.; 3-ER-374 at ¶¶ 1719. Dorsey struck Agdeppa multiple times in the face and

head area. 3-ER-365-366 at ¶¶ 21-22; 3-ER-374 at ¶ 18;

4-ER-439, 441. The force of Dorsey’s punches knocked

Agdeppa backwards into a wall of lockers, which caused

him to become disoriented and drop his taser. Id.

5

In response to Dorsey’s attack on Agdeppa, Rodriguez

again activated her taser, which still had no effect. Instead,

it resulted in Dorsey attacking her, including punching her

in the face, knocking her to the ground, then continuing

to brutally punch her, while stripping Rodriguez of her

taser and attempting to press it against her face, while

simultaneously punching her with the other hand. 3-ER374 at ¶¶ 18-19; 4-ER-439, 441.

With Rodriguez lying on the floor, Dorsey hovered

over her for approximately 30-40 seconds while continuing

to beat her about the head and face. 3-ER-374 at ¶¶ 2021; 4-ER-439, 441. Due to Dorsey’s size and position

straddling over Rodriguez, she was unable to break free

or defend herself, instead believing that Dorsey was about

to kill her. 3-ER-374 at ¶ 21.

As Agdeppa began to refocus his vision, he observed

Dorsey straddling Rodriguez while viciously punching

her repeatedly in the face. 3-ER-366 at ¶¶ 23-25. Based

upon Dorsey’s actions, his refusal to comply, his significant

size and strength, his position over Rodriguez, and the

beating that he was giving Rodriguez, Agdeppa believed

that Dorsey was attempting to kill his partner. Id.

In order to protect both his and his partner’s life,

Agdeppa unholstered and drew his weapon followed by

giving Dorsey a verbal warning, words to the effect that

Dorsey needed to stop. 3-ER-366-367 at ¶¶ 26-27; 3-ER375 at ¶¶ 22-23; 4-ER-439, 441. Yet, Dorsey continued.

Id. To save Rodriguez’s life, Agdeppa fired five shots at

Dorsey, which immediately stopped Dorsey’s attack. Id.

6

II. Relevant Procedural History

A.

The District Court’s Order Denying Qualified

Immunity

Agdeppa’s motion for summary judgment was heard

on October 19, 2020. 2-ER-22-39. On November 6, 2020,

the District Court issued its order, denying the motion,

finding that a genuine dispute of fact existed as to whether

Dorsey posed an immediate threat to the Officers.

App.112, 115. The District Court based this finding on

the following facts:

1) that Rodriguez did not suffer any

broken bones, did not miss work and appears

“unscathed in her post-incident photograph”

(App.109),

2) that A gdeppa’s broken nose wa s

unsupported (App.109),

3) that Plaintiff ’s interpretation of a

statement from the autopsy report and last

minute verbal arguments at the hearing

questioning the trajectory of one of the bullets,

casts doubt on whether Agdeppa “remained

standing over Rodriguez until the final shot”

(App.109), and

4) that non-sworn witness statements,

which were interpreted and summarized in

the post-incident report conducted by the City

of Los Angeles’ Board of Police Commissioner

(“BOPC”) had a different perspective of the

7

incident and Agdeppa’s proximity to Dorsey

when he fired his first shots (App.110).

Not w ithstanding that these assumptions are

unsupported by the evidence, over Agdeppa’s objections,

and directly contradictory to the BOPC’s conclusion that

Dorsey presented an imminent threat, the District Court

ruled that “a jury could find that a reasonable officer in

Agdeppa’s position would not have believed that Rodriguez

or anyone else was in imminent danger and, thus, would

have understood that his use of deadly force violated

plaintiff’s [sic [Dorsey’s]] Fourth Amendment rights” and

denied qualified immunity. App.114.

To be clear, there is absolutely no dispute that Dorsey

was fighting the Officers when lethal force was used. 3-ER363-366, 372-375; 2-ER-135-136 (“The BOPC noted that

Officer A used deadly force at a time when, as supported

by the accounts of two independent witnesses, he/she and

Officer B were being assaulted by the Subject. At that

time, the violence of the Subject’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.”). As such, there was no logical basis for

the District Court’s conclusion that Dorsey did not pose

an immediate threat to the Officers.

Plaintiff merely challenged the severity of the

Officers’ injuries and the precise location that Agdeppa

may have been standing when he fired each shot, but not

whether a fight occurred. In fact, the District Court stated

that Plaintiff’s evidence “largely conforms to Agdeppa’s

account” and that Dorsey was aggressively and violently

8

fighting the Officers. App.105; see also, 3-ER-167 at 105:19106:18; 3-ER-204 at 33:15-24; 2-ER-135-136.

The District Court, relying on Tennessee v. Garner

and Deorle v. Rutherford, without any analysis or

comparison of the facts in those cases, or any case

precedent that would have put Agdeppa on notice that

his actions could have been unlawful – and despite the

overwhelming evidence of the existence of a violent fight

between the Officers and Dorsey – found that “[a]t the

time of 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.’” App.114.

Agdeppa timely filed his notice of appeal on November

25, 2020, challenging the denial of qualified immunity.

3-ER-404-405.

