CA9: Fact question shooting ptf’s decedent without warning who wasn’t posing threat was potentially unreasonable

The district court’s grant of qualified immunity is reversed. There are factual disputes for trial that the shooting death of plaintiff’s decedent was unreasonable because he presented no threat and was shot without warning. Calonge v. City of San Jose, 2024 U.S. App. LEXIS 13912 (9th Cir. June 7, 2024):

The panel noted that this case is unusual in that other officers on the scene contradicted key facts asserted by Officer Carboni. Construing the facts in the light most favorable to plaintiff Rosalina Calonge, the panel concluded that a reasonable jury could decide that Officer Carboni violated Calonge’s Fourth Amendment right to be free from excessive force. The panel resolved three disputed facts in plaintiff’s favor for purposes of the appeal: (1) Calonge was not drawing his gun or otherwise making a threatening gesture when Officer Carboni shot him; (2) there were no bystanders in Calonge’s vicinity when he was shot; and (3) officers did not instruct Calonge to get on the ground or otherwise stop. The totality of the circumstances did not justify deadly force. A reasonable jury could conclude that Calonge did not pose an immediate threat and was not fleeing arrest. Officers were not responding to the commission of a serious crime, and Calonge was not non-compliant, given the officers’ conflicting commands about what to do with the gun.

It would have been clear to a reasonable officer in Carboni’s position at the time that shooting Calonge was unlawful. It was clearly established that when a man is walking down the street carrying a gun in his waistband, posing no immediate threat, police officers may not shout conflicting commands at him and then kill him.