FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULETTE SMITH, individually and 

as Successor in Interest to Albert 

Dorsey, deceased, 

Plaintiff-Appellee,

 v. 

EDWARD AGDEPPA, an individual, 

Defendant-Appellant,

and 

CITY OF LOS ANGELES, a 

municipal entity; DOES, 1 through 10, 

Defendants.

No. 20-56254 

D.C. No. 

2:19-cv-05370-

CAS-JC 

OPINION

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted March 16, 2022

San Francisco, California

Filed December 30, 2022
2 SMITH V. AGDEPPA

Before: Morgan Christen and Daniel A. Bress, Circuit 

Judges, and Gary Feinerman,* District Judge.

Opinion by Judge Christen; 

Dissent by Judge Bress 

SUMMARY**

The panel affirmed the district court’s order denying, on 

summary judgment, qualified immunity to a police officer in 

an action brought pursuant to 42 U.S.C. § 1983 alleging 

defendant used unreasonable deadly force when he shot and 

killed Albert Dorsey during a failed arrest in the men’s 

locker room of a gym. 

Before the district court, defendant Officer Agdeppa 

maintained that he killed Dorsey because Dorsey was 

pummeling Agdeppa’s partner, and Agdeppa feared 

Dorsey’s next blow would kill her. Agdeppa also claimed 

that he yelled “stop” before shooting, but no such warning 

could be heard on the officers’ body-cam recordings. 

The district court properly denied Agdeppa’s request for 

qualified immunity for two reasons. First, the district court 

recognized that a reasonable jury could reject the police 

officers’ account of the shooting because there were 

significant discrepancies between their versions of events 

* The Honorable Gary Feinerman, United States District Judge for the 

Northern District of Illinois, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
SMITH V. AGDEPPA 3

and other evidence in the record. Second, this court has long 

held that the Fourth Amendment requires officers to warn 

before using deadly force when practicable. The defense 

cannot argue that it was not possible for Agdeppa to give 

Dorsey a deadly force warning because Agdeppa’s sworn 

statements show that he had time to tell Dorsey to 

“stop.” The encounter lasted approximately four minutes 

after the officers first attempted to handcuff Dorsey, and the 

officers tased Dorsey at least five times during that 

interval. Agdeppa never claimed that he warned Dorsey that 

he would switch from using his taser to using his firearm if

Dorsey did not submit to being handcuffed, nor did he argue 

that it was impracticable to do so. The district court 

correctly ruled that a jury could decide that Agdeppa’s use 

of deadly force violated clearly established law.

Dissenting, Judge Bress stated that the two police 

officers in this case found themselves in a violent 

confrontation with a large, combative suspect, who ignored 

their repeated orders to stop resisting and failed to respond 

to numerous taser deployments. After the suspect’s assault

on the officers intensified and he wrested one of the officers’ 

tasers into his own hands, one officer shot the suspect to end 

the aggression. The split-second decision officers made here 

presented a classic case for qualified immunity. The 

majority’s decision otherwise was contrary to law and 

requires officers to hesitate in situations in which decisive 

action, even if leading to the regrettable loss of human life, 

can be necessary to protect their own.
4 SMITH V. AGDEPPA

COUNSEL

Kevin E. Gilbert (argued) and Carolyn M. Aguilar, Orbach 

Huff & Henderson LLP, Pleasanton, California; for 

Defendants-Appellant. 

Edward M. Lyman III (argued), Brian T. Dunn, and James 

Bryant, The Cochran Firm, Los Angeles, California; Megan 

R. Gyongyos, Carpenter Zuckerman & Rowley LLP, 

Beverly Hills, California; for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge: 

Edward Agdeppa, a police officer in Los Angeles, shot 

and killed Albert Dorsey during a failed arrest in the men’s 

locker room of a gym. Before the district court, Officer 

Agdeppa maintained that he killed Dorsey because Dorsey 

was pummeling Agdeppa’s partner, and Agdeppa feared 

Dorsey’s next blow would kill her. Agdeppa also claimed 

that he yelled “stop” before shooting, but no such warning 

can be heard on the officers’ body-cam recordings. Dorsey’s 

mother, Paulette Smith, sued Agdeppa for his allegedly 

unreasonable use of deadly force. The district court denied 

Agdeppa’s motion for summary judgment on qualified 

immunity grounds, and Agdeppa timely appealed.

The district court properly denied Agdeppa’s request for 

qualified immunity for two reasons. First, the district court 

recognized that a reasonable jury could reject the officers’ 

account of the shooting because there were significant 

discrepancies between their versions of events and other 
SMITH V. AGDEPPA 5

evidence in the record. Second, we have long held that the 

Fourth Amendment requires officers to warn before using 

deadly force when practicable. See, e.g., Gonzalez v. City of 

Anaheim, 747 F.3d 789, 794 (9th Cir. 2014) (en banc); 

Harris v. Roderick, 126 F.3d 1189, 1201, 1204 (9th Cir. 

1997). The defense cannot argue that it was not possible for 

Agdeppa to give Dorsey a deadly force warning because 

Agdeppa’s sworn statements show that he had time to tell 

Dorsey to “stop.” The encounter lasted approximately four 

minutes after the officers first attempted to handcuff Dorsey, 

and the officers tased Dorsey at least five times during that 

interval. Agdeppa never claimed that he warned Dorsey that 

he would switch from using his taser to using his firearm if 

Dorsey did not submit to being handcuffed, nor did he argue 

that it was impracticable to do so. The district court correctly 

ruled that a jury could decide Agdeppa’s use of deadly force 

violated clearly established law. We therefore affirm the 

district court’s order denying summary judgment. 

I.

On the morning of October 29, 2018, Agdeppa and his 

partner Officer Perla Rodriguez responded to a Hollywood 

gym to investigate calls that someone was trespassing and 

engaging in disruptive conduct. Both officers activated their 

body-worn cameras, and followed a gym employee into the 

men’s locker room. The staff member who met the officers 

told them, “We have a gentleman who is a little bit irate and 

he’s not listening. He’s already hurting a few members and 

he’s also assaulted security as well.”

The officers encountered Dorsey in the shower area of 

the locker room, where they spent several minutes ordering 

Dorsey to get dressed, to turn off his music, and to leave the 

gym. In response, Dorsey ignored the officers, walked back 
6 SMITH V. AGDEPPA

and forth across the room to look at himself in the mirror, 

slowly dried his body with a towel, and danced to the music 

on his phone, raising his middle finger toward Agdeppa.

Agdeppa and Rodriguez then attempted to handcuff stillnaked Dorsey, who resisted the officers’ attempts by tensing 

up and pulling his arms away. Agdeppa managed to place 

one handcuff onto Dorsey’s right wrist, but the body-cam 

videos show that, for roughly a minute and twenty seconds, 

Dorsey used his size to thwart the smaller officers’ attempts 

to handcuff him. As Dorsey resisted, both officers’ bodycams were knocked from their uniforms onto the lockerroom floor. While the next three-or-so minutes are not 

visible on video, the body-cams continued to record audio.

Agdeppa alleges that after the body-cams fell to the 

floor, the locker room struggle escalated and turned violent. 

Agdeppa and Rodriguez assert that Dorsey struck Rodriguez 

in the face with his elbow as he pulled away from the 

officers, and Agdeppa warned Dorsey that he would tase him 

if he did not submit to handcuffing. But Dorsey continued 

to resist, and in the officers’ telling, he began swinging at the 

officers after Rodriguez fired the darts from her taser at 

Dorsey’s back.1 Both officers also attested that they used 

their tasers in “stun” mode several times as Dorsey became 

increasingly aggressive. In his deposition testimony and 

affidavit submitted in support of his summary judgment 

motion, Agdeppa alleged that Dorsey repeatedly struck him 

on the face and knocked him backward into a wall, 

disorienting him and causing him to drop his taser. 

1 The autopsy reported a single taser dart wound in Dorsey’s midline 

central back. 
SMITH V. AGDEPPA 7

Agdeppa claims that as he recovered from his 

disorientation, he witnessed Dorsey “straddling” Rodriguez 

and “pummeling” her head and face with a “flurry of 

punches” as she lay on the floor in a fetal position. Agdeppa 

alleged that Dorsey appeared to be trying to kill Rodriguez 

in a “vicious[] and violent[]” attack and he “believed that the 

next punch would likely kill her.” In his affidavit, Agdeppa 

stated that he “unholstered and drew [his] service weapon” 

and “gave Dorsey a verbal warning, stating words to the 

effect that Dorsey needed to stop.” Agdeppa alleged that 

Dorsey instead “continued to pummel” Rodriguez with her 

taser in his hand, so from a distance of six-to-eight feet away, 

Agdeppa fired five shots to stop Dorsey, who “began to fall 

backwards and away” from Rodriguez as Agdeppa fired the 

final shot. 

Smith disputes Agdeppa’s account of the shooting. 

Dorsey cannot testify because he is dead, but in its decision 

denying summary judgment, the district court identified 

several sources of evidence that conflict with the officers’ 

version of events. 

The district court explained, “a rational fact finder could 

find that both officers’ body-worn camera footage [is] 

consistent with [plaintiff’s] account, rather than Agdeppa’s.” 

Video from the officers’ body-cams shows that during the 

first several minutes of the encounter, Dorsey refused to 

comply with the officers’ instructions to get dressed, leave 

the locker room, and submit his arms for handcuffing. After 

the video ends, the audio-only portion of the body-cam 

recording cannot shed any light on where Agdeppa and 

Dorsey were standing or what they were doing, but banging 
8 SMITH V. AGDEPPA

sounds and the sound of tasers deploying are audible.2

Agdeppa claims that he yelled for Dorsey to “stop” before 

escalating from his taser to his gun, but as the district court 

recognized, that warning cannot be heard on the audio.

