By Robert Phillips, Deputy District Attorney (Ret).

Use of Deadly Force and Qualified Immunity
Use of Deadly Force Upon One Carrying a Baseball Bat
Post Civil Trial Relief and Summary Judgment

Estate of Aguirre v. County. of Riverside (9th Cir. Mar 11, 2025) 131 F.4th 702

Rule:  Deadly force used by a law enforcement officer is not justified where the suspect poses no immediate threat to the officer or to others. The use of deadly force on a subject who is carrying a baseball bat, but not threatening anyone with it, violates the Fourth Amendment and subjects a law enforcement officer who uses the force to civil liability.

Facts: On April 15, 2016, a Riverside County Sheriff’s Department Sergeant responded to a call in Lake Elsinore, California, concerning a person destroying property with a bat or “club-like” object.  Upon arriving at the scene, the Sergeant located a person matching the subject’s description, standing in the driveway of a house.  That person, later identified as Clemente Najera-Aguirre (“Najera”), was holding a baseball bat, resting it on his shoulder.  Also observed at the scene was some shattered glass around the house he was standing in front of. Other people were in the area, about 15 to 20 feet from Najera.  

The Sergeant began issuing commands to Najera for him to drop the bat and get down on the ground.  Najera turned his attention to the Sergeant, but failed to comply with his instructions. Najera then exited a gate surrounding the front of the house and moved toward the Sergeant. Despite repeated orders, Najera did not drop the bat.  When Najera got to within 10 to 15 feet, the Sergeant pepper sprayed him twice. This proved to be ineffective apparently due to a wind blowing the spray away.  But it got Najera’s attention.  Najera turned towards the Sergeant while still holding the bat.  With the two still being some 10 to 15 feet apart, the Sergeant pointed his gun at Najera.  Within seconds of facing each other, and without warning, the Sergeant began shooting.  Six round were fired, separated into two volleys with a pause of somewhere between five to thirty seconds (depending upon whose account you believe) between the initial shots and the next round of shots. The second round of shots took Najera down; killing him. Witnesses later testified that, “Najera collapsed face down—falling ‘like a tree’ where he had been shot—with his feet closer to and his head farther from” the Sergeant.  

The subsequent investigation revealed that his body was on the sidewalk approximately ten feet from where the Sergeant had been standing.  An autopsy showed that a total of four bullets had struck Najera; one in the right upper chest, one in the left elbow, and two in the back, which were the fatal shots. The bullet paths of the shots to the elbow and the back suggested that Najera had turned away, with his back to the Sergeant, when he was struck. 

Najera’s children sued the Sergeant and Riverside County in federal court pursuant to 42 U.S.C. § 1983, alleging that Najera’s Fourth (unconstitutional seizure) and Fourteenth (due process) Amendment rights had been violated. Before trial, the Sergeant’s motion for summary judgment was denied as to the Fourth Amendment claim (although granted in all other respects), denying him qualified immunity.  The Sergeant’s appeal of this ruling was unsuccessful (See Estate of Aguirre v. County. of Riverside (9th Cir. Mar. 24, 2022) 29 F.4th 624.)  The matter went to trial resulting in a verdict for the plaintiffs—finding the Sergeant civilly liable—with the jury awarding the plaintiffs $10 million in damages.  After the presentation of evidence, and again after the jury reached its verdict, the Sergeant’s successive motions under Federal Rule of Civil Procedure 50(a) and (b), respectively, claiming qualified immunity, were both denied by the trial court.  The Sergeant subsequently filed this appeal.

Held: The Ninth Circuit Court of Appeals affirmed.  The issue on appeal, as it was throughout the twisted proceedings as described above, was the reasonableness of the use of deadly force against a person armed with a baseball bat, but where there is no attempt by the decedent to use that bat offensively, and whether an officer is entitled to qualified immunity in a subsequent civil case.  The Court had no problem finding that the Sergeant was not entitled to qualified immunity under the facts of this case.