B. Plaintiff’s Evidence Was Pure Speculation and

Insufficient to Defeat Summary Judgment

On August 30, 2023, after initially upholding the

District Court’s flawed analysis and after Agdeppa sought

rehearing en banc, the Ninth Circuit reversed both the

District Court and its earlier opinion. In reversing, the

Circuit found that numerous facts raised by Plaintiff

were either not material to the qualified immunity

analysis, or that the evidence supporting such allegedly

disputed issues was purely speculative. Pertinent here,

the Ninth Circuit concluded that all of the disputes raised

by Plaintiff failed to refute the most important fact, i.e.

that Dorsey posed an imminent threat to the Officers. In

relevant part, the Opinion concluded “the fact that the

9

violent struggle escalated in the moments leading up to

the shooting” was not materially disputed. App.7, n.1;

see also, App.7 (“It is undisputed that a violent struggle

ensued in the locker room.”).

The Ninth Circuit distinguished each of Plaintiff’s

alleged issues of fact, including stating that “[i]n some

instances, these asserted disputes of fact are not genuine.”

App.17. Plaintiff’s Petition takes umbrage with the

Circuit for allegedly failing to consider these immaterial

and speculative facts in the light most favorable to her.

However, Plaintiff’s Petition omits that her evidence was

speculative, nor does she explain how her evidence is

sufficient to satisfy her burden at summary judgment.

Plaintiff’s Petition alleges that the Ninth Circuit

failed to properly evaluate: 1) whether Rodriguez was

sufficiently injured to support that she was being punched

by Dorsey, 2) whether the Officers’ testimony was credible,

despite it being corroborated by eye-witness accounts

and all of the admissible evidence, 3) whether the autopsy

report, as interpreted by Plaintiff’s counsel, suggested a

bullet trajectory where Agdeppa could have been standing

in a different position at the time of the shooting, and 4)

whether the post-incident opinions from a civilian Board

of Police Commissioners should have been considered.

With the exception of the last issue (which is raised for

the first time in the Petition), each was cogently addressed

and dismissed by the Ninth Circuit. Moreover, none of

these issues address the most important factor, i.e. the

imminent threat posed by Dorsey.

Turning first to Plaintiff’s bullet trajectory theory,

Plaintiff interprets the autopsy report to assume that

Dorsey was moving and not standing over Rodriguez

10

when all five shots were fired. However, neither the

District Court nor the Ninth Circuit accepted Plaintiff’s

assertion on this issue. The District Court stated that

notwithstanding the argument being introduced “for the

first time” at the summary judgment hearing, “[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, such

as, for instance whether he was standing or hunched over

when the first bullet struck him.” App.104.

The Ninth Circuit further criticized Plaintiff’s theory,

concluding it was not based “on expert analysis, but on

the speculation of counsel.” App.17. Notably, this Court

has held that bullet trajectories are within the province

of experts, not lay persons. United States v. Scheffer, 523

U.S. 303, 312 (1998) (identifying ballistics as “factual

matters outside of the jurors’ knowledge” to which an

expert witness must testify); see also, Krause v. County

of Mohave, 459 F. Supp. 1258, 1265-1266 (D. Az. 2020)

(“[B]ullet trajectory analysis is highly technical area,

subject to peer-reviewed research, and some degree of

standardization. Ballistics testimony requires specialized

expertise.”).

Plaintiff then speculated (and the District Court

agreed) that because unidentified Witness F stated (as

summarized in the BOPC Report) that Dorsey grabbed

Agdeppa’s wrist when shots were fired, which was slightly

different than Agdeppa’s testimony of shooting from a

small distance, this discrepancy could render Agdeppa’s

testimony less-than credible. However, the Ninth Circuit

addressed this issue, too, explaining that Witness F’s

recollection nonetheless favored Agdeppa and that if,

11

in fact, as Witness F stated that Dorsey was fighting

Agdeppa for Agdeppa’s gun at the time gunshots were

fired, “then the situation would have been more dangerous

than Agdeppa recalled.” App.17-18, see also, App.18, n.3.

Thus, this alleged dispute did not negate that Dorsey was

an imminent threat.

Notably, minor inconsistencies in an off icer’s

testimony will not defeat summary judgment. Hart v.

City of Redwood City, 99 F.4th 543, 548 (9th Cir. 2024);

Gregory v. Cnty of Maui, 523 F.3d 1103, 1107-08 (9th

Cir. 2008); Reynolds v. Cnty of San Diego, 84 F.3d 1162,

1169-70 (9th Cir. 1996) (“Illuminating a potential minor

inconsistency . . . is insufficient to raise a genuine issue

of material fact regarding the reasonability of the use of

force . . .”), overruled on other grounds by Acri v. Varian

Assoc., Inc., 114 F.3d 999 (9th Cir. 1997). Thus, the Ninth

Circuit was consistent with existing precedent in finding

that such a minor inconsistency was immaterial, especially

when the differences did not negate the existence of the

ongoing fight and Dorsey’s imminent threat.

Plaintiff then speculated further, averring the

Officers’ testimony was not credible because, in Plaintiff’s

view, Officer Rodriguez’s post-injury photos did not show

enough physical injuries. The Ninth Circuit ultimately held

that the extent of the Officers’ injuries was immaterial,

concluding in relevant part as follows:

We are not persuaded that the extent of the

officers’ injuries changes the calculus here. . . .

the officers’ injuries cannot take away from

what the bodycam recordings, Dorsey’s taking

of the taser, the BOPC report, and the other

12

undisputed facts clearly demonstrate. Nothing

about the officers’ account required injuries

more severe. App.20.

The Opinion further noted that the reference to Officer

Rodriguez as “unscathed” was merely “an argument

made by the plaintiff.” App.20. Plaintiff offered no expert

testimony or other admissible evidence to support that

Officer Rodriguez was uninjured or that a violent fight

between Dorsey and the Officers had not occurred.