Bystander-witness statements also contradicted 

Agdeppa’s story. The gym’s security guards were present 

during part of the encounter and they provided statements 

for the Los Angeles Board of Police Commissioners’ 

internal investigation of the shooting. The Commissioners 

found the officers’ tactics warranted a finding of 

Administrative Disapproval, and that Agdeppa’s use of 

deadly force was unreasonable. The officers’ actions were 

deemed inconsistent with the Department’s deadly force 

policy because the officers’ “inappropriate tactical decisionmaking” and “series of substandard tactical decisions” 

prevented the officers from “respond[ing] effectively using 

non-lethal and less-lethal force.” The Commissioners’ 

report did not attach the guards’ statements, but the district 

court correctly recognized from the report’s narrative that 

one of the guards attested that Dorsey was holding 

Agdeppa’s arm when the shots were fired. The district court 

recognized that “if introduced at trial, this evidence would 

impeach Agdeppa’s credibility because, according to 

Agdeppa, he fired from six to eight feet away as Dorsey 

stood or hunched over Rodriguez.”

The security guards’ accounts differed from the officers’ 

in several respects, including the number of shots that 

2 The dissent purports to know what is occurring in the moments leading 

up to the shooting, attributing “pained groaning” and “grunting” to the 

officers. The district court made no findings of this sort and, absent 

speculation, grunting sounds do not tell us what was occurring before 

Agdeppa drew his firearm.
SMITH V. AGDEPPA 9

Agdeppa fired, the number of volleys that Agdeppa fired, 

whether Dorsey reached for Agdeppa’s firearm, and whether 

Dorsey was holding Agdeppa’s wrist until after the second 

shot was fired. To be sure, the guards described a struggle 

between Dorsey and the officers, but the question for the 

fact-finder will be what happened in the moments before the 

shooting, and as the Commissioners’ report noted, the gym’s 

surveillance video shows that one of the guards was not 

present in the locker room at the time of the shooting and the 

other was “in the process of exiting the locker room.”3

Significantly, the Commissioners recognized that the 

officers’ actions are not to be judged with 20/20 hindsight, 

their report incorporated the framework for evaluating 

excessive force cases set out in Graham v. Connor, 490 U.S. 

386 (1989), along with Departmental policies, and it 

concluded that Agdeppa’s use of lethal force was 

3 The Commissioners’ report is in summary form and “does not reflect 

the entirety of the extensive investigation.” It refers to other evidence 

and witness statements, but they are not attached to the report and do not 

appear to have been part of the district court’s record. The vantage point 

from which the guards made their detailed observations cannot be

determined on our record. On remand, the parties will have an 

opportunity to engage in discovery. Whether the guards’ testimony is 

ultimately deemed credible will be a question for the fact-finder. 
10 SMITH V. AGDEPPA

unreasonable.4 Dorsey resisted arrest, but nothing suggested 

that he had committed a serious crime before the officers 

physically engaged with him in an attempt to apply 

handcuffs. The district court recognized that there was no 

danger he was concealing a weapon because he was not 

wearing any clothing, and he did not present a flight risk. 

The Commissioners concluded that Agdeppa’s use of deadly 

force was unreasonable because after a struggle ensued, 

“there was no exigency that required the officers to stay 

physically engaged with [Dorsey]”:

Once the officers had initiated physical 

contact with [Dorsey], it was readily apparent 

that [Dorsey’s] greater size and strength, in 

concert with his noncompliant behavior, 

would make it difficult, if not impossible, for 

the officers to accomplish their goal of 

handcuffing him. At that time during the 

incident, there was no exigency that required 

the officers to stay physically engaged with 

[Dorsey]. Nevertheless, the officers did not 

take the opportunity to disengage from their 

4 The Commissioners cited an oft-quoted passage from Graham:

The reasonableness of a particular use of force must be 

judged from the perspective of a reasonable officer on 

the scene, rather that with the 20/20 vision of 

hindsight. [. . .] The calculus of reasonableness must 

embody allowance for the fact that police officers are 

often forced to make split-second judgments—in 

circumstances that are tense, uncertain and rapidly 

evolving—about the amount of force that is necessary 

in a particular situation. 

Graham, 490 U.S. at 396–97.
SMITH V. AGDEPPA 11

physical struggle and redeploy in order to 

allow for the assembly of sufficient 

resources. Rather, the officers stayed 

engaged as the situation continued to 

escalate, culminating in injurious assaults on 

both officers and the ultimate use of deadly 

force by Officer [Agdeppa].

The record also contains physical evidence that conflicts 

with Agdeppa’s story. Agdeppa argued that it was necessary 

to shoot because Dorsey had “inflicted serious injuries on 

both officers” and he “was striking Rodriguez with his fist 

while turning her Taser on her.” But the district court’s order 

denying summary judgment observed Smith’s argument that 

post-incident photographs showed an “unscathed” 

Rodriguez and that the officers’ medical records reflected 

only minor injuries very different from the type that one 

would expect if Dorsey had been pummeling Rodriguez in 

the way Agdeppa described. The district court correctly 

rejected Agdeppa’s contrary arguments that bruising and 

other injuries were not visible in the photos as “unavailing” 

because they impermissibly attacked the weight of the 

evidence at the summary judgment stage.

An autopsy report’s description of the bullet trajectories 

and the fact that one witness reported Dorsey was holding 

Agdeppa’s arm when he was shot also undermine Agdeppa’s 

description that Dorsey was standing over Rodriguez as she 

laid on the floor, that he was straddling her and punching 

her, and that Agdeppa feared the next blow might kill his 

partner. The autopsy report indicates that several bullets 

traveled through Dorsey’s body from right to left in a 

downward direction, and one of the bullets traveled through 

Dorsey’s stomach from left to right in an upward direction. 
12 SMITH V. AGDEPPA

Witness F told the police investigators that after he was shot 

the second time, Dorsey let go of Agdeppa’s wrist, began to 

walk toward Agdeppa, and that Agdeppa then fired two more 

times. The dissent decides the Commissioners’ report must 

contain a typo, and that it must have intended to refer to 

Dorsey holding onto Rodriguez’s wrist. But we are not free 

to speculate about whether there are errors in the record. As 

the district court correctly determined, if deemed credible by 

the fact-finder, this evidence would allow a jury to question 

Agdeppa’s credibility because he claimed that he shot 

Dorsey from a distance of six-to-eight feet while Dorsey was 

standing over Rodriguez.5

On this conflicting record, the district court correctly 

concluded that “a jury could find that a reasonable officer in 

Agdeppa’s position would not have believed that Rodriguez 

or anyone else was in imminent danger and, thus, would 

have understood that his use of deadly force violated 

plaintiff’s Fourth Amendment rights.” It remains to be seen 

whether Smith’s claims can be established at trial, but 

pervasive disputes of material fact make this case a textbook 

example of an instance in which summary judgment was 

improper. 

II.

We review de novo the district court’s decision on 

summary judgment that an officer was not entitled to 

qualified immunity. Gordon v. Virtumundo, Inc., 575 F.3d 

5 The dissent mistakenly argues that the district court “discounted this 

argument earlier in its decision.” In fact, the district court observed that 

it could not make a finding “as to how Dorsey was positioned relative to 

each gunshot.” But the district court recognized that a fact-finder could 

rely upon inconsistencies between Agdeppa’s description and the 

physical evidence to impeach Agdeppa’s credibility.
SMITH V. AGDEPPA 13

1040, 1047 (9th Cir. 2009). We view the facts in the light 

most favorable to the plaintiff. Est. of Lopez ex rel. Lopez v. 

Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).

An order denying summary judgment is not usually an 

immediately appealable final decision, but “that general rule 

does not apply when the summary judgment motion is based 

on a claim of qualified immunity” because “pretrial orders 

denying qualified immunity generally fall within the 

collateral order doctrine.” Plumhoff v. Rickard, 572 U.S. 

765, 771–72 (2014). The scope of our review in these 

interlocutory appeals is limited to the “purely legal . . . 

contention that [an officer’s] conduct ‘did not violate the 

[Constitution], and in any event, did not violate clearly 

established law.’” Foster v. City of Indio, 908 F.3d 1204, 

1210 (9th Cir. 2018) (quoting Plumhoff, 572 U.S. at 773). 

Accordingly, those portions of the district court’s order 

determining questions of “‘evidence sufficiency,’ i.e., which 

facts a party may, or may not, be able to prove at trial . . . 

[are] not appealable” until after final judgment. Johnson v. 

Jones, 515 U.S. 304, 313 (1995). This rule forecloses 

interlocutory review of any “fact-related dispute about the 

pretrial record, namely, whether or not the evidence in the 

pretrial record was sufficient to show a genuine issue of fact 

for trial.” Est. of Anderson v. Marsh, 985 F.3d 726, 731 (9th 

Cir. 2021) (quoting Foster, 908 F.3d at 1210). 

When the district court denies qualified immunity and 

“does not explicitly set out the facts that it relied upon, we 

undertake a review of the pretrial record only to the extent 

necessary to determine what facts the district court, in the 

light most favorable to the nonmoving party, likely 

assumed.” Est. of Lopez, 871 F.3d at 1007–08 (quoting 

Watkins v. City of Oakland, 145 F.3d 1087, 1091 (9th Cir. 

1998)). We then examine: (1) whether the facts, viewed in 
14 SMITH V. AGDEPPA

the light most favorable to the plaintiff, show that the 

officer’s conduct violated a constitutional right; and (2) 

whether the right in question was “clearly established” at the 

time of the officer’s action. Tolan v. Cotton, 572 U.S. 650, 

655–56 (2014). If we answer either question in the negative, 

the officer is entitled to qualified immunity. 

III.

A.

