Estate of Aguirre v. County of Riverside, No. 19-56462 (9th Cir. March 24, 2002) (J. Mc Keown)https://cdn.ca9.
The Riverside County Sheriff's Office received a report that a man was destroying property with a “bat like object” and threatening a woman with a baby.
Officer Ponder arrived in his squad car, got out and aimed his gun at Clemente Najera-Aguirre, demanding he drop the stick. He did not drop it. Ponder than used pepper spray but the spray only blew back at Ponder and did not affect Najera.
The evidence was in dispute as to what happened next. Some say Najera retrieved a bat from the bushes and “advanced quickly” towards Ponder. Others said stood still holding the stick pointed down. In any case Ponder shot and killed Najera six times without warning. The United States District Court for the Central District of California granted summary judgment on plaintiffs' 14th Amendment claims in favor of the county but denied Ponder's qualified immunity claim under the 4th Amendment. The United States Court of Appeals for the Ninth Circuit affirmed.
The factual inconsistencies presented preclude summary judgement on the qualified immunity claim and plaintiffs have presented facts, that if believed by a jury, would support a conclusion the shooting was not “objectively reasonable” and a 42 U.S.C. § 1983 claim should stand.
Deadly force is the most severe intrusion on FourthAmendment interests because an individual has a“fundamental interest in his own life” and because,once deceased, an individual can no longer standtrial to have his “guilt and punishment” determinedBefore using deadly force, law enforcementmust, “where feasible,” issue a warning. Id. at 11–12.Nothing in this summary judgment record suggests that itwas not “feasible” for Ponder to warn Najera before firinghis weapon six times.