The Ninth Circuit further noted that the Officers’

injuries were not “insubstantial,” noting that Agdeppa had

“sustained a prominent facial laceration . . . . and suffered

a concussion that reportedly left him unable to work for

months” and that “Rodriguez reported swelling on her

face and jaw, abrasions, and a pulled muscle.” App.20.

The Ninth Circuit further acknowledged that “[w]hile

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 . . . . [, as] [n]o clearly established law requires

the officers to have sustained more grievous injuries or

worse before using lethal force in the particular situation

they confronted.” App.20-21.

Thus, the facts relied upon by Plaintiff and the

District Court were not supported by anything other

than pure speculation of counsel, which is insufficient to

demonstrate a triable issue of material fact or to survive

summary judgment. App.17, citing 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

13

summary judgment.”); Scott v. Harris, 550 U.S. 372 (2007)

(“...the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.”).

SUMMARY OF THE ARGUMENT

The Ninth Circuit’s Opinion was both consistent

with Supreme Court and Circuit precedent. It properly

recognized jurisdiction of this case, based firmly on the

foundations enunciated in Behrens v. Pelletier, 516 U.S.

299 (1996). It also properly focused upon the second

question of the qualified immunity analysis, consistent

with Pearson v. Callahan, 555 U.S. 223, 239 (2009). The

Ninth Circuit correctly analyzed only issues of law, and

did not weigh any evidence, consistent with foundational

precedent on summary judgment. The Ninth Circuit

also adhered to Supreme Court precedent in finding that

Agdeppa was entitled to qualified immunity, as his actions

did not violate clearly established law.

Conversely, Plaintiff’s position directly conflicts with

decades of Supreme Court jurisprudence on qualified

immunity, particularly with regard to when a right has

been “clearly established.” Indeed, Plaintiff seeks to

reinstate the overruled Provocation Rule, denounced in

County of Los Angeles v. Mendez, 581 U.S. 420, 428-429

(2017) and ultimately to eradicate the defense of qualified

immunity. In sum, adopting Plaintiff’s position would

create conflicts with decades of Supreme Court precedent,

creating disastrous results and leading to the creation of

dangerous circumstances for countless law enforcement

officers throughout the country.

14

THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED

Supreme Court Rule 10 provides that “[a] petition for

a writ of certiorari will be granted only for compelling

reasons.” Thereafter, Rule 10 lists examples of the types

of cases in which the Court may grant certiorari, none of

which are applicable here, while further confirming that

“[a] petition for a writ of certiorari is rarely granted when

the asserted error consists of erroneous factual findings

or the misapplication of a properly stated rule of law.” Id.

The Petition should be denied because it presents no

“compelling reasons” for granting certiorari, as discussed

below. Moreover, this case does not involve: (1) a conflict

among United States Court of Appeals; (2) a conflict

between a United States Court of Appeals and a state

court of last resort; or (3) a conflict on an important federal

question among state courts of last resort. Therefore,

in the absence of any compelling reasons for granting

certiorari, the Petition should be denied.

I.

The Opinion is Consistent with Circuit and Supreme

Court Precedent

A.

The Ninth Circuit Correctly Maintained

Jurisdiction Over the Appeal

Though not explicitly stated in the Petition, Plaintiff

implies that the Ninth Circuit lacked jurisdiction due

to alleged disputes of fact noted by the District Court.

Plaintiff arrives at this erroneous conclusion only through

a tortured analysis of the so-called “facts,” ignoring

long-standing Supreme Court and Circuit precedent and

fixating on issues that are simply not material.

15

It is axiomatic that appellate review regarding

application of qualified immunity is appropriate even when

a purported dispute of material fact exists. Behrens v.

Pelletier, 516 U.S. 299 (1996). In Behrens, the Supreme

Court held that the district court’s denial of summary

judgment where “material issues of fact remain” did

not automatically render the denial of immunity nonappealable. Id. at 313. Rather, Behrens held that the

critical issue is whether the facts that are disputed are

material to the immunity defense. Id. The Ninth Circuit

correctly recognized this long-standing principle in its

Opinion, stating “[t]he factual disputes that the district

court highlighted . . . 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.’” App.29, citing Knox

v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997)

(defendant may bring an immediate appeal regarding

whether the alleged conduct met the standard of “objective

legal reasonableness[.]”).

Furthermore, the Supreme Court has held for many

years that whether an officer violated a constitutional

right, which may include analyzing material facts, is also

a question of law. Plumhoff v. Rickard, 572 U.S. 765,

773 (2014) (explaining that the questions in the qualified

immunity analysis, including whether a violation of the

Fourth Amendment occurred, “raise legal issues” which

are “quite different from any purely factual issues that the

trial court might confront if the case were tried; deciding

legal issues of this sort [i.e. the qualified immunity analysis]

is a core responsibility of appellate courts, and requiring

appellate courts to decide such issues is not an undue

burden.”). Importantly, in analyzing qualified immunity on

16

appeal, the reviewing court may review either of the two

prongs of the qualified immunity question, i.e. 1) whether

there was a constitutional violation, or 2) whether a right

was clearly established. Pearson v. Callahan, 555 U.S.

223, 239 (2009). The Ninth Circuit was not limited to only

analyzing whether a violation had occurred, as Plaintiff

erroneously contends.

Prior to Pearson, courts analyzed the qualified

immunity question in a two-step process, consistent

with Saucier v. Katz, 533 U.S. 194 (2001), addressing

the constitutional question first before proceeding to the

clearly established question. Pearson, 555 U.S. at 231232. In overruling Saucier’s two-step process, Pearson

recognized that there may be cases where it is appropriate

to reach the question of whether the contours of the right

at issue were clearly established prior to developing a

factual record. Id. at 239-240.

