It will be up to a jury to decide whether a police officer used excessive force when he shot a suspect who he thought posed an immediate threat by reaching for his gun. The officer claimed qualified immunity, but the District Court disagreed when it denied the officer’s motion for summary judgment after seeing body-cam footage of the encounter. The Ninth Circuit has now affirmed the denial.

Officer Evan Wright was trying to execute an arrest warrant on plaintiff/appellee Xavier Lopez. When he located Lopez, the suspect had his hands in the pockets of his trench coat. Wright ordered him to take his hands out of his pockets. Seven seconds later, Wright shot Lopez twice, causing non-fatal injuries. What actually happened during those seven seconds led the Ninth Circuit to deny Wright’s qualified immunity so Lopez’s claims that the officer used excessive force and violated his Fourth Amendment rights should be determined by a jury.

Qualified immunity protects police officers (and other government officials) from lawsuits that allege they violate a plaintiff’s rights. Plaintiffs can only sue when officials violate clearly established or constitutional rights.

The central issue in Wright’s appeal was whether Presiding District Court Judge Otis D. Wright properly denied Wright’s request for qualified immunity. In a 2-1 decision, with a strong dissent by Judge Gabriel Patrick Sanchez, Ninth Circuit Judge Salvador Mendoza authored the opinion on December 5. A footnote in the opinion explains that “a denial of summary judgment is usually not an immediately appealable final decision, but that rule does not apply when the summary judgment motion is based on a claim of qualified immunity.”

The opinion begins with an explanation of when the denial of qualified immunity can be affirmed. Mendoza said the law requires that factual disputes and inferences must be resolved in Lopez’s favor. Also, two conditions must be proven. First, it must be proved that Wright’s conduct violated a constitutional right, and that right had to be “clearly established at the time of the violation.”

The constitutional right at issue is the Fourth Amendment’s protection against unreasonable searches and seizures by the government. If Wright used unreasonable force, he would have violated Lopez’s constitutional right. Precedent has established that an officer’s use of deadly force is unreasonable if he “did not have probable cause to believe that the suspect posed a significant threat of death or serious injury to the officer or others.” Officers are also required to issue warnings and must give suspects an opportunity to comply.

Wright failed to do these things. Rather, body-cam footage showed that both of Lopez’s hands were empty and raised. In fact, Lopez had his hands in the air and was backing away when Wright fired his gun at him twice. This evidence led the District Court to conclude that a jury could conclude that Lopez presented no immediate threat and that Wright’s use of deadly force was a violation of Lopez’s Fourth Amendment rights. The Ninth Circuit thus concluded that the details of Lopez’s compliance and whether his actions “posed an immediate threat to officer safety” should be “triable questions for a jury to decide.”

The opinion then took up the question of whether Wright violated a clearly established right, whether he had fair notice of that right, and whether he acted unconstitutionally. Mendoza wrote that “Officer Wright had fair notice that he should not have used deadly force” because, in fact, there was no immediate threat. He said that Lopez’s complying actions were sufficient to put Wright on notice that he could not use deadly force.

Mendoza then explained that he rejected Judge Sanchez’s arguments because they were based on the facts of cases that differed from Lopez’s. Primarily, he said, “Officer Wright did not shoot Mr. Lopez as he was reaching in his jacket for what Officer Wright suspected to be a gun; he shot Mr. Lopez after he had lifted his hands in the air.”

The opinion’s conclusion recognized the difficulty of ruling on a case that revolves around a police officer’s actions during a tense, seven-second time span. He wrote, “But in such moments, a life hangs in the balance, and the right decision must be made. In affirming the district court’s denial of qualified immunity, the Court does not find that Officer Wright made the wrong decision, only that such questions are better left to juries.”

And now they will be.

This case follows a June 2023 California Supreme Court decision that held that police in the state are not immune from civil lawsuits for “misconduct that happens while they investigate crimes.” The Associated Press said that the ruling from a Riverside County case about police negligence following a shooting incident between two neighbors “overruled a precedent made by lower courts that had helped protect law enforcement from litigation for decades.” The article noted that the ruling “helps remove an obstacle for victims seeking damages from many, (but not all), incidents of police misconduct.”