Smith argues that Agdeppa’s use of deadly force was 

objectively unreasonable and violated Dorsey’s clearly 

established Fourth Amendment rights. Courts assess 

whether an officer’s use of force was objectively reasonable 

by weighing “the severity of the crime at issue, whether the 

suspect poses an immediate threat to the safety of the officers 

or others, and whether he is actively resisting arrest or 

attempting to evade arrest by flight.” Graham, 490 U.S. at 

396. The Graham factors are not “considered in a vacuum,” 

but must be weighed “in relation to the amount of force used 

to effect [the] particular seizure.” Smith v. City of Hemet, 

394 F.3d 689, 701 (9th Cir. 2005) (en banc) (quoting Chew 

v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). We take the 

perspective of the officer on the scene without the benefit of 

20/20 hindsight. Graham, 490 U.S. at 396–97. Because 

deadly force involves a serious intrusion on Fourth 

Amendment rights, deadly force is reasonable only if the 

officer has probable cause to believe the suspect poses an 

immediate and significant threat of death or serious physical 

injury to the officer or others. Gonzalez, 747 F.3d at 793 

(quoting Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994));

see Tennessee v. Garner, 471 U.S. 1, 11 (1985). We have 

also repeatedly stated that an officer must give warning 

before using deadly force “whenever practicable.” 
SMITH V. AGDEPPA 15

Gonzalez, 747 F.3d at 794 (quoting Harris, 126 F.3d at 

1201). 

Deadly force cases present additional, heightened 

challenges because defendant officers are often the only 

surviving eyewitnesses. See, e.g., Gonzalez, 747 F.3d at 

794; Scott, 39 F.3d at 915. For this reason, we have 

explained that summary judgment should be granted 

“sparingly” in deadly force cases and courts must take 

special care to “ensure that the officer is not taking 

advantage of the fact that the witness most likely to 

contradict his story—the person shot dead—is unable to 

testify.” Gonzalez, 747 F.3d at 795 (quoting Scott, 39 F.3d 

at 915); see Newmaker v. City of Fortuna, 842 F.3d 1108, 

1116 (9th Cir. 2016) (explaining that summary judgment is 

not appropriate in a deadly force case if the plaintiff’s claim 

turns on an officer’s credibility, and credibility is genuinely 

in doubt). 

When other evidence in the record, “such as medical 

reports, contemporaneous statements by the officer, the 

available physical evidence, and any expert testimony 

proffered by the plaintiff” is inconsistent with material 

evidence offered by the defendant, “[q]ualified immunity 

should not be granted.” Newmaker, 842 F.3d at 1116 

(alterations, quotation marks, and citation omitted). In such 

cases, district courts must allow juries to consider the 

evidence that contradicted the officers’ version of events, 

and decide whether they were persuaded by the officers’ 

testimony. See, e.g., Bator v. State of Hawai’i, 39 F.3d 1021, 

1026 (9th Cir. 1994) (“At the summary judgment stage, . . . 

the district court may not make credibility determinations or 

weigh conflicting evidence.”). 
16 SMITH V. AGDEPPA

Our case law bears out that we have consistently applied 

these standards. In Newmaker, we rejected a request for 

qualified immunity based on evidence that contradicted the 

officers’ account of a fatal shooting. 842 F.3d at 1110. 

There, as here, the crux of the case turned on what the jury 

would decide about what happened in the moments before 

the shooting. The lead-up to the shooting in Newmaker 

mirrors this case in pertinent respects: Newmaker was nearly 

naked when he was shot, he refused to comply with officer 

instructions, and he physically resisted officers after they 

tased him in “drive” stun and “dart” mode. Id. at 1111–12. 

The officer who shot and killed Newmaker alleged that 

Newmaker grabbed another officer’s baton, stood up, and 

swung it “violently” and “aggressively” at the officer’s head. 

Id. at 1112. The defendant claimed that he warned 

Newmaker to drop the baton before shooting him from a 

standing position. Id. According to the officer, Newmaker 

was also standing, but he shot Newmaker a second time after 

he fell to the ground because Newmaker rose and began 

swinging the baton again. Id. 

We reversed the district court’s order granting summary 

judgment on qualified immunity grounds because the 

evidence conflicted with the officer’s testimony. First, the 

officer had previously described shooting Newmaker twice 

in quick succession, failing to mention that Newmaker fell 

and got back up. Id. at 1113, 1116. Second, the autopsy 

report indicated that Newmaker was shot while he was 

bending over and low to the ground, not while he was 

standing. Id. at 1114–16. Third, though a car dashboard 

camera captured only bits and pieces of the scuffle and 

shooting, there was “nothing clearly visible in [Newmaker’s] 

hands” when he was shot, and contrary to the officer’s 

statement, it appeared that Newmaker was shot after he fell 
SMITH V. AGDEPPA 17

to the ground. Id. at 1115. We concluded that summary 

judgment was inappropriate because it was disputed 

“whether the officers were telling the truth about when, why, 

and how [the officer] shot Newmaker.” Id. at 1117. 

Gonzalez v. City of Anaheim is another fatal shooting 

case in which physical evidence conflicted with the officers’ 

description of events leading up to the shooting. 747 F.3d at 

791. The only testimony concerning the minutes leading up 

to Gonzalez’s death came from officers who stopped 

Gonzalez for a traffic violation. Id. at 792. They described 

that Gonzalez refused to exit the van or turn off its engine 

and the officers, one standing on each side of the vehicle, 

reached through the van’s driver and passenger windows to 

open the van’s doors. Id. They later testified that it appeared 

Gonzalez had something in his hands and that they struggled 

to restrain him as they were leaning through the van’s 

windows. Id. The officers recounted that Gonzalez 

managed to shift the van into “drive,” and that he “stomped” 

on the accelerator. Id. at 792–93. The officer who shot 

Gonzalez was still leaning into the van. He stated that he 

yelled at Gonzalez to stop and then shot him in the head from 

less than six inches away, killing him. Id. at 793. 

Our en banc court reasoned that the key issues were 

whether a jury could decide that an objectively reasonable 

officer would have perceived an immediate threat of death 

or serious bodily injury, and whether a jury could decide it 

was practicable for the defendants to have given Gonzalez a 

deadly force warning. Id. at 794. We reversed the district 

court’s order granting summary judgment because the 

officers’ statements could not be reconciled with the record. 

By their mutual account, the van accelerated to fifty miles 

per hour after Gonzalez stomped on the accelerator and they 

both feared for the safety of the officer who had leaned into 
18 SMITH V. AGDEPPA

the van’s passenger’s side and was trapped in the 

accelerating van. Id. at 794. But the defendants also 

recounted that the van traveled just fifty feet in five to ten 

seconds. We reasoned that if that had been the case, a jury 

could decide that the van was not traveling at a high speed 

and that it was practicable to provide a warning before using 

deadly force. Id. at 797 (citing Deorle v. Rutherford, 272 

F.3d 1272, 1283–84 (9th Cir. 2001) (“Shooting a person who 

is making a disturbance because he walks in the direction of 

an officer at a steady gait with a can or bottle in his hand is 

clearly not objectively reasonable [where] . . . the officer 

neither orders the individual to stop nor drop the can or bottle 

. . . .”)).

The dissent missteps by conflating the practicability of 

providing a deadly force warning—which depends on 

whether the risk of danger was imminent—with whether 

there was a risk of danger. Our en banc court’s decision in 

Gonzalez clearly demonstrates these are two different 

inquiries. Like the officers in this case, the officers in 

Gonzalez described an “escalating” and “violent” struggle to 

restrain Gonzalez after a traffic stop, and they recounted that 

Gonzalez accelerated the van he was in while one officer was 

trapped inside. We concluded that factual discrepancies in 

Gonzalez would allow a reasonable jury to find that there 

was time to give a deadly force warning, despite the danger 

posed by the moving vehicle. Here, depending on what 

happened in the locker room, a jury could find that Agdeppa 

had an opportunity to give Dorsey such a warning before 

escalating to deadly force. Indeed, Agdeppa provided 

several warnings before using intermediate force, but at no 

point did Agdeppa warn Dorsey that he was escalating to the 

use of his firearm. 
SMITH V. AGDEPPA 19

The dissent engages in its own detailed and elaborate 

fact-finding and decides that Dorsey presented a significant 

risk to officer safety. But all resisting suspects pose some 

risk to officer safety and our precedent nevertheless provides 

that an officer may use deadly force only if the officer has 

probable cause to believe a suspect poses an immediate and 

significant threat of death or serious physical injury to the 

officer or others. See Gonzalez, 747 F.3d at 793; Newmaker, 

842 F.3d at 1116. It also requires that, if the circumstances 

permit, an officer must give notice before using deadly force. 

See, e.g., Gonzalez, 747 F.3d at 794. 

B.