Plaintiff maintains that Pearson limited the instances

of when a court may consider the clearly established

question before first deciding whether a constitutional

v iolation occur red. However, the Pearson Cour t

explicitly stated that “the Saucier procedure should not

be regarded as an inflexible requirement” and that its

“present determination that a mandatory, two-step rule

for resolving all qualified immunity claims should not be

retained.” Pearson, at 227, 234. Contrary to Plaintiff’s

position, nowhere in Pearson is a requirement enunciated

that courts must strictly adhere to the Saucier two-step

procedure. Indeed, the Supreme Court stated that “[t]he

judges of the district courts and the courts of appeals

should be permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified

17

immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Id. at 235

(emphasis added). Pearson further emphasized that “there

will be cases in which a court will rather quickly and easily

decide that there was no violation of clearly established law

before turning to the more difficult question whether the

relevant facts make out a constitutional question at all.”

Relevant here, Pearson specifically held that “[t]here

are cases in which it is plain that a constitutional right

is not clearly established but far from obvious whether

in fact there is such a right.” Given the divided panel

Opinion and the District Court’s contrary decision, this

case was a difficult case (factually) to decide, especially

when considering Plaintiff’s speculative evidence. But, the

legal issue of whether the right was clearly established was

unambiguous as there was no prior case that put Agdeppa

on notice that his actions would be unlawful. Thus, the

Ninth Circuit properly chose to consider only the clearly

established question.

In an apparent attempt to circumvent Pearson,

Plaintiff avers that the Opinion somehow created a conflict

among the Circuits. Even if a circuit court’s misapplication

of Supreme Court precedent could be interpreted as a

“circuit conflict,” any review of the actual circuit decisions

refutes Plaintiff’s argument. Notably, all of the Circuits

relied upon by Plaintiff have, at times, chosen to render

a decision only on the clearly established prong, rather

than analyzing the facts of whether a violation occurred.

See, Fourth Circuit: Brown v. Elliott, 876 F.3d 637, 641

(4th Cir. 2017) (choosing to “skip ahead” to the clearly

established question, pursuant to Pearson), Atkinson

v. Godfrey, 100 F.4th 498, 504 (4th Cir. 2024) (choosing

18

to exercise “the analytical discretion permitted for

considering qualified immunity” and beginning “with

prong two”); Fifth Circuit: Morrow v. Meachum, 917 F.3d

870, 876-880 (5th Cir. 2019) (evaluating only the clearly

established prong and finding plaintiff’s proffer of cases

insufficient), Bailey v. Preston, 702 Fed.App’x 210, 212-214

(5th Cir. 2017) (finding it unnecessary to “reach the first

prong of the qualified-immunity analysis”); Sixth Circuit:

Burnett v. Griffith, 33 F.4th 907, 911 (6th Cir. 2022)

(focusing “on the second prong”), Hagans v. Franklin Cnty

Sheriff’s Ofc., 695 F.3d 505, 508 (6th Cir. 2012) (finding that

the “first question raises some complications” and as the

“second one does not” opting “to answer the easier of the

two questions, saving the harder one for another day”);

Seventh Circuit: Findlay v. Lendermon, 722 F.3d 895,

899 (7th Cir. 2013) (finding “it economical to . . . consider

only whether [plaintiff] has shown that the alleged

constitutional violation . . . was clearly established”),

Lopez v. Sheriff of Cook Cnty, 993 F.3d 981, 987 (7th Cir.

2021) (“Like the district court, we begin and end with

the second step of the analysis: determining whether

[the officer] violated [the subject’s] clearly established . . .

right” and granting qualified immunity); Eighth Circuit:

Thurmond v. Andrews, 972 F.3d 1007, 1012 (8th Cir. 2020)

(Stating that “[g]iven both our limited jurisdiction and

the presence of factual disputes in this case, we will begin

and end our inquiry with the clearly established prong”

and granting qualified immunity), Morgan v. Robinson,

920 F.3d 521, 523 (8th Cir. 2019) (declining to address the

factual question and finding that the defendant did not

violate a clearly established right); Tenth Circuit: Cox

v. Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (“elect[ing]

to focus on the second prong” and granting qualified

immunity), Quinn v. Young, 780 F.3d 998, 1007 (10th Cir.

19

2015) (“As our qualified-immunity jurisprudence permits

us to do, we exercise our discretion to proceed straight to

the latter question and resolve this claim on the clearlyestablished-law prong of our qualified-immunity test.”).

Thus, the Opinion from the Ninth Circuit is consistent,

and there simply is no split among the Circuits.

Furthermore, Plaintiff ignores other cases, where

the Ninth Circuit examined the “more difficult” question

of whether a constitutional right had been violated before

reaching the clearly established question, consistent with

Saucier. Recently, in Hart v. City of Redwood City, 99

F.4th 543 (9th Cir. 2024), the Ninth Circuit reached both

the clearly established question and the “more difficult”

question of whether a right had been violated and concluded

that the officer was entitled to qualified immunity, again

reversing a district court’s denial of summary judgment.

Thus, the Opinion is entirely consistent with Pearson, as

well as the Circuit decisions.

