Schmidt, Sethi & Akmajian Blog

42 U.S.C. § 1983 Claim Arising Out of Police Shooting

Posted by Ted A. Schmidt | Apr 04, 2022 | 0 Comments

Estate of Aguirre v. County of Riverside, No. 19-56462 (9th Cir. March 24, 2002) (J. Mc Keown)

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 Fourth
Amendment interests because an individual has a
“fundamental interest in his own life” and because,
once deceased, an individual can no longer stand
trial to have his “guilt and punishment” determined
Before using deadly force, law enforcement
must, “where feasible,” issue a warning. Id. at 11–12.
Nothing in this summary judgment record suggests that it
was not “feasible” for Ponder to warn Najera before firing
his weapon six times.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Our team works together - for you!

Our award-winning lawyers are backed by a talented, caring team of legal professionals, paralegals, bilingual assistants, notaries, and others - all dedicated to you, your case, and the compensation you deserve.

No fees and no costs until we win.

As such we always have your case and your best interest in mind. When you win, we win too by providing the best legal care possible.

Thorough investigation and preparation.

We tirelessly and thoughtfully prepare every case we represent as though it was going to trial. This lets insurance companies know that we are a force to be reckoned with. As such, we settle successfully 98% of the time.