The district court did not err in denying Agdeppa’s 

request for qualified immunity because “the version of 

events offered by [Agdeppa was] materially contradicted by 

the record.” Newmaker, 842 F.3d at 1116. Agdeppa argues

that he did not violate Dorsey’s clearly established 

constitutional rights by using “lethal force during hand-tohand combat,” but he attested that he was standing between 

six and eight feet away from Dorsey when he shot. Both 

Agdeppa and the dissent forget the limited scope of our 

interlocutory jurisdiction and ignore the district court’s 

factual findings, improperly weigh conflicting evidence, 

assess the sufficiency of the evidence, and make credibility 

determinations.6 The district court construed the evidence 

6 For example, the dissent includes a table that selects statements from 

the audio recording, but draws numerous inferences in favor of the 

officers; e.g. “pained grunt/groan.” Elsewhere, the dissent decides the 

security guards’ statements thoroughly corroborate the officers’ 

description of events, only to later suggest that the guards were unable 

to see what was happening prior to the shooting. In fact, the record does 

not allow us to determine the guards’ respective vantage points and we 
20 SMITH V. AGDEPPA

in the light most favorable to Smith and concluded that a jury 

could reasonably reject Agdeppa’s description of a “deadly 

fight” in the locker room and find that “a reasonable officer 

in Agdeppa’s position would not have believed that 

Rodriguez or anyone else was in imminent danger, and thus, 

would have understood his use of deadly force violated 

plaintiff’s Fourth Amendment rights.” See Scott, 39 F.3d at 

914 (“An officer’s use of deadly force is reasonable only if 

‘the officer has probable cause to believe that the suspect 

poses a significant threat of death or serious physical injury 

to the officer or others.’” (quoting Garner, 471 U.S. at 3)).7

It is uncontested that Dorsey posed some danger to the 

officers’ safety by actively resisting arrest, but our case law 

required Agdeppa to give a deadly force warning if doing so 

was practicable. See, e.g., Gonzalez, 747 F.3d at 794; 

Harris, 126 F.3d at 1201, 1204; Est. of Lopez, 871 F.3d at 

1011 (holding that an officer’s use of deadly force was 

unreasonable because the officer “indisputably had time to 

issue a warning, but never notified [the decedent] that he 

would be fired upon if he either turned or failed to drop the 

are not allowed to make credibility determinations. This is an issue for 

the fact-finder on remand.

7 Agdeppa also argues that the evidence in the record was insufficient to 

create a dispute of material fact as to whether Dorsey posed an imminent 

threat to the officers and contends that the district court erred in 

considering the autopsy and Commission reports because they were 

inadmissible. We lack jurisdiction to consider Agdeppa’s challenges to 

the sufficiency of the evidence, see Est. of Anderson, 985 F.3d at 731, 

and boiled down, Agdeppa’s evidentiary arguments are disguised 

challenges to the sufficiency of the evidence. In any event, the district 

court was entitled to consider the report at the summary judgment stage 

because it could be presented in a form admissible at trial. See Beech 

Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988); Sullivan v. Dollar 

Tree Stores, Inc., 623 F.3d 770, 777 (9th Cir. 2010).
SMITH V. AGDEPPA 21

gun”). And as the district court explained, Smith presented 

evidence calling into question whether Agdeppa warned 

Dorsey of his intent to use deadly force. 

The application of our well-established rule to 

Agdeppa’s conduct is straightforward because Agdeppa 

never claimed that it was not practicable to give a deadly 

force warning. On the contrary, when asked at his deposition 

if he warned Dorsey before using deadly force, Agdeppa 

said, “I know I said something. . . . I yelled something.” In 

his sworn declaration submitted in support of his summary 

judgment motion, and in the statement of undisputed 

material facts he filed in the trial court, Agdeppa alleged that, 

before shooting, he “gave Dorsey a verbal warning, stating 

words to the effect that Dorsey needed to stop.”8 If we view 

the facts in the light most favorable to Smith, we cannot 

disregard Agdeppa’s sworn account: whatever happened in 

the locker room after the body-cams were knocked off, 

Agdeppa’s statement was that he had time to yell “stop.” 

Setting aside for the moment that no such warning can be 

heard on the audio recording, Agdeppa never claimed that 

he warned Dorsey he was going to switch from using his 

taser to using his firearm if Dorsey did not stop resisting. 

Because the officers had tased Dorsey at least five times, a 

8 Agdeppa’s brief to this court recycles a bald assertion that appeared for 

the first time in his summary judgment brief, that he “warned [Dorsey] 

that he would shoot.” This assertion lacked any evidentiary support and 

conflicted with Agdeppa’s pre-trial statements that he told Dorsey to 

“stop.” Because counsel’s argument was not evidence, see, e.g., Gaines 

v. Relf, 53 U.S. 472, 490 (1851), the district court properly ignored it.

Ironically, the unsupported assertion in Agdeppa’s brief that he did 

provide a warning supports Smith’s contention that there was time to 

provide one.
22 SMITH V. AGDEPPA

command to “stop” would have done nothing to warn 

Dorsey that Agdeppa was preparing to ramp up to use deadly 

force. See, e.g., Gonzalez, 747 F.3d at 794 (“In general, we 

have recognized that an officer must give a warning before 

using deadly force ‘whenever practicable.’” (quoting Harris, 

126 F.3d at 1201)); Harris, 126 F.3d at 1204 (“Whenever 

practicable, a warning must be given so that the suspect may 

end his resistance.” (emphasis added)); see also S.R. Nehad 

v. Browder, 929 F.3d 1125, 1138 (9th Cir. 2019) (“Even 

assuming Browder did command Nehad to ‘Stop, drop it,’ 

there is no dispute that Browder never warned Nehad that a 

failure to comply would result in the use of force, let alone 

deadly force.”).9 Agdeppa’s declaration is a sworn 

statement by a party opponent and there is no conflicting 

evidence on this point. Cf. Fed. R. Evid. 801(d)(2). 

Particularly in light of the Commissioners’ report, a 

reasonable jury could decide that it was practicable for 

Agdeppa to give Dorsey a deadly force warning. 

Finally, as the district court recognized, no warning, not 

even the “stop” that Agdeppa alleges he yelled, can be heard 

on the officers’ body-cam audio clips. On that basis alone, 

a reasonable jury could find Agdeppa’s use of deadly force 

was unreasonable and violated clearly established law.

The dissent laments that we do not say more about the 

standard for qualified immunity, but our opinion accurately 

explains the applicable standard. It is curious that the dissent 

compiles a detailed set of factual findings from contested 

evidence, and disregards our limited jurisdiction on 

9 Browder was published in 2019, after the events at issue in this case, 

but we concluded the officer’s Fourth Amendment violation in that case 

violated law that was clearly established as of April 2015. See Browder, 

929 F.3d at 1130, 1141.
SMITH V. AGDEPPA 23

interlocutory review: we cannot engage in fact-finding, we 

cannot make credibility determinations, and we are obliged 

to view disputed facts in Smith’s favor. From the beginning, 

the dissent forgets our role. It first accepts that no warning 

is audible on the recording, then goes on to assume that 

Agdeppa told Dorsey to “stop” in the moments before the 

shooting; it decides that Agdeppa had only a “micro-second 

interval” to provide a warning and credits Witness F’s 

recollection that “moments prior” to the shooting, Dorsey 

tried to pull Agdeppa’s gun from his holster—even though, 

according to the Commissioners’ report, the gym’s security 

video showed that Witness F had exited the locker room 

prior to the shooting. Despite its suggestions to the contrary, 

body-cam video does not justify appellate fact-finding in this 

case, because there is no video footage of the moments 

before the shooting—there are only grunting and banging 

sounds. 

If a fact-finder ultimately rules in Agdeppa’s favor 

regarding the way the events unfolded in the locker room, 

Agdeppa will likely prevail. But at this stage, we are not free 

to overlook the Commissioners’ contrary finding that once a 

struggle ensued, there was “no exigency that required the 

officers to stay physically engaged with [Dorsey].” Nor are 

we free to ignore the factual disputes identified by the district 

court. See, e.g., Est. of Anderson, 985 F.3d at 731 (“A public 

official may not immediately appeal ‘a fact-related dispute 

about the pretrial record, namely, whether or not the 

evidence in the pretrial record was sufficient to show a 

genuine issue of fact for trial.’” (alteration omitted) (quoting 

Foster, 908 F.3d at 1210)). As even the dissent concedes, a 

factor that can be considered in the excessive force analysis 

is whether proper warnings were given.
24 SMITH V. AGDEPPA

IV.

It is not our place to step into the jury’s shoes and we do 

not know what happened in the crucial interval before 

Agdeppa shot Dorsey. Left to assess the evidence and 

witness credibility, a reasonable fact-finder could decide that 

Agdeppa’s characterization of the events in the locker room 

was contradicted by other evidence in the record. A 

reasonable jury could also conclude that Agdeppa had an 

opportunity to warn Dorsey and did not do so. Both were 

valid grounds for the district court to properly deny qualified 

immunity.

AFFIRMED.

BRESS, Circuit Judge, dissenting: 

The two police officers in this case found themselves in 

a violent confrontation with a large, combative suspect, who 

ignored their repeated orders to stop resisting and failed to 

respond to numerous taser deployments. After the suspect’s 

assault on the officers intensified and he wrested one of the 

officers’ tasers into his own hands, one officer shot the 

suspect to end the aggression. Two independent witnesses 

verified the officers’ account. Was it clearly established for 

purposes of overcoming qualified immunity that officers 

enduring a frenzied onslaught were legally required to call a 

“time out” and issue another warning before they used 

deadly force? Remarkably, the majority says yes. That is 

clearly wrong. 

The Supreme Court has “repeatedly told courts—and the 

Ninth Circuit in particular—not to define clearly established 

law at a high level of generality.” Kisela v. Hughes, 138 S. 
SMITH V. AGDEPPA 25

Ct. 1148, 1152 (2018) (per curiam) (quoting City and County 

of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015)). 

Our court today repeats that same error, in this case finding 

it clearly established that officers in the heat of battle must 

follow a judge-devised warning script when officer safety is 

most jeopardized. The split-second decision officers made 

here presents a classic case for qualified immunity. The 

majority’s decision otherwise is contrary to law and requires 

officers to hesitate in situations in which decisive action, 

even if leading to the regrettable loss of human life, can be 

necessary to protect their own. 

After repeated verbal commands and efforts to use nonlethal force failed, no clearly established law required these 

officers to recite magic words of further warning in the 

highly dangerous situation they confronted. Respectfully, I 

dissent.

