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Xavier Lopez can bring his civil rights case against Riverside Police Officer Evan Wright, who shot Lopez twice on Jan. 26, 2021, the Ninth Circuit Court of Appeal ruled in a split unpublished decision Dec. 5.

Wright attempted to have the case’s excessive force claim thrown out, arguing that his actions were protected under his conduct as a police officer.

Police officers cannot be sued by people they use force against if they have probable cause to believe that the person poses a significant threat of death or serious injury.

Lopez was not a danger to Wright at the time Wright shot him, so he did not qualify to have the case thrown out, the Ninth Circuit’s majority ruling said.

A dissent written by Ninth Circuit Judge Gabriel Sanchez argued that Lopez was known to be dangerous, and that the excessive force claim should be thrown out. According to the dissent, Wright was in a task force that apprehended high-risk felonies.

Lopez had evaded arrest the prior week after a vehicle chase. He had past convictions for several felonies, and had brandished a gun on his ex-girlfriend. Police set up surveillance near the ex-girlfriend’s home with the intent to arrest Lopez.

On Jan. 26, 2021, Wright responded to a police dispatch call, according to body camera footage recounted in the dissent.

“Hey Xavier, it’s the cops, you gotta take your hands out of your pockets bro, hands up, hands up,” Wright said as he exited his police car. Lopez stood ten feet away from Wright. Four seconds after he began exiting his car, Wright had his gun pointed at Lopez, and Lopez appeared to be reaching into his coat. Wright advanced toward Lopez.

Five seconds after Wright exited his car, Lopez withdrew a small black object from his coat—then pushed it back in.

Seven seconds after Wright exited his car, both of Lopez’s hands are empty, completely visible and above his head, and Wright fires two shots at Lopez.

Ten seconds after Wright began exiting his car, Wright said that Lopez had a gun. A gun was found in Lopez’s possession within the next minute. Lopez does not dispute that he had a loaded gun at the time.

By precedent, the Ninth Circuit must view the facts in favor of Lopez’s case when it was making this decision.

The appellate ruling agreed with the District Court’s ruling that Lopez was not a threat to Wright at the moment he was shot.

“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 ruling said.

The ruling ended by saying that they did not pass judgment on Wright, but that a jury should decide the case.

“As a final note, the Court recognizes that such encounters are tense and happen fast, and they must leave all participants riddled with indecision. Here, less than seven seconds elapsed between the time Officer Wright issued his first order and the time he fired his first shot. 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,” the ruling said.


Sanchez said that a reasonable fact finder could conclude that Wright used excessive force—but that Lopez failed to clearly establish that lethal force was unreasonable during the specific circumstances of the case.

“Mr. Lopez has not identified a case where we, or the Supreme Court, held that an officer who sees a suspect make a movement toward what the officer reasonably suspects is a gun must wait before resorting to lethal force. No such case exists,” Sanchez wrote.

Instead, case law is clear that a police officer’s use of deadly force is appropriate when a person reaches for a gun, Sanchez argued.

Case information

California Central District Judge Otis Wright presides over the case.

Ninth Circuit Judge Salvador Mendoza Jr. and California Northern District Judge James Donato agreed in the majority.

Case No. 5:21-cv-02140

Appellate Case No. 22-55723

Read the appellate ruling here.

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