Ninth Circuit: No Immunity For Officer Who Shot Peaceful Protester In The Groin
When it comes to the Supreme Court-created (and diluted) qualified immunity doctrine, the Ninth Circuit leads the league in rejections. The Fifth Circuit is its polar opposite, more willing to forgive cops than uphold civil rights. This case would have been dead on arrival in the Fifth. But since it landed in the Ninth, the victim of excessive force, protester Derrick Sanderlin, will see his lawsuit move forward.
Like millions of other people, California resident Derrick Sanderlin participated in an anti-police violence protest prompted by the murder of Minnesota resident George Floyd by Minneapolis police officer Derek Chauvin. And, like many peaceful protesters demonstrating against police violence, his acts of protest were greeted with police violence.
While participating in what even San Jose police officers referred to as a peaceful" protest (although it did turn more damaging and violent later), Sanderlin had the misfortune of running into San Jose PD officer Michael Panighetti. This interaction was captured on the officer's body camera, which provides the narrative recounted by the Ninth Circuit Appeals Court in its decision [PDF].
The first part of the narrative, though, was provided by the officer during his testimony, something that details alleged actions that were not captured by his camera:
Panighetti testified in his deposition that as he approached the intersection of Santa Clara Street and 5th Street, he had been monitoring an individual wearing a San Francisco 49ers jersey who had been throwing objects at police officers and hiding behind corners. When they reached the intersection, Panighetti observed that individual in the 49ers jersey, along with another person, hiding behind the corner of a building. Panighetti claimed that he was able to continue to visually monitor the two subjects because the building was glass all around the first floor. Panighetti then explained that he saw those two subjects holding gallon paint cans, and he believed they were poised to throw the paint cans at police officers. At one point, the subjects pushed a dumpster into the intersection and attempted to hide behind it.
The plaintiff in this lawsuit was neither of the people the officer claimed he observed to be engaged in some anti-police violence of their own. It didn't matter. Sanderlin became the focus of violent reprisal simply because he temporarily stood in front of the officer. That encounter was captured on camera.
At that point, a man later identified as Sanderlin moved into the sidewalk while carrying a sign over his head. Panighetti claimed that Sanderlin purposefully placed himself in front of officers to block the two subjects holding paint cans and hiding behind the dumpster. In video footage captured by Panighetti's body-worn camera, Sanderlin is seen standing on the sidewalk holding a sign, and a dumpster is behind him. The video does not clearly show the two subjects allegedly holding paint cans that Panighetti describes, though there is clearly a chaotic scene unfolding around this encounter. In the video, Panighetti can be heard yelling to Sanderlin, I'm going to hit you, dude. You better move!" Sanderlin fails to immediately comply, continuing to stand in the sidewalk holding his sign over his head. After only a few seconds, Panighetti fires a 40mm foam baton at Sanderlin, striking him in the groin area. Sanderlin recoils from the impact and appears to take a few steps, shifting his weight between his feet in pain. He then limps out of the middle of the sidewalk, at which point he is no longer visible in the video footage.
Just because it was a less lethal" munition doesn't mean the round fired by the officer didn't do serious damage to Sanderlin. The full power blow from the 40mm baton round led to severe injuries that required emergency surgery.
The recording shows Panighetti ordering Sanderlin to move," coupled with an informal warning that the officer was planning to hit you, dude" if Sanderlin refused to comply. As the narrative notes, Sanderlin wasn't really given much chance to consider his options (i.e., whether or not the officer intended to strike him/whether or not he was obliged to comply with this vague order) much less comply before being shot by the officer.
Sanderlin testified he never heard an order to move. He also testified he had done nothing but peacefully protest and that his standing in front of the officer was nothing more than First Amendment activity, rather than the supposed covering up of criminal activity by other protesters behind him. And, according to Sanderlin's assertions, no officer offered to render aid as he lay in the street after being shot by Panighetti. Instead, it was his wife who discovered him some time later and took him to the hospital to be treated.
The lower court said qualified immunity did not cover the officer's actions. And, as can be determined from the narrative above, certain facts are still in conflict. The lower court said the officer's actions were a clear violation of rights. And with everything else still in dispute, the lawsuit needed to be placed in front of a jury.
The lower court's decision is affirmed by the Ninth Circuit. This needs to go to trial. Qualified immunity simply does not cover this apparent violation of Sanderlin's right to be free from excessive force deployments.
Then there's where Officer Panighetti chose to shoot Sanderlin - a move that directly contradicted his SJPD training and, at minimum, was a negligent use of force:
According to SJPD training materials, Less Lethal Impact munitions" like the 40mm foam baton Panighetti fired are used to: Disorient [and] Incapacitate . . . Injury should be expected." The training materials further reveal that projectiles that are fired to Center Mass' provide for the highest probability of causing immediate incapacitation, but also have the potential to cause serious injury or death." Panighetti himself explained that he was trained to use the 40mm launcher to incapacitate a suspect" posing a safety risk. The record also shows that the groin, where Sanderlin was shot, is considered an area of particularly high risk of injury, and the training materials specifically indicate that [t]he groin area should not be intentionally targeted."
Pretty damning, especially when considered in the context of the officer's assertions about his own training and expertise in hopes of explaining why it was so necessary to shoot one person in the crotch just so he could move past the peaceful protester to the less peaceful protesters allegedly standing behind him.
The Ninth says the question of whether this deployment of force was reasonable" is something a jury should decide. From what it has seen, it appears that it isn't. And that's the legal standard - one often ignored by federal courts at multiple levels: if there are any questions that can't be immediately answered by case law, it's up to a jury of the defendant's peers to answer those questions. The Ninth Circuit is simply doing what other courts often won't: allow juries to determine the winners and losers of civil rights cases, rather than just letting cops who don't feel like playing walk away from the damage they've caused to others. Panighetti will now need to convince a jury his actions were justified. Given the circumstances, it's seems unlikely that will happen.