I

In its effort to turn tangential “disputed” facts into 

supposedly critical ones, the majority fails to provide a full 

account of the perilous circumstances that produced the 

events in this case, while glossing over the officers’ repeated 

attempts to avoid resort to deadly force. Though the 

majority strains to detect inconsistencies in the officers’ 

accounts, the key aspects of this case are undisputed, based 

largely on video and audio recordings. To be clear, the 

majority’s claimed factual disputes are ultimately beside the 

point because even accepting them as valid, the majority 

opinion still commits a fundamental error of law in treating 

as clearly established a warning rule that operates at too high 

a level of generality, and that we have never said applies in 

the throes of a violent altercation. Nevertheless, and 

although we construe the facts in the light most favorable to 
26 SMITH V. AGDEPPA

the plaintiff, a more complete retelling of the events is 

warranted. 

A

Around 9:00 a.m. on the morning of October 29, 2018, 

Officers Edward Agdeppa and Perla Rodriguez were called 

to a 24-Hour Fitness gym on Sunset Boulevard in 

Hollywood to investigate an apparent trespasser who was 

causing a disturbance. Both officers activated their body 

cameras before entering the gym. Once inside, an employee 

immediately approached the officers and reported, “We have 

a gentleman who’s a little bit irate, and he’s not listening, 

and he’s already threatened a few members, and he’s 

assaulted security as well.” The employee led the officers to 

the men’s locker room where the suspect, later identified as 

Albert Dorsey, was located. 

Once inside, the officers encountered Dorsey, who was 

standing naked near a shower area and playing music from 

his phone aloud. Dorsey was a very large man, 

approximately 6’1” tall and weighing 280 pounds. Agdeppa 

and Rodriguez each weighed approximately 145 pounds and 

were 5’1” and 5’5”, respectively. The officers repeatedly 

ordered Dorsey to turn off his music, put on his clothes, and 

leave the gym. Dorsey did not comply. 

After two minutes had passed, Dorsey walked across the 

room, away from his clothes, to look at himself in the mirror. 

Both officers again instructed Dorsey to get dressed, but 

Dorsey continued to refuse, seemingly taunting the officers. 

As the officers waited, Dorsey began dancing to the music 

while raising his middle finger in Agdeppa’s direction. At 

various points in the videos, two private security guards are 

seen in the locker room with the officers. 
SMITH V. AGDEPPA 27

After more than four minutes had passed since the 

officers first told Dorsey he needed to leave, Agdeppa 

approached Dorsey to handcuff him from behind. Dorsey 

resisted Agdeppa’s attempts to control his arms, at which 

point Rodriguez stepped in to help. Agdeppa eventually 

managed to place a handcuff on Dorsey’s right wrist while 

Rodriguez attempted to control Dorsey’s left wrist and 

elbow. Dorsey continued to struggle, so the officers tried 

various tactical maneuvers to secure Dorsey’s hands. This 

included attempting to secure Dorsey against the wall, 

switching sides, and using arm, finger, and wrist locks. 

Despite these efforts, the officers could not get Dorsey under 

control.

During the struggle, Agdeppa and Rodriguez attempted 

to use Rodriguez’s handcuffs to form a “daisy chain,” which 

involves connecting two or more sets of handcuffs together 

to restrain suspects who are too combative or large to be 

restrained by a single set of cuffs. As the officers attempted 

to attach the handcuffs together, Dorsey forcefully pulled his 

left arm away from Rodriguez and managed to break free of 

her grip. The officers directed Dorsey to calm down and stop 

resisting, but he continued to defy them. The officers then 

maneuvered Dorsey against a wall while using their body 

weight to force his hands behind his back. 

After initially pinning Dorsey to the wall, Agdeppa was 

able to broadcast a request for additional units. As Dorsey 

became more combative, Agdeppa radioed in a request for 

backup units, which is a more urgent call for assistance. 

Approximately one minute after going “hands on” with 

Dorsey, Rodriguez’s body camera was knocked to the 

ground in the struggle. Agdeppa’s camera was knocked to 

the ground shortly thereafter, and the cameras captured 

minimal video of the rest of the events in question. But they 
28 SMITH V. AGDEPPA

continued to record audio, which included frequent bangs, 

crashes, shouts of pain, and other indicia of a violent 

confrontation.

It is undisputed that a violent struggle ensued in the 

locker room. Despite their further efforts, the officers were 

unable to get control of Dorsey, who became increasingly 

aggressive. At multiple points during the audio recordings, 

the officers are heard yelling at Dorsey to stop resisting. 

Dorsey eventually managed to break free of the officers’ 

grips, and, in response, Agdeppa unholstered his taser and 

held it to Dorsey’s chest. Agdeppa maintains that he warned 

Dorsey he would use the taser if Dorsey continued to resist. 

When Dorsey refused to stop his violent struggling, 

Agdeppa cycled the taser twice into Dorsey’s body. After 

this failed to subdue Dorsey, Rodriguez fired her taser dart 

into Dorsey’s back and activated it for approximately five 

seconds. After the first attempt failed, Rodriguez activated 

her taser twice more without success. 

The audio recordings confirm that the struggle escalated 

after the taser deployments. Rodriguez can be heard 

repeatedly demanding that Dorsey “turn around” after the 

tasers were cycled. The officers are then heard groaning and 

crying out in pain as the sounds of banging and thrashing 

increase in volume and intensity. Just before Agdeppa fired 

the fatal shots, we hear the most intense shouts of pain from 

the officers amidst loud crashing noises. 

The officers’ accounts of this part of the story are fully 

consistent with each other. Agdeppa indicated that Dorsey 

did not attempt to flee but instead “advance[d] upon” the 

officers, “punching at [their] heads and faces while the 

handcuff attached to his wrist also swung around and struck” 

them. During the struggle, Dorsey landed blows on 
SMITH V. AGDEPPA 29

Agdeppa’s head and face area. Agdeppa recalled that one 

blow was extremely forceful and knocked him backwards 

into a wall, momentarily disorienting him and causing him 

to drop his taser to the locker room floor. After Rodriguez 

fired her taser for the third time, Dorsey pivoted and struck 

her, knocking her to the ground. The officers claim that 

Dorsey then straddled Rodriguez, striking her repeatedly and 

gaining control of her taser. 

Agdeppa, still dazed from Dorsey’s blow, reoriented 

himself and looked up to see Dorsey straddling Rodriguez. 

Agdeppa remembered Dorsey “pummeling . . . Rodriguez 

with a flurry of punches” as she laid in the fetal position, 

trying to protect her face and head. Rodriguez believed that 

her life was at risk, and Agdeppa, too, feared that Dorsey 

would kill Rodriguez. It was at this point that Agdeppa fired 

the fatal shots. After he was shot, Dorsey was still holding 

one of the officers’ tasers in his hand. Agdeppa claimed he 

warned Dorsey before shooting him, but this part of the 

audio recording is chaotic. One can hear a man’s voice 

shouting something just before the shots were fired, though 

what is said is unclear. I will assume, as the majority does, 

that no final warning was given.

But for all its focus on the warning that was allegedly not 

provided, the majority opinion fails to acknowledge the 

numerous commands—in word and deed—that the officers 

gave in trying to halt Dorsey’s aggression. Before they went 

“hands on” with Dorsey, both officers repeatedly urged him 

to put on his clothes and leave the gym. Once they went 

“hands on,” the recordings confirm that the officers gave 

repeated verbal directives and used various means of nonlethal force to get Dorsey to stop his assault. See Scott v. 

Harris, 550 U.S. 372, 381 (2007) (courts at summary 

judgment “should . . . view[] the facts in the light depicted 
30 SMITH V. AGDEPPA

by the videotape”).

Reciting only what I can clearly discern after officers 

went “hands on,” this is what the recordings show about 

what officers said to Dorsey during the four minutes of 

violent struggle:

Officer Command or Sound Timestamp

Agdeppa “Give me your hand.”*1 16:09:322

Rodriguez “Put your hands behind your 

back.”

16:09:33

Rodriguez “Stop tensing up!” 16:09:35

Rodriguez “Stop tensing up!” 16:09:36

Rodriguez “Do not tense up on me!” 16:09:37

Rodriguez “Do not fucking tense up on 

me!”

16:09:38

Agdeppa “I swear to God, if you 

fucking tense up, buddy!”

16:09:39

Rodriguez “Do not tense up on me.” 16:09:40

1 The commands that I denote with an asterisk can be heard more clearly 

in Agdeppa’s body camera recording than in Rodriguez’s. Gaps in time 

without directives or especially loud sounds are filled with other sounds 

of struggle, officer-to-officer coordinating communications, and 

Dorsey’s initial verbal protests, which I do not include. I also do not 

include a small number of statements from the officers that are difficult 

to make out over the crashes of the altercation and the music still playing 

from Dorsey’s phone. Contrary to the majority’s assertion, I draw no 

inferences in favor of the officers, but have simply set forth what is 

apparent from the recordings.

2 Timestamps are displayed in both officers’ body camera recordings. 

The two recordings’ timestamps are consistent with one another.
SMITH V. AGDEPPA 31

Officer Command or Sound Timestamp

Agdeppa “What are you gonna do?” 16:09:47

Rodriguez “Do not fucking tense up on 

me.”

16:09:49

[Officers continue to 

struggle with Dorsey as they 

try to place handcuffs on 

him]

16:09:51–

16:10:03

Agdeppa “Calm down.” 16:10:04

Agdeppa “Calm down.” 16:10:05

Rodriguez “Give me your fucking hand 

then!”

16:10:10

[Officers continue to 

struggle with Dorsey in 

attempting to handcuff him 

with two sets of cuffs in a 

“daisy chain”]

16:10:12–21

Rodriguez [Pained 

Exclamation/Grunt]*

16:10:20

[Rodriguez’s body camera 

is knocked to the ground as 

Dorsey escalates his 

resistance]

16:10:20

Agdeppa “Hold on!” 16:20:21

[Agdeppa’s body camera is 

knocked to the ground]

16:10:22

Agdeppa “Stop resisting!” 16:10:23
32 SMITH V. AGDEPPA

Officer Command or Sound Timestamp

[Loud Bang] 16:10:35

[Bang] 16:10:41

[Dorsey is briefly visible on 

Rodriguez’s camera 

wrestling and pushing the 

officers]

16:10:45–51

[Thud] 16:11:03

Agdeppa “Stop.” 16:11:10

Rodriguez “Give me your fucking 

hand!” 

