The Use of Deadly force and the Duty to Warn

• Use of Deadly Force; Duty to Warn
• Qualified Immunity in a Use-of-Deadly-Force Case

Qualified immunity from civil liability in a case where deadly force is used is not available in a case where discrepancies in the evidence are better left to a jury to decide.  A police officer contemplating the use of deadly force has a duty to warn a suspect when at all practicable to do so under the circumstances.

**UPDATE 05/10/2023:   On May 4, 2023, this opinion was withdrawn and a rehearing granted upon resignation from the bench by one of the affirming justices and his replacement with another.  A change in justices hearing the case apparently is going to reverse this decision and, as a result, grant Officer Agdeppa qualified immunity.  However, this occurrence does not change the basic rule that when at all feasible, an officer should warn a suspect when deadly force is about to be used.**

On October 29, 2018, Los Angeles Police Officers Edward Agdeppa (5’1” and 145 pounds) and Perla Rodriquez (5’5”, 145 pounds) responded to a call at a 24-Hour Fitness gym on Sunset Boulevard in Hollywood where it was reported that a person was trespassing and engaging in disruptive conduct.  Upon arrival, staff members complained that a “gentleman” was “a little bit irate,” wasn’t listening, and had already hurt a few gym members.  He had also apparently assaulted security personnel. Note: The bulk of this summary is taken from the dissenting opinion; the majority having glossed over much of it.

With their body-worn cameras turned on, the officers contacted a naked Albert Dorsey in the shower area of the men’s locker room, enjoying the music being played on his cellphone.  Dorsey was 6’1” tall and weighed 280 pounds (almost as much as both officers combined).  Over the next two minutes, Dorsey ignored the ....