B. The Ninth Circuit Correctly Applied Summary

Judgment Standards

Plaintiff next advances the mistaken premise that

an appellate court must adhere to a trial court’s factual

findings on summary judgment. At summary judgment,

however, no court may make factual determinations by

weighing the evidence. Tolan v. Cotton, 572 U.S. 650,

656-57 (2014) (holding on summary judgment courts

may not “weigh the evidence and determine the truth of

[a] matter”). Indeed, the premise of summary judgment

is that the case may be resolved on issues of law because

there are no issues of material fact. Fed. R. Civ. P. 56(a)

(“The court shall grant summary judgment if the movant

20

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter

of law.”). Thus, there are no factual findings that can be

made at summary judgment, only legal conclusions based

upon undisputed facts.

As a result, an appellate court is not required to adhere

to any “findings” by the trial court because there are none.

This is precisely why an appellate court’s review of a trial

court’s decision on summary judgment, particularly on the

issue of qualified immunity, is reviewed de novo. Elder v.

Holloway, 510 U.S. 510, 516 (1994) (“Whether an asserted

federal right was clearly established at a particular time,

so that a public official who allegedly violated the right has

no qualified immunity from suit, presents a question of law,

not one of “legal facts.” [citations omitted] That question of

law, like the generality of such questions, must be resolved

de novo on appeal.”). Thus, Plaintiff’s suggestion that the

Ninth Circuit should have accepted the alleged “disputes”

of material fact as determined by the District Court

represents a serious misunderstanding of the summary

judgment and qualified immunity analyses. The Ninth

Circuit was well within its authority to delve into the

qualified immunity analysis and determine whether any

disputes of material fact precluded summary judgment.

It was not required to adhere to any alleged “findings”

by the District Court.

Moreover, whether facts are “material” to a claim is

also a question of law, appropriate for appellate review.

Jeffers v. Gomez, 267 F.3d 895, 904-05 (9th Cir. 2001)

(Ninth Circuit extrapolating from Behrens that “any issue

of law, including the materiality of the disputed issues

of fact, is a permissible subject for appellate review.”

Emphasis in original.).

21

Here, the Ninth Circuit concluded that none of the

allegedly disputed issues of fact raised by Plaintiff or

the District Court were “dispositive.” App.18. The Ninth

Circuit recited the factors outlined in Graham v. Connor,

490 U.S. 386, 396 (1989), in considering whether Agdeppa’s

use of force was excessive, but found that no evidence

diminished the “most important” factor; that Dorsey

unquestionably posed an imminent threat. App.16, 19.

Notably, while Plaintiff ignores that the Ninth Circuit

found her evidence to be speculative, the Circuit’s decision

was a legal one. On summary judgment, the moving party

bears the initial burden of demonstrating the absence of

a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once Agdeppa met his burden,

the burden shifted to Plaintiff, the non-moving party, to

“set out specific facts showing a genuine issue for trial.”

Id. at 324. To carry this burden, Plaintiff must “do more

than simply show that there is some metaphysical doubt

as to the material facts.” Matsushita Electrical Industry

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

“The mere existence of a scintilla of evidence... will be

insufficient; there must be evidence on which the jury could

reasonably find for the [non-moving party].” Anderson v.

Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Indeed,

Plaintiff must set forth “significant probative evidence

tending to support the complaint” and may not rely on

the mere allegations in the pleadings in order to preclude

summary judgment. T. W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Association, 809 F.2d 626, 630-631 (9th Cir.

1987); Scott v. Harris, 550 U.S. 372 (2007) (“...the mere

existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that

there be no genuine issue of material fact.”).

22

Plaintiff did not meet her burden. There was no

evidence to support that the Officers were not engaged in a

vicious and brutal fight with Dorsey; to the contrary, all of

the evidence undeniably confirms Dorsey’s violent attack.

Thus, the Opinion was well-founded, relying upon decades

of Supreme Court and Ninth Circuit precedent. The

Ninth Circuit correctly applied the summary judgment

standards in concluding Plaintiff’s alleged disputes of fact

were immaterial and her purported evidence insufficient

to overcome her burden on the issue of qualified immunity.

C.

The Law is Not Clearly Established When a

Warning of Lethal Force Must Be Given

The Ninth Circuit also addressed Plaintiff’s dispute of

whether a “proper” warning had been issued. The Opinion

discussed Ninth Circuit precedent that the issuance of

a “warning” “is not a one-size-fits-all proposition that

applies in every case or context.” App.24. The Ninth

Circuit has employed a rule that a warning need be given

“‘[i]n general,’ ‘whenever practicable.’” Id., citing Gonzalez

v. City of Anaheim, 747 F.3d 789, 794 (9th Cir. 2014) (en

banc), quoting Harris v. Roderick, 126 F.3d 1189, 1201

(9th Cir. 1997). The Opinion explained that the origins of

the Ninth Circuit’s “‘warning’ rule” was “sourced . . . to

the Supreme Court’s decision in [Tennessee v. ] Garner.”

App.24.

In Garner, the Supreme Court stated that “if a suspect

threatens the officer with a weapon or there is probable

cause to believe that he has committed a crime involving

the infliction or threatened infliction of serious physical

harm, deadly force may be used if necessary to prevent

escape, and if, where feasible, some warning has been

23

given.” 471 U.S. 1, 11-12 (1985). The facts in Garner are

significantly different than those here, especially as the

use of force was employed to prevent escape, and not in

defense of an imminent threat. In Garner, the subject

was never armed, as the officer admitted, but was fleeing

the scene of a burglary when the officer used lethal force,

ultimately killing Garner. Id. at 3-4. Unlike the facts here,

Garner was not attacking an officer with a weapon, nor

did he pose an imminent threat.