16:11:17

Agdeppa “Give her your hand.” 16:11:18

Rodriguez “Give me your fucking 

hand.”

16:11:22

Rodriguez “Stop fucking resisting!” 16:11:24

Agdeppa “Will you relax!” 16:11:31

Agdeppa “Get off her.”* 16:11:33

[Loud Bang] 16:11:34

[Thud] 16:11:44

Agdeppa “Just relax!” 16:11:54

Agdeppa “You’re alright.”* 16:11:55

Rodriguez “Stop!” 16:11:55

Rodriguez “Stop!” 16:11:57

Agdeppa “Relax!” 16:12:10
SMITH V. AGDEPPA 33

Officer Command or Sound Timestamp

Rodriguez “Stop!” 16:12:12

Agdeppa “Relax.” 16:12:20

[Inaudible Raised Voices] 16:12:20–25

Rodriguez “Stop trying to [Inaudible]!” 16:12:27

[Audible Taser 

Deployment]

16:12:28

Rodriguez “Turn around or I’m going 

to tase you again!”*

16:12:34

Rodriguez “Turn around!” 16:12:36

Rodriguez “Turn around!” 16:12:39

Rodriguez “Turn around!” 16:12:40

Rodriguez “Turn around!” 16:12:42

Rodriguez “Just give me your hand!”* 16:12:45

[Repeated and Ongoing 

Taser Deployments and 

Crashing Sounds]

16:12:45–

16:13:11 

Rodriguez [Pained Groan/Grunt] 16:12:55

Rodriguez [Pained Shout] 16:12:56

Rodriguez [Pained Shout and Bang] 16:12:58

[Bang and Buzz from Taser] 16:12:59

Rodriguez [Pained Grunt/Groan] 16:13:01

Rodriguez [Pained Grunt/Groan] 16:13:02

Agdeppa [Loud Cry of Pain] 16:13:04
34 SMITH V. AGDEPPA

Officer Command or Sound Timestamp

Rodriguez [Pained Grunt/Groan] 16:13:05

[Inaudible Shout (Man’s 

Voice)]

16:13:11

[Gunshots] 16:13:12

Agdeppa “Are you okay?” 16:13:15

Rodriguez “I’m good!” 16:13:16

Agdeppa “6A15, shots fired! Officer 

needs help! [Inaudible]”

16:13:17

Agdeppa and Rodriguez were treated at the emergency 

room following the incident. Agdeppa was given sutures on 

the bridge of his nose and later reported being diagnosed 

with a concussion, which left him unable to work for six 

months and had further longer-lasting effects. Rodriguez 

recalled having a swollen left check and right jaw, abrasions 

on her ear and hands, and a pulled muscle behind her knee. 

The Los Angeles Board of Police Commissioners 

(BOPC) reviewed the incident and issued written findings. 

The findings were based on various accounts, including from 

the two private security guards who are seen at different 

points in the bodycam videos. As the district court noted, 

“the course of events presented in the Findings largely 

conform to Agdeppa’s account,” with other witnesses who 

were in the locker room substantiating key moments in the 

encounter. Although the BOPC faulted the officers for not 

using greater de-escalation techniques earlier in the 

encounter, it concluded that “available evidence supports 

that [Agdeppa’s] belief that there was an imminent threat of 

death or serious bodily injury at the time of the [shooting] 
SMITH V. AGDEPPA 35

was objectively reasonable.” 

B

The majority claims there are “significant discrepancies” 

in the events recounted above. That is simply inaccurate. 

Based on the reports of the two officers and others, the 

BOPC report describes the events as I have. Relying on the 

BOPC report, the majority contends that “[b]ystanderwitness statements . . . contradicted Agdeppa’s story.” The 

opposite is true. The majority relies on only one alleged 

contradiction: one witness recalling Agdeppa potentially 

being closer to Dorsey at the time of the shooting than 

Agdeppa described. But in fact, the witnesses’ accounts in 

the BOPC findings thoroughly corroborate the officers’ 

descriptions of a violent, escalating struggle in which they 

faced a grave risk of serious injury, or worse. 

For example, as set forth in the BOPC report, Witness F, 

a security guard, recalled that after Dorsey was tased, Dorsey 

punched Agdeppa “more than eight times” in the “face and 

head area with his fist that was handcuffed,” with “the force 

of the punches knock[ing] [Agdeppa] into the lockers and 

walls.”3 Witness F recalled that “[t]his caused [Agdeppa] to 

bounce back toward [Dorsey], who then struck [Agdeppa] in 

the face again.” Witness F further described that Dorsey was 

“striking [Rodriguez] in the face with his half-open hand” 

and “straddling” her, and that “[Rodriguez] was bleeding 

from []her mouth as [Dorsey] was hitting []her.” The BOPC 

report states that after Rodriguez was “knocked to the 

ground by [Dorsey] and was attempting to defend [herself],” 

Dorsey “grabbed the TASER with his left hand and began to 

3 Although the BOPC report refers to Officers “A” and “B,” it is apparent 

that “A” is Agdeppa and “B” is Rodriguez. 
36 SMITH V. AGDEPPA

push the TASER into [Rodriguez]’s face, simultaneously 

hitting [Rodriguez] with his right fist, which had the 

handcuffs attached.” 

Even the alleged inconsistency the majority relies upon 

supports Agdeppa because it describes a more desperate 

situation than even Agdeppa recalled: in Witness F’s 

recollection, “moments prior” to the shooting, and “while 

[Dorsey] was straddling [Rodriguez], [Dorsey] grabbed 

[Agdeppa]’s gun and attempted to pull it out of its holster.” 

There is also another problem: the majority opinion is 

purporting to identify a supposedly critical factual dispute 

based on what Witness F observed at the exact moment of 

the shooting, but a careful reading of the BOPC report shows 

that based on video surveillance, Witness F was no longer 

even in the locker room at that exact moment, having exited 

just immediately before. (There is no suggestion in the 

BOPC report that Witness F did not see the violent struggle 

in the moments leading up to the shooting—an account the 

BOPC report fully credits.) And for avoidance of doubt, it 

accomplishes nothing for the majority to poke holes in 

Witness F’s account when it is the majority opinion that is 

relying on the BOPC report to create a supposed disputed of 

fact; I am merely showing why that reliance is wholly 

misplaced.4

4 It is worth noting that, in claiming the BOPC report contradicts 

Agdeppa’s account of where he was standing when he fired the fatal 

shots, the majority relies exclusively on the district court’s decision. But 

the district court, which acknowledged that “plaintiff does not raise this 

argument,” focused on a line in the BOPC report which stated that, 

“According to Witness F,” after the second shot, “[Dorsey] let go of 

Officer A’s wrist.” In the very next sentence, however, the BOPC report 

states that “Witness F believed that [Dorsey] looked at Officer A and then 

began to walk toward him/her, and that Officer A fired two more 
SMITH V. AGDEPPA 37

To this point, the BOPC report specifically found—

relying on independent witnesses—that Agdeppa reasonably 

perceived a risk of death or serious injury to the officers: 

[Agdeppa] used deadly force at a time when, 

as supported by the accounts of two 

independent witnesses, he[] and [Rodriguez] 

were being assaulted by [Dorsey]. At that 

time, the violence of [Dorsey’s] assault 

relative to the officers’ capacities to defend 

themselves was such that it was objectively 

reasonable to believe that there was an 

imminent threat to the officers of death or 

rounds.” (emphasis added). This sequence of events would not be 

possible if Dorsey were holding Officer A’s (Agdeppa’s) wrist. The line 

on which the district court (and the majority) thus rely—referencing 

Dorsey holding an officer’s wrist—should likely be a reference to 

Officer B (Rodriguez). And to the extent this portion of the BOPC report 

should be read as meaning that Officer A (Agdeppa) had time to move 

away from Dorsey after Dorsey let go of his wrist, that would allow 

Agdeppa to be placed several feet from Dorsey when he shot him. Thus, 

either way the majority is wrong (and thus, contrary to the majority, I do 

not “decide” that the BOPC report contained a mistake). 

Even more critically, however, as I have noted above, the majority 

purports to base its key identified factual dispute on Witness F’s 

recollection of Agdeppa’s positioning at the exact moment of the 

shooting, when the BOPC later notes that Witness F was not even present 

in the locker room at that exact point in time. That may explain why the 

BOPC report had no difficulty crediting Agdeppa as having fired “from 

an approximate distance of 5–7 feet.” In fact, the BOPC explained that 

the investigation into the shooting “revealed that [Agdeppa] fired five 

rounds at [Dorsey], from an approximate distance of five to seven feet.” 

The supposedly grand inconsistency in the BOPC report on which the 

majority hangs its hat (which was based on the district court’s own 

independent theorizing) is an inconsistency that the BOPC tellingly did 

not even acknowledge.
38 SMITH V. AGDEPPA

serious bodily injury. 

For our purposes, the BOPC report unequivocally supports 

the officers. Confusing issues, the majority relies on 

portions of the BOPC report that criticize the officers for 

having gotten themselves into this situation and for failing to 

use de-escalation tactics earlier in the encounter. But those 

findings are irrelevant for purposes of this case. The issue 

here is not whether the officers could have de-escalated the 

situation before it grew violent, but whether, at the moment 

Agdeppa shot Dorsey, the officers faced an imminent threat 

of death or serious injury. On this critical point, the BOPC 

concludes that they did, based on the same undisputed facts 

I have set forth. 

