In the summer of 2020, Derrick Sanderlin attended a protest in San Jose, California, following the death of George Floyd. During the protest, Officer Michael Panighetti shot Sanderlin in the groin with a 40mm foam baton round. Sanderlin sued Panighetti, claiming that the use of force was retaliatory and excessive, violating his First and Fourth Amendment rights. Panighetti sought qualified immunity, but the district court denied his motion, finding that there were genuine disputes of material fact about whether Panighetti’s actions violated Sanderlin’s clearly established rights. The court’s decision was affirmed on appeal.
On May 29, 2020, a protest began peacefully at San Jose City Hall but later escalated. Officer Panighetti arrived around 3:30 p.m. with a 40mm launcher. Under the existing San Jose Police Department policy, officers could use foam baton rounds against individuals posing a threat. As the protest continued, Panighetti claimed he saw two individuals holding paint cans and believed they were about to throw them at officers. When Sanderlin, holding a sign, appeared to block these individuals, Panighetti warned him to move and then fired a foam round at him after a few seconds.
Sanderlin and his wife, who were at the protest, claimed he was standing peacefully and not posing a threat when shot. After the impact, Sanderlin suffered severe injuries, requiring emergency surgery.
Sanderlin filed a lawsuit against Panighetti, alleging that the officer’s use of force was retaliatory and excessive, violating his constitutional rights. Panighetti argued that his actions were not retaliatory, did not amount to a “seizure” under the Fourth Amendment, and were protected by qualified immunity. However, the district court found that there was enough evidence for a jury to consider whether Panighetti acted with retaliatory intent and whether his use of force was excessive, ultimately denying him qualified immunity. Panighetti appealed the decision, but it was affirmed.
Qualified immunity protects an official from liability in a civil suit unless the plaintiff can show that the official’s actions violated a constitutional right and that this right was “clearly established” at the time. To overcome summary judgment, Sanderlin must meet both of these criteria.
For his First Amendment claim, Sanderlin needs to prove three elements: (1) he was engaged in protected activity; (2) Panighetti’s actions would deter a reasonable person from continuing that activity; and (3) the protected activity was a substantial factor in Panighetti’s conduct. Panighetti argues that Sanderlin was obstructing officers, which isn’t a protected activity. However, since facts must be viewed in Sanderlin’s favor at this stage, a jury could find that Sanderlin was peacefully protesting, a protected activity. If a jury finds that Panighetti’s actions lacked legitimate justification, it could conclude his actions were retaliatory, violating clearly established law that police cannot retaliate against protected speech.
For the Fourth Amendment claim, the court must decide if Sanderlin was “seized.” A seizure occurs when an officer’s actions restrict a person’s freedom of movement. The use of force, such as firing a foam baton round, qualifies as a seizure if it restrains someone’s ability to move. Sanderlin argues that he was unable to move after being shot, which the video footage partially supports. The court concludes that a reasonable jury could find that Panighetti intended to restrain Sanderlin, regardless of his stated intent to disperse him. Thus, firing the round at Sanderlin could be seen as a seizure under the Fourth Amendment.
Since the Ninth Circuit determined that Sanderlin was “seized” under the Fourth Amendment, Ninth Circuit now needs to decide if that seizure was reasonable. The court uses a balance test, weighing the severity of the force used against the government’s interest in using that force. Generally, this is a question for the jury, as “reasonableness” isn’t easily defined.
The force used by Panighetti, a 40mm launcher, is a strong method of force capable of causing serious injury or death. Given the severity of Sanderlin’s injuries, this represents a significant intrusion on his rights that must be justified by an equally serious government interest.
To assess the government’s interest, the court looks at three factors: (1) the severity of the crime, (2) whether Sanderlin posed an immediate threat, and (3) if he was resisting arrest. At the time of the incident, Sanderlin wasn’t committing a crime, wasn’t threatening officer safety, and wasn’t resisting or fleeing. While officers have a legitimate interest in maintaining safety during chaotic situations, Sanderlin claims he was peacefully holding a sign with his hands up, not interfering with police operations.
Panighetti argues that Sanderlin posed a threat by obstructing the officers’ ability to deal with other suspects. However, this relies on Panighetti’s version of events, which is disputed. Moreover, the cases Panighetti cites to justify his use of force don’t match the circumstances here. Unlike those cases, Sanderlin argues that he did not hear any commands or interfere with the officers.
Ultimately, the reasonableness of Panighetti’s actions will depend on how the jury views the video evidence and whether it finds Panighetti’s testimony credible. If the jury doubts Panighetti’s account or believes he had less intrusive options, they could find the use of force unreasonable. Thus, the court agrees that there’s a genuine issue to be tried regarding whether Sanderlin’s Fourth Amendment rights were violated.
Now let’s look at the second part of qualified immunity: whether the violated right was “clearly established.” This means the court has to determine if the law was clearly established at the time of the incident, so that the officer would have fair notice that their actions were unlawful. We can’t use legal developments that occurred after the fact to decide what the officer should have known.
In this case, we need to determine if, at the time of the incident, Panighetti’s use of force was excessive under clearly established law. A similar case, Nelson v. City of Davis, involved police using projectiles against non-threatening students. The court found that firing projectiles at non-threatening individuals was unreasonable force under the Fourth Amendment, which should have put Panighetti on notice that his use of force could be considered excessive.
Additionally, the decision in Nelson relied on the earlier case Deorle, where the court held that it is objectively unreasonable for an officer to use force, like shooting a projectile, against an unarmed individual who poses no threat, has committed no serious offense, and was not warned about the use of force.
However, the more complicated question is whether the court can still rely on Nelson to say that Panighetti’s actions were a “seizure” under the Fourth Amendment, given a later Supreme Court decision (Torres) that slightly narrowed the definition of a seizure. Despite this, the court concluded that relying on Nelson is proper because it was clearly established that using a projectile to incapacitate someone constitutes a seizure.
Qualified immunity is based on the idea of giving officers prior notice that their actions are unlawful, so subsequent legal changes (favorable or not) can’t be used to establish whether the law was clearly established at the time of the conduct. If the law changes later, it doesn’t change what the officer could have reasonably known at the time.
Given the precedents set by Nelson and Deorle, the court found that Panighetti should have known his use of force was unreasonable. Therefore, the court affirmed the denial of summary judgment on qualified immunity grounds.
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