Critical Incident Breakdown: Penny v. Azmy

On June 7 ,2024, the 9th Circuit Court of Appeals issued their opinion in this incident. In their opinion, based on the teachings from Graham v. Connor, the court concentrated on the threat Calonge posed at the time of shooting to the officers and the public, the crime he was suspected of committing, the resistance he posed to the officers, including if he was trying to flee or evade the officers.

If you're new to understanding qualified immunity hearings, its important to understand that the court doesn't listen to the officer's version of events. Instead, they use the facts as reported by the person suing the officers unless there is evidence in the record that clearly contradicts what that person claims happened, such as body or dash camera footage.

So here, because Calonge is deceased, they're using the version of events as told by his mother who wasn't present and the body camera footage of the officers. Also, remember that this is a Federal law suit so the court will not discuss State law, like Penal Code 835a, although this incident occurred before PC835a had its major overhaul in 2020.

Before explaining their opinion, the court "resolved" three disputed facts by making assumptions based on what the mother claimed happened and what they could see and hear on body camera footage. The first assumption was that Calonge was not drawing his firearm when he was shot since the four officers had differing accounts about this and the body camera footage did not show it. Second, they assumed there were no bystanders because although the officer who shot Calonge said there were bystanders ten or fifteen yards ahead of Calonge, other officers did not see anyone and the body camera footage did not show anyone. And third, they assumed the officers never told Calonge to stop or get on the ground, since that also was not shown in the footage.

Now, moving on the courts analysis, let's start with the Threat the suspect posed to officers or the public. The court said, "Taking the facts in light most favorable to Ms. Calonge, the totality of the circumstances plainly did not justify deadly force." "...police officers many not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed." "An immediate threat might be indicated by a furtive movement, harrowing gesture, or serious verbal threat. If a person possesses a weapon but doesn't reach for his waistband or make some similar threatening gesture, it would clearly be unreasonable for the officers to shoot him." By the way, that sentence requiring a furtive movement, harrowing gesture or serious verbal threat appears in nearly every incident where a suspect was shot while in possession of a firearm. The court said, “His mere possession of a gun did not justify the use of deadly force. Similarly, given that we must assume there were no bystanders in the vicinity, a threat to those nonexistent bystanders did not justify the use of deadly force either.”

Now turning to the crime Calonge was suspected of committing, the court said, “A reasonable officer in (the officer’s) position would have been aware of conduct by Calonge amounting to, at most, carrying a loaded firearm in public, a misdemeanor in California. Under our caselaw, such an offense is not a serious crime that could justify a high degree of force.”

Regarding the Resistance Calonge presented, the court noted that the officers never told him to stop and they gave him conflicting commands about what he need to do including “drop the gun” and “do not reach for it.” The court said, “Given that the gun was in Calonge’s waistband, it was impossible for him to both drop it and not reach for it. We have explained that when officers initially give conflicting commands, a person becomes non-compliant only after an unequivocal command is given and the person does not comply.”

And finally, the court noted that no warning was given to Calonge before he was shot. They said, “To be sure, on its own, the absence of a warning does not necessarily mean that deadly force was unreasonable. But here, (the officer) had time to warn his fellow officers. Then more time passed before he shot Calonge. A warning was therefore clearly practicable. The fact that none was given makes the already unreasonable use of force even less reasonable.

The court decided, “…it would have been clear to a reasonable officer in (the officer’s) position that shooting Calonge was unlawful. (The officer) is thus not entitled to qualified immunity.”

The issues mentioned by the 9th Circuit included the lack of a warning, the lack of clear directions to the suspect, there did not appear to be anyone in danger in the vicinity of the suspect, the lack of furtive movement or harrowing gesture toward the gun, and the lack of a serious crime.

Given that information, sergeants should discuss with their shift how they might respond to a similar incident. The discussion should include considerations like taking into account the crime, threat and resistance posed by the suspect as well as giving use of force warnings, providing clear commands, getting additional resources on scene, utilizing de-escalation techniques, and trying to slow the pace of the incident, at least as much as one can control it.

As always, be sure to refer to your agency policy which can be more restrictive on officers than the law requires.

This video and the case is available in the additional resources of The Briefing Room Learning Platform.

The Briefing Room has a short training video available on this exact scenario so agency supervisors can easily train every officer in your agency on this essential topic.

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