Equally wrong is the majority’s assertion that “physical 

evidence . . . conflicts with Agdeppa’s story.” The 

“evidence” the majority refers to here is the officers’ 

injuries, which the majority (like the district court) believes 

are too insubstantial. But as I recounted above, the officers 

did suffer injuries, including Agdeppa sustaining a 

prominent facial laceration. The officers never claimed to 

have suffered the level of injury the majority apparently 

expects they should have sustained. And nothing about the 

officers’ account required injuries more severe. Although it 

is true, as the district court noted, that neither officer appears 

to have suffered broken bones or more serious injuries, that 

fortuity cannot alter the analysis. The majority suggests that 

the district court described Rodriguez as “unscathed” 

following the incident, but the portion of the district court 

decision the majority cites merely recites this as an argument 

made by the plaintiff. 

The majority is also clearly wrong in asserting that the 

autopsy report “undermines Agdeppa’s description” of the 
SMITH V. AGDEPPA 39

events. The district court noted that “from their entry point, 

three of the four bullets travelled downward relative to 

Dorsey’s body, but one travelled upward.” Based on this, 

the plaintiff argued that the bullet trajectory raised questions 

as to whether Dorsey was standing or hunched over 

Rodriguez at the time he was shot. This argument—which 

the district court noted the plaintiff had raised “for the first 

time” at the summary judgment hearing—is based not on 

expert analysis, but on the impromptu speculation of 

counsel.

Nevertheless, the majority claims that “the district court 

correctly determined this evidence could allow a jury to 

question Agdeppa’s credibility” as inconsistent with 

Agdeppa’s claims about Dorsey’s positioning at the time of 

the shooting. That is, again, flatly inaccurate. The district 

court listed the plaintiff’s bullet-trajectory argument as a 

potential factual dispute that the plaintiff had identified. But 

the district court in fact discounted this argument earlier in 

its decision, recognizing that “[b]ecause there is no evidence 

regarding the sequence of the gunshots, the court cannot 

draw any inference as to how Dorsey was positioned relative 

to each gunshot.” 

In short, although the majority tries to gin up factual 

disputes, none are material, or even real. This confirms the 

total irrelevancy of the majority’s multi-page discussion of 

Newmaker v. City of Fortuna, 842 F.3d 1108 (9th Cir. 2016), 

and Gonzalez v. City of Anaheim, 747 F.3d 789 (9th Cir. 

2014) (en banc), two cases that have nothing to do with this 

one beyond the fact they concerned officer-involved 

shootings. In Newmaker, two officers provided conflicting 

testimony about the circumstances of the shooting and 

arrived at their version of events “[o]nly after receiving 

suggestions from [an investigator].” 842 F.3d at 1111–13. 
40 SMITH V. AGDEPPA

Even more significantly, the officers asserted that the 

suspect was standing and swinging a police baton at them, 

but the autopsy report and video evidence indicated that the 

man was shot in the back while lying on the ground. See id.

at 1111–16. In Gonzalez, an officer shot a man in the head 

at point blank range with no warning and no prior resort to 

nonlethal force, and the officer’s account, which turned on 

the speed of a moving vehicle, included as to that critical 

issue a “combination of facts [that] appear[ed] to be 

physically impossible.” 747 F.3d at 794. 

These cases involved genuine disputes of highly material 

facts. They provide no license for elevating phantom factual 

disputes into critical ones, as the majority does here. The 

implicit suggestion in the majority opinion that these (nonexistent) factual disputes provide the linchpin for 

disbelieving the obvious import of the video and audio 

recordings, the officers’ sworn statements, and the 

confirmatory bystander recollections, is entirely unfounded. 

It is therefore completely false for the majority to assert that 

“the version of events offered by Agdeppa was materially 

contradicted by the record.” 

But even granting the majority its claimed factual 

discrepancies, the key facts here are undisputed: officers 

were engaged in a violent struggle in an enclosed area with 

a much larger man who fought with the officers and 

repeatedly resisted arrest, who refused to stop his aggression 

despite repeated warnings and tasings, and who had taken 

control of one officer’s taser. Just before the fatal shots were 

fired, the officers can be heard crying out in pain as crashing 

and thrashing noises intensify. Two independent witnesses 

corroborated the severity of Dorsey’s attack. 

The majority’s repeated accusation that I have engaged 
SMITH V. AGDEPPA 41

in fact-finding is baseless. It is the majority that is ignoring 

the critical and undisputed facts. The question, then, is 

whether it was clearly established that the officers in this 

extreme situation were required to give a further warning 

before using deadly force. 

II

The majority opinion says almost nothing about the 

rigorous legal standards governing the qualified immunity 

analysis, but they are central to the proper resolution of this 

case. Qualified immunity protects government officials 

from § 1983 suits unless “(1) they violated a federal statutory 

or constitutional right, and (2) the unlawfulness of their 

conduct was ‘clearly established at the time.’” District of 

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting 

Reichle v. Howards, 566 U.S. 658, 664 (2012)). We need 

not answer the first question if the law is not clearly 

established. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

For a right to be clearly established, it must be 

“sufficiently clear that every reasonable official would have 

understood that what he is doing violates that right.” 

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) 

(quoting Reichle, 566 U.S. at 664). This is a high standard: 

“existing precedent must have placed the statutory or 

constitutional question beyond debate.” Id. at 12 (quoting 

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The “rule 

must be settled law, which means it is dictated by controlling 

authority or a robust consensus of cases of persuasive 

authority.” Wesby, 138 S. Ct. at 589–90 (quotations 

omitted). This “demanding” requirement “protects all but 

the plainly incompetent or those who knowingly violate the 

law,” and calls for “a high degree of specificity.” Id. at 589–
42 SMITH V. AGDEPPA

91 (quotations omitted); see also Rivas-Villegas v. 

Cortesluna, 142 S. Ct. 4, 7–8 (2021) (per curiam).

It is critical that clearly established law be sufficiently 

specific. The Supreme Court has “repeatedly stressed that 

courts must not ‘define clearly established law at a high level 

of generality, since doing so avoids the crucial question 

whether the official acted reasonably in the particular 

circumstances that he or she faced.’” Wesby, 138 S. Ct. at 

590 (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 

(2014)). This “specificity is especially important in the 

Fourth Amendment context, where . . . ‘[i]t is sometimes 

difficult for an officer to determine how the relevant legal 

doctrine, here excessive force, will apply to the factual 

situation the officer confronts.’” Mullenix, 577 U.S. at 12 

(quoting Saucier v. Katz, 533 U.S. 194, 205 (2001) 

(alteration in original)). 

Because no one suggests this is the rare “obvious case” 

in which general principles suffice to clearly establish the 

unlawfulness of Agdeppa’s conduct, Wesby, 138 S. Ct. at 

590 (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) 

(per curiam)), Agdeppa is entitled to qualified immunity 

unless “existing precedent ‘squarely governs’ the specific 

facts at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 

(2018) (per curiam) (emphasis added) (quoting Mullenix, 

577 U.S. at 13); see also, e.g., Brosseau, 543 U.S. at 201; 

Ventura v. Rutledge, 978 F.3d 1088, 1091 (9th Cir. 2020). 

The critical question is thus “whether the violative nature of 

particular conduct is clearly established.” Mullenix, 136 S. 

Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). 

The plaintiff’s theory is that Agdeppa used excessive 

force when he shot Dorsey. To assess the reasonableness of 

a particular use of force, we apply the standards from 
SMITH V. AGDEPPA 43

Graham v. Connor, 490 U.S. 386 (1989), and “balance ‘the 

nature and quality of the intrusion on the individual’s Fourth 

Amendment interests’ against ‘the countervailing 

government interests at stake.’” Miller v. Clark Cnty., 340 

F.3d 959, 964 (9th Cir. 2003) (quoting Graham, 490 U.S. at 

396). In doing so, “[w]e consider ‘the type and amount of 

force inflicted’” in tandem with “‘(1) the severity of the 

crime at issue, (2) whether the suspect posed an immediate 

threat to the safety of the officers or others, and (3) whether 

the suspect was actively resisting arrest or attempting to 

evade arrest by flight.’” O’Doan v. Sanford, 991 F.3d 1027, 

1037 (9th Cir. 2021) (quoting Miller, 340 F.3d at 964). 

Another factor that can be considered is whether proper 

warnings were or could have been given. See Isayeva v. 

Sacramento Sheriff’s Department, 872 F.3d 938, 947 (9th 

Cir. 2017). In conducting this analysis, we do not “secondguess officers’ real-time decisions from the standpoint of 

perfect hindsight,” O’Doan, 991 F.3d at 1036, and we must 

recognize that “officers are often forced to make split-second 

judgments—in circumstances that are tense, uncertain, and 

rapidly evolving—about the amount of force that is 

necessary in a particular situation,” Graham, 490 U.S. at 

397.

Interestingly, the majority opinion does not appear to 

take issue with Agdeppa’s use of force standing alone, much 

less suggest that Agdeppa violated clearly established law in 

that regard (this was the basis for the district court’s decision 

denying qualified immunity, which was clearly wrong). 

Instead, the majority tells us, what makes Agdeppa’s use of 

force violative of clearly established law is that Agdeppa 

failed to give a special warning before he shot. Although the 

plaintiff here barely raised this issue in the district court, the 

majority holds that Ninth Circuit precedent creates a “well-
44 SMITH V. AGDEPPA

established rule” that “required Agdeppa to warn before 

using deadly force if doing so was practicable,” and that 

construing the facts in favor of the plaintiff, Agdeppa’s 

failure to give a pre-shot warning “violated clearly 

established law.” 

