In Landmark Case, 9th Circuit Rules Against Use of Deadly Force on Non-Threatening Armed Person

• Use of deadly force and qualified immunity 
• Use of deadly force and the Fourth Amendment 
• Use of deadly force to stop a non-threatening armed person 
• Use of deadly force on one who ignores conflicting commands to submit 

Using deadly force on a person constitutes a Fourth Amendment seizure. Case law clearly establishes the rule that when a person is carrying what appears to be a gun in his waistband, but posing no immediate threat, police officers may not shoot and kill him, particularly after shouting conflicting commands. Merely walking away from officers, even while ignoring their commands to submit, does not constitute “fleeing,” and does not justify the use of deadly force to stop him.

A concerned citizen called 911 in the afternoon of October 31, 2019, to report a man who appeared to be carrying a firearm walking in San Jose. It was also of concern that a high school was three blocks away and the students were about to be released from class for the day. Several San Jose police officers responded to the area and observed Francis Calonge walking away from the high school, toward the officers. Calonge had what appeared to be a handgun (but was later determined to be a “Powerline 340” BB gun) in his ....