Riverside Sheriff’s Sgt. Dan Ponder did not have legal immunity when he shot and killed Clemente Najera-Aguirre, the Ninth Circuit Court of Appeal ruled March 11.
Ponder shot Najera-Aguirre near Heald Avenue in Lake Elsinore on April 15, 2016, according to the federal complaint filed by Najera-Aguirre’s family.
Najera-Aguirre’s family won a $10 million case against Ponder on April 26, 2023.
Sgt. Wenndy Brito-Gonzalez, speaking for the Sheriff’s Office, confirmed March 24 that Ponder’s employment with the department continues.
The shooting
Ponder had responded to reports that someone in Lake Elsinore was destroying property with a bat, and had threatened a woman who had a baby.
Ponder had come across Najera-Aguirre, who had a stick. Najera-Aguirre did not drop his stick when directed to. Ponder tried to pepper spray Najera-Aguirre, but the spray flew back in his own face.
Witness testimony conflicted about what happened next. According to some witnesses, Najera-Aguirre approached Ponder with a bat raised, but according to others, Najera-Aguirre stood still with a stick pointed down.
Najera-Aguirre was 15 feet away when he was shot. Ponder said Najera-Aguirre faced him during the shooting, but a coroner’s report found that Najera-Aguirre died from two shots to his back, the ruling said.
Qualified immunity
Ponder claimed that Clemente Najera-Aguirre posed a threat to Ponder and others, justifying his shots under the principle of qualified immunity.
The Ninth Circuit had already ruled in a previous appeal brought by Ponder that he did not have qualified immunity.
“We held (in the earlier appeal) that it was clearly established law that killing a suspect who poses no immediate threat to an officer or others violates the suspect’s Fourth Amendment rights,” the March 11 ruling says.
In the verdict, the jury also ruled that Ponder did not have immunity.
The appeal
The Ninth Circuit Court of Appeal said there was no interpretation under which Najera-Aguirre would have been a danger to others, and that Ponder’s changing testimony invalidated his testimony.
The court has previously held that excessive force is used when officers without warning shoot and kill a person with a knife, who was not threatening them, and who was roughly seven feet away from them, the ruling said.
“Virtually no evidence suggested that Najera presented any threat to others at the time of the shooting. At that point, Najera was even further away from the bystanders than he was from Ponder,” the ruling continued.
“It is also clearly established law that a volatile situation does not, on its own, warrant deadly force,” the ruling said.
The ruling continued to question Ponder’s credibility.
“While Ponder testified that Najera-Aguirre posed a threat, the jury had good reason to doubt his testimony. Again and again, Ponder’s credibility was challenged at trial. For example, Ponder claimed he was aware when responding to the call that the suspect had threatened a woman and her baby, but that information was not audibly broadcast over the dispatch radio. Ponder was recalled and impeached concerning his knowledge before arriving on scene, and the district court judge issued a curative instruction to the jury on this issue. Ponder also claimed that Najera charged him, but the trajectory of the shot to Najera’s chest suggested he was not tilted or canted forward at the time the first bullet struck but rather was ‘virtually straight up and down.’ This suggested a slower advance akin to Hayes ‘walking towards the deputies,’” the ruling says.
Ninth Circuit Judge M. Margaret McKeown wrote the ruling. Ninth Circuit Judge Ronald M. Gould and Court of International Trade Judge Jane Restani joined.
Case No. 23-55718
Read the ruling here.
Read our previous coverage:
Family gets $10 million after verdict in fatal Riverside sheriff’s shooting
Sheriff’s sergeant’s immunity defense thrown out in appeal in fatal Lake Elsinore OIS case
