A federal appellate court March 24 rejected a Riverside Sheriff’s sergeant’s claim that he should not go to trial after fatally shooting a man in Lake Elsinore in 2016.
Sgt. Dan Ponder claimed in the California Central District, and again on appeal, that Clemente Najera-Aguirre posed a threat to him and others when Ponder shot him, making his actions protected under qualified immunity.
Ponder found Najera-Aguirre with a stick April 15, 2016, near West Heald Avenue in Lake Elsinore, after responding to reports that someone in Lake Elsinore was destroying property with a bat-like object, and had threatened a woman with a baby, according to the appellate decision.
Ponder told Najera-Aguirre to drop the stick, and tried to pepper-spray him after he refused, but the spray blew back in Ponder’s face.
Eyewitness accounts and Ponder’s testimony differ.
Some say Najera-Aguirre retrieved a baseball bat from nearby bushes and then approached Ponder with either the stick or the bat raised.
Other witnesses said Najera-Aguirre stood still, holding the stick pointed down.
Ponder shot Najera-Aguirre six times from 15 feet away, without warning, according to the appellate ruling.
Ponder claimed Najera-Aguirre was facing him, but the coroner’s report found that Nejera-Aguirre had two shots in his back, suggesting he turned away from Ponder, the ruling said.
Three of Najera-Aguirre’s children sued Ponder and Riverside County in April, 2018, alleging they violated their father’s Fourth and 14th Amendment rights.
THE FOURTH AMENDMENT The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
“Defendant COUNTY was long aware of the propensity of their deputies to callously and recklessly use excessive force against members of the public and to engage in deceitful conduct,“ their complaint reads.
California Central District Judge Dolly Gee granted summary judgment on the claim against the county and on the 14th Amendment claim against Ponder, but denied summary judgment on the Fourth Amendment claim, which the appellate panel agreed with.
State protection from lawsuits
Qualified immunity, which prevents some lawsuits against state officers, exists “to safeguard government, and thereby to protect the public at large, not to benefit its agents,” the panel stated.
To determine qualified immunity, courts must ask whether there has been a violation of a constitutional right, and whether that right was clearly established at the time it was violated. If one of the two has not occurred, the case does not go to trial.
The 1985 case Tennessee v. Garner established that officers can use deadly force against someone who threatens an officer, or who has inflicted serious harm during a crime, but only if officers give a warning, if able.
Because Ponder did not give Najera-Aguirre a warning, and there was no evidence it was not feasible for him to do so, Ponder intruded on the deceased’s right to life, the panel found.
Since Najera-Aguirre was standing facing Ponder, according to Ponder, he was not escaping. The alleged crime of destroying property was severe, but it was disputed whether Najera-Aguirre was threatening anyone.
Ponder’s intrusion on Najera-Aguirre’s right to life was not objectively reasonable, the panel found.
Clearly established precedent
The panel leaned on recent court cases to prove that the law was clearly established against Ponder, in the second question regarding qualified immunity.
The 2013 cases Hayes v. County of San Diego and George v. Morris made clear to a reasonable officer that they cannot use deadly force against a non-threatening individual, even if the individual is armed, and the situation is volatile, the ruling says.
In Hayes, the court found that police used excessive force when they shot Hayes in his girlfriend’s home holding a knife pointed tip-down and standing about seven feet away. In that case, the court found that it was not clearly established that Hayes was threatening the officers, and that the officers did not warn Hayes.
In Morris, the court held it is unreasonable to shoot a domestic violence suspect who emerged from his home onto his porch with a pistol pointed down.
“Ponder’s response to these clearly established principles is to repeat his mantra that Najera posed an immediate threat to the officer or bystanders at the time of his death. But Ponder can neither rewrite the facts to his own liking nor ignore the disputed evidence,” the panel said.
Whether Najera-Aguirre did present a threat is up to the jury, but when accepting the facts favorable to the deceased, Ponder’s actions amount to a constitutional violation “beyond debate,” the panel said in conclusion.
Parties
California Central District Judge Dolly Gee presides over the trial case.
Ninth Circuit Judge M. Margaret McKeown wrote the opinion, which Ninth Circuit Judge Ronald Gould and United States Court of International Trade Judge Jane Restani joined.
Tony Sain of the Los Angeles office of Lewis Brisbois Bisgaard & Smith argued for Ponder in oral argument. Tori Bakken of the same office, and Eugene Ramirez, C. Craig Smith and Andrea Kornblau of Los Angeles’ Manning & Kass, Ellrod, Ramirez, Trester LLP also represent Ponder.
Dale Galipo and Hang Le of Woodland Hills’ Law Offices of Dale Galipo, and Christian Pereira and Ian Cuthbertson of Long Beach’s Pereira Law, represented Najera-Aguirre’s heirs.
Case number: 5:18-cv-00762.
Appellate number: 19-56462.
Read the complaint here.
Read Ponder’s and the county’s response here.
Read the ruling here.