Prior precedent has consistently stated that a warning

must be given “whenever practicable” so that a suspect

“who do[es] not pose an immediate threat” to officer

safety “may end his resistance.” Harris v. Roderick, 126

F.3d 1189, 1204 (9th Cir. 1997). Here, it is undisputed that

Dorsey posed an imminent threat. It is also undisputed

that Agdeppa uttered something before firing, which he

believes was something to the effect of “stop!” 3-ER-366367 at ¶¶ 26-27; 3-ER-375 at ¶¶ 22-23; 4-ER-439, 441. As

the audio and video demonstrate, Dorsey was warned by

the Officers numerous times of their escalating force. Yet,

Dorsey chose to, instead, ramp up his violent resistance.

The Ninth Circuit further noted that the legal

requirements surrounding warnings of lethal force are

not defined in currently existing case law such that an

officer would know “when a warning is ‘practicable,’ what

form the warning must take, or how specific it must be.”

App.25. The Ninth Circuit further noted it is not clear

“how the absence of a warning is to be balanced against

the other Graham factors in the context of a case such

as this.” Consequently, the Circuit concluded that the

“flexibility built into our ‘warning’ rule makes it more

difficult for that rule, standing alone, to clearly establish

24

a constitutional violation in any given case” and found the

alleged lack of warning did not suffice to deny Agdeppa

qualified immunity. App.24.

The Opinion succinctly explained the standard of

review on whether a right is 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 [v.

Howards], 566 U.S. [658,] 664 [(2012)]). This is

a high standard: “existing precedent must have

placed the statutory or constitutional question

beyond debate.” Id. at 12 (quoting Ashcroft v. alKidd, 563 U.S. 731, 741 (2011)). This means that

“every ‘reasonable official would understand

that what he is doing’ is unlawful.” [Dist. of

Columbia v.] Wesby, 138 S. Ct. [577], 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). App.14.

25

Applying this standard, the Ninth Circuit concluded

that Plaintiff “was required to come forward with ‘existing

precedent’ that ‘squarely governs the specific facts at

issue,’” but “has not done so.” App.25 (quoting Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018)).

Plaintiff and the District Court patently failed to

analogize the facts of this case to any precedent that would

have put Agdeppa on notice that he needed to articulate a

specific lethal force warning in these circumstances – i.e.

circumstances of hand-to-hand combat, where the suspect

poses an imminent threat. Neither the facts in Newmaker

v. City of Fortuna, 842 F.3d 1108 (9th Cir. 2016), Gonzalez

v. City of Anaheim, 747 F.3d 789 (9th Cir. 2014) (en banc),

or any other case cited by the dissent in the Opinion are

remotely similar, as required to have given Agdeppa

notice that his actions would be unlawful. As the Opinion

explained, “[t]hese 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.” App.26.

Ultimately, the Opinion concluded that “[t]he

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” and “no clearly

26

established law required this in the circumstances

Agdeppa confronted.” App.26. Consequently, the Opinion

is consistent with and rests soundly on long-standing

Supreme Court precedent.

II. Adopting Plaintiff’s Position Would Conflict With

Established Precedent

To adopt Plaintiff’s view would conflict with decades

of precedent. Even if the facts supported that Agdeppa

violated Dorsey’s rights in some manner, there were no

cases that clearly established Agdeppa’s actions were

unlawful.

None of the cases cited by Plaintiff or the District

Court put an officer on notice that using lethal force was

unlawful in the situation confronted by Agdeppa. The

District Court relied upon Tennessee v. Garner and Deorle

v. Rutherford, but without any analysis or comparison of

the facts in those cases to the case at bar. Instead, and

ignoring the context of the dispute at hand, the District

Court found that “[a]t the time of 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.’” App.114.

The District Court’s analysis was both overly

generalized and factually inapposite to the undisputed

evidence. Here, there is no evidence whatsoever to suggest

Dorsey did not pose an immediate threat, whereas in both

Garner and Deorle, there was evidence that the subjects

were not a threat or were otherwise compliant with the

officers’ orders. Garner, at 3-4 (noting that the officer

27

himself admitted he did not believe Garner was armed);

Deorle, at 1276-1278 (noting the officer shot Deorle without

warning and without asking Deorle to drop the bottle

despite Deorle’s repeated compliance with officer’s orders

prior to that). Thus, Garner and Deorle could not have

informed Agdeppa about his use of force, especially as

those cases did not involve hand-to-hand combat.

Agdeppa argued below that other Ninth Circuit

precedent established his actions were, in fact, lawful.

For example, Isayeva and Billington clearly establish

that an officer that appears to be losing in hand-to-hand

combat may use deadly force. Billington v. Smith, 292

F.3d 1177, 1185 (9th Cir. 2002), overruled in part on other

grounds by County of Los Angeles v. Mendez, 581 U.S.

420, 428-429 (2017) (finding that an imminent threat of

injury or death has already been realized when a suspect

physically assaults and punches the officers); Isayeva

v. Sacramento Sheriff’s Dep’t, 872 F.3d 938, 950, 953

(9th Cir. 2017) (finding that officer’s use of lethal force

did not violate clearly established law when objective

facts demonstrated that subject was “winning this fight

and was doing so quickly, highlighting the risks to [the

deputy]” that was being pummeled). Plaintiff and the

District Court, however, disregarded this precedent,

deeming those cases inapposite. Notwithstanding, it was

not Agdeppa’s burden to demonstrate that the right at

issue was clearly established; that obligation rests solely

with Plaintiff. App.20, n.4, citing Isayeva, 872 F.3d at 946;

Davis v. Scherer, 468 U.S. 183, 197 (1984).