The majority thereby contravenes the Supreme Court’s 

clear directives on qualified immunity. The Supreme Court 

has “repeatedly stressed that courts must not define clearly 

established law at a high level of generality,” explaining that 

“[a] rule is too general if the unlawfulness of the officer’s 

conduct does not follow immediately from the conclusion 

that the rule was firmly established.” Wesby, 138 S. Ct. at 

590 (emphasis added) (quotation & alteration omitted). The 

Supreme Court has told us this again and again, sometimes 

even calling our court out by name due to our repeated 

infractions in this area. See Kisela, 138 S. Ct. at 1152; 

Sheehan, 575 U.S. at 613; Lopez v. Smith, 574 U.S. 1, 6 

(2014) (per curiam); al-Kidd, 563 U.S. at 742.

The majority opinion repeats our mistakes of the past. 

The majority is correct that under Ninth Circuit precedent, 

“[i]n general, we have recognized that an officer must give a 

warning before using deadly force ‘whenever practicable.’” 

Gonzalez, 747 F.3d at 794 (quoting Harris v. Roderick, 126 

F.3d 1189, 1201 (9th Cir. 1997)). But this standard is 

obviously far, far too general to create clearly established 

law for purposes of overcoming qualified immunity. We 

need look no further than our articulation of this “warning 

rule,” which on its face recognizes it is not a one-size-fits-all 

proposition. We have stated only that the rule applies “[i]n 

general,” “‘whenever practicable.’” Gonzalez, 747 F.3d at 

794 (emphasis added) (quoting Harris, 126 F.3d at 1201). 

We have also specifically emphasized that “[t]he absence of 

a warning does not necessarily mean that [an officer’s] use 
SMITH V. AGDEPPA 45

of deadly force was unreasonable.” Id. at 797 (emphasis 

added). 

Standing alone, and outside of an obvious case (this is 

not one), the warning principle is pitched at a level of 

generality that is much too high to create clearly established 

law in “the particular circumstances” that Agdeppa faced. 

Wesby, 138 S. Ct. at 590. Our “warning principle” cases 

certainly do not clearly establish the types of situations in 

which a warning is “practicable,” what form the warning 

must take, or how specific it must be. Nor does existing law 

clearly establish how the lack of a warning is to be balanced 

against the other Graham factors in the context of a case such 

as this, and, in particular, the type of imminent threat to 

safety that the officers faced.

The origins of the warning principle only further confirm 

that it operates at a level of generality that is too elevated for 

qualified immunity purposes. In Harris, we sourced our 

warning rule to the Supreme Court’s decision in 

Tennessee v. Garner, 471 U.S. 1, 11 (1985), which held that 

“[w]here the suspect poses no immediate threat to the officer 

and no threat to others, the harm resulting from failing to 

apprehend him does not justify the use of deadly force to do 

so.” See Harris, 126 F.3d at 1201 (citing Garner, 471 U.S. 

at 11–12). But the Supreme Court has been clear that “[t]he 

standards from Garner . . . ‘are cast at a high level of 

generality,’ so they ordinarily do not clearly establish 

rights.” Isayeva, 872 F.3d at 951 (quoting Brosseau, 543 

U.S. at 199); see also Rivas-Villegas, 142 S. Ct. at 8 (same). 

When Garner is too general to create clearly established law 

in a particular case, a general warning principle inferred 

from Garner is likewise incapable of serving that function.
46 SMITH V. AGDEPPA

The majority was thus required to come forward with 

“existing precedent” that “squarely governs the specific facts 

at issue.” Kisela, 138 S. Ct. at 1153 (quotation omitted). But 

no precedent possibly fits that bill because the cases the 

majority identifies all involved officers who shot suspects 

almost immediately after encountering them, where the 

suspects presented no obvious threat to officer safety. In 

Harris, a police sniper in a hilltop position opened fire on 

suspects who were exhibiting no immediate signs of 

aggression, without even announcing that police were 

present. 126 F.3d at 1193–94, 1202–04. In Gonzalez, the 

officer shot a man in the head at point blank range with no 

warning and no prior resort to nonlethal deterrents, 

immediately after the suspect drove away with the officer in 

the car at a speed that may have been no faster than three to 

seven miles per hour. See 747 F.3d at 794–97. In Estate of 

Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017), 

the officer shot a thirteen-year-old boy—who was holding a 

fake gun and displaying no signs of aggression—moments 

after arriving on the scene, “without knowing if [the boy’s] 

finger was on the trigger, without having identified himself 

as a police officer, and without ever having warned [the boy] 

that deadly force would be used.” Id. at 1010–11. And in 

S.R. Nehad v. Browder, 929 F.3d 1125 (9th Cir. 2019), 

which was decided after the events of this case, the suspect 

was making no sudden movements when an officer fatally 

shot him from seventeen feet away, less than five seconds 

after the officer stepped out of his car, after making no 

attempt to use nonlethal force. Id. at 1130–32, 1137–38.

These cases bear none of the hallmarks of this case, in 

which the officers repeatedly and unsuccessfully tried to use 

nonlethal force and were engaged in a lengthy, violent 

struggle with a large assailant in a tightly enclosed area, who 
SMITH V. AGDEPPA 47

was striking them and who had already gained control of an 

officer’s taser. There is no possible sense in which the 

precedents the majority cites would have made it “clear to 

[Agdeppa] that his conduct was unlawful in the situation he 

confronted.” Wesby, 138 S. Ct. at 590 (quotation omitted). 

Those precedents are light years away from this one. 

Agdeppa is entitled to qualified immunity because “neither 

the panel majority nor the [plaintiff has] identified a single 

precedent—much less a controlling case or robust consensus 

of cases—finding a Fourth Amendment violation ‘under 

similar circumstances.’” Wesby, 138 S. Ct. at 591 (quoting 

White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)).

Nor does the rationale of our warning cases apply here, 

either. We have said that a warning must be given 

“whenever practicable” so that a suspect “who do[es] not 

pose an immediate threat” to officer safety “may end his 

resistance.” Harris, 126 F.3d at 1204. Dorsey did pose an 

immediate threat to officer safety. And he was given 

numerous opportunities—through repeated verbal 

commands, attempted handcuffing, and taser deployments—

to stop his aggression. This was not the case of a suspect 

who was shot before he had a chance to comply. By the 

officers’ words and actions, Dorsey was warned throughout 

the encounter. He was given numerous opportunities to 

stand down, and he instead ramped up his violent resistance. 

A suspect in this situation either knows or should know what 

can happen next. At the very least, it is not clearly 

established that the logic of our warning rule applies when 

all past warnings have failed, and a violent situation has 

grown more dire.

I must lastly respond to the majority’s assertion that 

Agdeppa has somehow conceded that he had the opportunity 

to issue a final warning before he shot Dorsey. The district 
48 SMITH V. AGDEPPA

court, which said virtually nothing about Agdeppa’s failure 

to warn (again, the plaintiff barely raised the issue below), 

made no such finding. The majority instead seizes on the 

fact that Agdeppa stated in his deposition and in a 

declaration that he yelled “stop” before shooting. From this, 

the majority asserts that “Agdeppa never claimed that it was 

not practicable to give a warning,” and goes so far as to assert 

that Agdeppa in fact “cannot argue that it was not possible 

for Agdeppa to warn Dorsey.” (emphasis added). Once 

again, the majority seriously misconstrues the record.

Agdeppa has never conceded that it was practicable for 

him to give a warning for the simple reason that the warning 

he claims he gave obviously falls short of the more detailed 

warning the majority has in mind. The majority of course 

does not tell us what Agdeppa was supposed to have said, 

but whatever it was, it was more extensive than “stop.” After 

setting up Agdeppa’s own statements as the supposed basis 

for the practicability of a further warning, the majority then 

remarkably represents that “there is no conflicting evidence 

on this point.” But there is extensive undisputed evidence on 

this point, most notably the harrowing video and audio 

recordings showing this was not a situation in which quaint 

notions of “practicability” could have reasonably been at the 

forefront of the officers’ minds. Given the recordings and 

the BOPC report, the majority cannot feign that we somehow 

have no idea what happened in that locker room. The 

majority claims that on the bodycam recordings, “there are 

only grunting and banging sounds,” but that is demonstrably 

incorrect. We know much more than enough to conclude 

that the warning obligation the majority imposes was not 

clearly established in the circumstances these officers 

confronted.
SMITH V. AGDEPPA 49

Instead, the majority opinion at timesseems to imply that 

because our warning rule contains a practicability 

component, whether a warning was practicable will always 

be a question of fact. But that would mean that qualified 

immunity should be denied in every case in which an officer 

fails to warn, contrary to our case law that “[t]he absence of 

a warning does not necessarily mean that [an officer’s] use 

of deadly force was unreasonable.” Gonzalez, 747 F.3d at 

797. The problem here is not Agdeppa supposedly 

conceding away his entire defense—he did no such thing—

but the majority applying a legal rule that, as a matter of law, 

cannot serve as clearly established law.

All of this would be bad enough in any case erroneously 

denying qualified immunity, in which the unwarranted 

burdens of further litigation are added to the already 

burdensome responsibilities that law enforcement officers 

undertake in protecting the public. But the dangers of 

today’s decision are especially ominous. At what microsecond interval in the final heated moments of this escalating 

confrontation was Agdeppa somehow legally required to hit 

the “pause button” and recite some yet-undisclosed, courtcreated warning script? The uncertainty the majority 

opinion invites stands as a further condemnation of its 

holding. And the rule of law it treats as clearly established 

on these facts could well make the difference in whether 

officers like Agdeppa and Rodriguez make it out of a violent 

altercation alive. No clearly established law remotely 

requires officers who already put themselves in harm’s way 

to do so as riskily as the majority opinion now demands. 

Because these grave consequences result from the 

majority’s manifest misapplication of the Supreme Court’s 

clear directives on qualified immunity, I respectfully dissent.