In order to be eligible for qualified immunity, the civil defendant (the Sergeant in this case) must satisfy two prongs. First, he must prove that the plaintiffs (the Najeras) failed to allege or show facts that would make out a constitutional violation, or, if a violation is shown, that the violation was not “clearly established” via prior case law at the time of the defendant’s alleged misconduct.  In this case, the Court determined that while “drawing all inferences in favor of the Najeras, the facts at trial show (that the Sergeant) violated clearly established law that holds deadly force is not justified where the suspect poses no immediate threat.”  In this case, it is significant that a civil jury had already found the Sergeant to be liable for his use of deadly force. As noted by the Court: “When, as here, ‘a jury has found (with reasonable support in the evidence)’ a constitutional violation by a police officer, we view the jury’s verdict as ‘sufficient to deny him qualified immunity’ on the first prong of the analysis. . . . The jury’s finding in favor of the Najeras establishes that (the Sergeant) violated Najera’s Fourth Amendment right to be free from excessive force.”  

As for the second prong, the Court had no difficulty finding prior case law close enough to the facts of this case to have put the Sergeant on notice that he cannot constitutionally use deadly force on a subject who, although armed with a baseball bat, has not attempted to use that bat to assault the Sergeant or anyone else.  Per the Court: “(C)aselaw from this circuit and the Supreme Court, published before the incident, clearly establishes that ‘[d]eadly force is not justified “[w]here the suspect poses no immediate threat to the officer and no threat to others.”’”  Specifically, the Court cited the prior case of Hayes v. County of San Diego (9th Cir. 2013) 736 F.3rd 1223.) In Hays, the Ninth Circuit held that police used excessive force when officers “without warning . . . shot and killed” an individual who was holding a knife but not threatening the deputies and standing “roughly six to eight feet away” from them.  (Id., at pp. 1227-1228.)

In this case, even though the Sergeant (whose credibility was challenged during the trial “again and again”) testified that in his opinion Najera posed a threat, the jury had good reason to doubt his testimony.  But even if he was to be believed, his own testimony showed the unreasonableness of his use of deadly force.  For instance, the Sergeant testified that he “fired three times, and (then) moved to the left.”  When he did so, Najera “kind of turned, like, away from me momentarily.”  This acknowledgment that “Najera turned away from him—especially coupled with eyewitness testimony that (the Sergeant) paused for as long as thirty seconds between volleys of shots when combined with forensic evidence that bullets struck Najera while he was facing away—could lead the jury to determine that Najera did not pose a threat right before (the Sergeant) shot him and underscores why we give deference to the jury’s view of the facts.”  

The Sergeant’s own “police practices” expert agreed that “[t]here were two shots that struck Mr. Najera in the back,” and that at one point the Sergeant “believed that Mr. Najera momentarily faced away, turned away, stopped advancing.”  Also, witnesses testified that Najera was over ten feet from the Sergeant when he first opened fire, and that Najera fell where he stood rather than stumbling several feet further backward after being shot, as the Sergeant had claimed. The Sergeant himself estimated that Najera was ten feet away at the time of the shots.  The Court further found it significant that the Sergeant had failed to warn Najera before deploying deadly force.  Also, there was no evidence that any bystanders were threatened by Najera.  Lastly, the Court found that the Sergeant’s use of deadly force could not be justified as a “reasonable mistake.”  The prior case law clearly put him on notice that to shoot an individual, even though armed with a bat, was unjustified absent evidence that Najera was about to use that bat to harm the officer or others at the scene.  As such, the Sergeant’s motion for a judgment as a matter of law notwithstanding the jury’s verdict, as were all his motions for qualified immunity, was properly denied.  

Note:  This case is really a “no-brainer.”  With the deceased standing at least ten feet away, making no aggressive moves (and in fact appears to be turning away), and holding a baseball bat on his shoulder, shooting him without warning and without any indication that he was going to attack the officer or others, is clearly excessive.  If the force used on a mentally disturbed person who is merely holding a knife without using it aggressively is a Fourth Amendment violation (See the previously briefed Johnson v. Myers (9th Cir. Mar. 3, 2025) 129 F.4th 1189), then doing the same to someone like Najera-Aguirre here doing no more with a baseball bat is certainly illegal.