Given the District Court’s failure to analyze whether

Agdeppa’s actions were proscribed by clearly established

law, the Order did precisely what the Ninth Circuit has

28

been admonished for doing in the past – casting the

clearly established law at a high level of generality to deny

qualified immunity. Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018); City & Cnty of San Francisco v. Sheehan, 575 U.S.

613 (2015); Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

As the Supreme Court has repeatedly stated:

W her e con st it ut ion a l g u idel i ne s se em

inapplicable or too remote, it does not suffice

for a court simply to state that an officer may

not use unreasonable and excessive force, deny

qualified immunity, and then remit the case for

a trial on the question of reasonableness. An

officer “cannot be said to have violated a clearly

established right unless the right’s contours

were sufficiently definite that any reasonable

official in the defendant’s shoes would have

understood that he was violating it.” Kisela, 138

S. Ct. at 1153, quoting Plumhoff v. Rickard, 572

U.S. 765, 778-779 (2014).

To adhere to the position advanced by Plaintiff in the

Petition, this Court would need to disregard decades of

precedent regarding the definition of “clearly established”

and would leave law enforcement officers essentially to

guess whether their actions could constitute a violation,

particularly when it is not an “obvious” case. “Qualified

immunity is no immunity at all if “clearly established”

law can simply be defined as the right to be free from

unreasonable searches and seizures.” Sheehan, 135 S.

Ct. at 1776.

Plaintiff’s hypothetical concern about futuristic

weapons is also without merit, as decades of precedent

have always maintained that “general statements of the

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law are not inherently incapable of giving fair and clear

warning to officers.” Kisela, 138 S. Ct. at 1153 (quoting

White v. Pauly, 137 S. Ct. 548, 552 (2017), quoting United

States v. Lanier, 520 U.S. 259, 271 (1997)). Thus, if an

officer used a new technology as a means of lethal force

(think futuristic laser guns), the requirements of Graham

would still apply and govern, regardless of the novelty

of the technology. al-Kidd, 563 U.S. at 741 (“We do not

require a case directly on point, but existing precedent

must have placed the statutory or constitutional question

beyond debate.”).

In Plaintiff’s new argument advocating that the

BOPC’s admonitions of the Officers’ pre-shooting conduct

should have been considered, Plaintiff also seeks to

resurrect the Provocation Rule that the Supreme Court

denounced in County of Los Angeles v. Mendez, 581 U.S.

420, 428-429 (2017).

In Mendez, the Supreme Court found that a “different

Fourth Amendment violation cannot transform a later,

reasonable use of force into an unreasonable seizure.”

Id. at 423. The officers had been searching (under an

arrest warrant) for a man they suspected as being at the

property, but when they attempted to search a shack on

the property, they instead encountered Mendez and his

wife. Id. at 423-424. Mendez was getting up with a BB

gun in his hand (to put it down) when the officers entered

the shack unannounced, saw Mendez with the gun, and

opened fire shooting both Mendez and his wife, causing

non-fatal injuries to both. Id. at 424.

The lower courts both found that although the use

of force in response to what appeared to be a BB gun

pointed directly at one of the officers was lawful, because

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the entry to the shack was unannounced, the officers were

nonetheless liable for the injuries they caused. Id. at 425426. The Supreme Court, however, found this analysis

inconsistent with Fourth Amendment jurisprudence. In

rejecting the Ninth Circuit’s then existing Provocation

Rule, the Cout stated that the rule “instructs courts to

look back in time to see if there was a different Fourth

Amendment violation that is somehow tied to the eventual

use of force. That distinct violation, rather than the

forceful seizure itself, may then serve as the foundation of

the plaintiff’s excessive force claim.” Id. at 428 (emphasis

in original). The Court went on to conclude:

This approach mistakenly conflates distinct

Fourth Amendment claims. Contrary to this

approach, the objective reasonableness analysis

must be conducted separately for each search

or seizure that is alleged to be unconstitutional.

An excessive force claim is a claim that a law

enforcement officer carried out an unreasonable

seizure through a use of force that was not

justified under the relevant circumstances. It is

not a claim that an officer used reasonable force

after committing a distinct Fourth Amendment

violation such as an unreasonable entry.

By conflating excessive force claims with other

Fourth Amendment claims, the provocation

rule permits excessive force claims that cannot

succeed on their own terms. That is precisely

how the rule operated in this case. The District

Court found (and the Ninth Circuit did not

dispute) that the use of force by the deputies

was reasonable under Graham. However,

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respondents were still able to recover damages

because the deputies committed a separate

constitutional violation (the warrantless entry

into the shack) that in some sense set the

table for the use of force. That is wrong. The

framework for analyzing excessive force claims

is set out in Graham. If there is no excessive

force claim under Graham, there is no excessive

force claim at all. To the extent that a plaintiff

has other Fourth Amendment claims, they

should be analyzed separately. Id. at 428-429

(emphasis added).

This is the same misunderstanding that Plaintiff advances

here. Notwithstanding Plaintiff’s waiver of this issue

below, there is no reason for either the District Court

or the Ninth Circuit to have given consideration to the

BOPC’s admonishments for the Officers’ pre-shooting

conduct because it was irrelevant to the excessive force

analysis. Nor does Plaintiff attempt to explain how the

Officers’ pre-shooting conduct related to the ultimate use

of lethal force. Plaintiff’s position is simply untenable; to

accept it would be to re-institute the Provocation Rule

and upend yet more precedent. Thus, the issue is without

merit.

III. Adopting Plaintiff ’s Position Would Create

Dangerous Circumstances for Law Enforcement

Adopting Plaintiff’s position would not only set

bad precedent, but could effectively end the defense of

qualified immunity and put countless law enforcement

officers in more dangerous circumstances.

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The dangers of adopting Plaintiff’s position was best

articulated by Justice Bress in his dissent to the earlier

(now reversed) Ninth Circuit opinion:

[T]he dangers of today’s decision are especially

ominous. At what microsecond interval in

the final heated moments of this escalating

confrontation was Agdeppa somehow legally

required to hit the “pause button” and recite

some yet-undisclosed, court created warning

script? The uncertainty the majority opinion

invites stands as a further condemnation of its

holding. And the rule of law it treats as clearly

established on these facts could well make the

difference in whether officers like Agdeppa and

Rodriguez make it out of a violent altercation

alive. No clearly established law remotely

requires officers who already put themselves in

harm’s way to do so as riskily as the majority

opinion now demands. App.94.

Officers need not await the “glint of steel” or suffer

a certain amount of injury before using force to protect

themselves or others. Harris v. Serpas, 745 F.3d 767, 773

(5th Cir. 2014); Bowles v. City of Porterville, 571 F. App’x

538, 540-41 (9th Cir. 2014); Estate of Larsen v. Murr, 511

F.3d 1255, 1260 (10th Cir. 2008) (“A reasonable officer need

not await the ‘glint of steel’ before taking self-protective

action; by then, it is ‘often . . . too late to take safety

precautions.’”). Contrary to Plaintiff’s assertion, the

Fourth Amendment does not require that law enforcement

officers incur a heightened level of injury before employing

lethal force.

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The defense of qualified immunity is important.

The law of qualified immunity allows officials to make

reasonable mistakes of fact. al-Kidd, 563 U.S. at 743

(“Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about

open legal questions.”); Malley v. Briggs, 475 U.S. 335

(1986) (Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.”).

When the issue is whether the law was clearly established,

a dispute of fact will not preclude a grant of qualified

immunity, unless the facts are material to the analysis.

Here, the alleged disputes of fact are immaterial, because

it is undisputed that a violent fight was occurring between

the Officers and Dorsey. It was reasonable for the Officers

to perceive an imminent threat, as the BOPC Report also

concluded. 3-ER-136 (“The available evidence supports

that [Agdeppa’s] belief that there was an imminent threat

of death or serious bodily injury at the time of the OIS

was objectively reasonable.”).

Supporting Plaintiff’s reliance on immaterial facts

and speculation would result in the improper denial of

qualified immunity based on an alleged dispute of fact –

even when there is no evidence, just conjecture, to support

the alleged fact in dispute. Consequently, were Plaintiff’s

position followed, the ensuing ruling could singlehandedly

irradicate the defense of qualified immunity by allowing

any plaintiff to manufacture an alleged dispute of fact,

regardless of the absurdity of the theory or “scintilla” of

evidence to support the fact.

Plaintiff ’s position contradicts long-established

Supreme Court precedent, which requires more than

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“the existence of a mere scintilla of evidence” to preclude

summary judgment. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986); Scott v. Harris, 550 U.S. 372 (2007).

Here, none of the “facts” relied upon by Plaintiff or the

District Court are material to whether the law was clearly

established. Even assuming the Officers were not as

injured as they contended, there is no evidence to support

that Dorsey was nonetheless an imminent threat, which

is the only fact material for determination of whether the

law was clearly established. There is simply no dispute

that Dorsey posed an imminent threat to the Officers.

Scott v. Harris, 550 U.S. at 380 (on summary judgment,

improper to credit party’s version of events which was “so

utterly discredited by the record [a video recording] that

no reasonable jury could have believed him”).

Were the Court to accept Plaintiff’s assertions, the

resulting ruling would make it virtually impossible for

any officer to succeed on the defense of qualified immunity

prior to trial, when the defense can be denied whenever

mere allegations of disputes of fact are made based

on nothing more than an attorney’s theory, argument,

or speculation. Mitchell v. Forsyth, 472 U.S. 511, 526

(1985) (qualified immunity defense is an “immunity from

suit rather than a mere defense to liability; and … it is

effectively lost if a case is erroneously permitted to go

to trial”). Consequently, Plaintiff’s position is in direct

contradiction to Supreme Court precedent and cannot be

countenanced. The Petition for Writ of Certiorari must

be denied.

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CONCLUSION

The Petition for Writ of Certiorari must be denied.

The Ninth Circuit’s decision is well-grounded in decades

of Supreme Court precedent and is consistent with all of

the other Circuits. Adopting Plaintiff’s position would be

disastrous, not only contradicting decades of foundational

precedent surrounding qualified immunity, appellate

jurisdiction and summary judgment, but would also result

in creating dangerous circumstances for law enforcement

officials and the public they serve, essentially eradicating

the defense of qualified immunity. Such a drastic upending

should not be countenanced, especially when the Petition

is supported by nothing more than flawed legal reasoning,

speculation, and conjecture. The Petition must be denied.

Respectfully submitted,

Kevin E. Gilbert*

Carolyn M. Aguilar

Orbach Huff & Henderson LLP

6200 Stoneridge Mall Road, Suite 225

Pleasanton, CA 94588

(510) 999-7908

kgilbert@ohhlegal.com

* Counsel of Record

Counsel for Respondent

August 8, 2024