Paulette Smith, individually and as Successor in Interest to Albert Dorsey, deceased v. Edward Agdeppa, an individual

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
Submission Withdrawn April 11, 2023
Resubmitted May 4, 2023
San Francisco, California
Filed August 30, 2023

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2 SMITH V. A GDEPPA
Before: Consuelo M. Callahan, Morgan Christen, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress;
Dissent by Judge Christen
SUMMARY*
Qualified Immunity/Deadly Force
The panel reversed the district court’s denial of qualified
immunity to police officer Edward Agdeppa in a 42 U.S.C.
§ 1983 action alleging that Agdeppa used unreasonable
deadly force when he shot and killed Albert Dorsey.
The panel first held that it had jurisdiction over this
interlocutory appeal because, notwithstanding the factual
disputes, Agdeppa only contested the district court’s legal
conclusion that there was a violation of Dorsey’s clearly
established rights.
The panel held that because Agdeppa did not challenge
the district court’s determination that a reasonable juror
could conclude that Agdeppa violated Dorsey’s Fourth
Amendment right to be free from excessive force, this appeal
turned solely on the second step of the qualified immunity
analysis—whether the claimed unlawfulness of Agdeppa’s
conduct was “clearly established.”
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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SMITH V. A GDEPPA 3
The panel held that Agdeppa’s use of deadly force,
including his failure to give a warning that he would be using
such force, did not violate clearly established law given the
specific circumstances he encountered. In evaluating
whether Dorsey posed an immediate threat to safety that
would justify the use of deadly force, the panel noted that it
was undisputed that Agdeppa and another officer repeatedly
warned Dorsey to stand down; unsuccessfully tried to use
non-lethal force; and engaged in a lengthy, violent struggle
in a confined space with Dorsey, who dominated the officers
in size and stature and who had gained control of a
taser. Because none of the court’s prior cases involved
similar circumstances, there was no basis to conclude that
Agdeppa’s use of force here was obviously constitutionally
excessive. Moreover, past precedent would not have caused
Agdeppa to believe that he was required to issue a further
warning in the middle of an increasingly violent altercation.
Dissenting, Judge Christen stated that qualified
immunity was improper because Agdeppa’s characterization
of the facts conflicted with physical evidence and witness
statements, so much so that a reasonable jury could reject the
officers’ account of the shooting. This court has well-
established precedent that an officer must give a deadly force
warning if practicable, and a reasonable jury could conclude
that Agdeppa had the opportunity to give a deadly force
warning and failed to do so.

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4 SMITH V. A GDEPPA
COUNSEL
Kevin E. Gilbert (argued) and Carolyn M. Aguilar, Orbach
Huff Suarez & Henderson, Pleasanton, California; Susan E.
Coleman, Keiko J. Kojima, and Lisa W. Lee, Burke
Williams & Sorensen LLP, Los Angeles, California; for
Defendants-Appellant.
Edward M. Lyman III (argued), Family Legal APLC, Playa
Del Rey, California; Brian T. Dunn and James Bryant, The
Cochran Firm - California, Los Angeles, California; Megan
R. Gyongyos, Carpenter Zuckerman & Rowley LLP,
Beverly Hills, California; for Plaintiff-Appellee.
OPINION
BRESS, Circuit Judge:
Two police officers were dispatched to a gym after a man
reportedly threatened gym patrons and assaulted a security
guard. The suspect then violently attacked the officers and
refused to stop after they repeatedly deployed their tasers.
One officer eventually resorted to lethal force to end the
aggression. We are asked to decide whether this officer is
entitled to qualified immunity. We hold that he is. The
officer’s use of deadly force did not violate clearly
established law. For this sole reason, we reverse the district
court’s decision.

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SMITH V. A GDEPPA 5
I
A
We recite the facts in the light most favorable to the
plaintiff, noting when facts are disputed or when the account
of events is based principally on the officers’ descriptions.
When, as here, we have videotape of the events, we “view[]
the facts in the light depicted by the videotape.” Scott v.
Harris, 550 U.S. 372, 381 (2007).
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 were 5’1” and 5’5,” respectively, and each
weighed approximately 145 pounds. 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

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6 SMITH V. A GDEPPA
Dorsey continued to refuse, appearing to taunt 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.
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 police units. As
Dorsey became more combative, Agdeppa radioed in a

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SMITH V. A GDEPPA 7
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
continued to record audio, which included frequent bangs,
crashes, shouts of pain, and other indicia of a violent
confrontation.1
It is undisputed that a violent struggle ensued in the
locker room. Despite their further efforts, the officers were
unable to control Dorsey, who became increasingly
aggressive. At multiple points during the audio recordings,
the officers are repeatedly heard yelling at Dorsey to “Stop!”
and “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.
1 What transpired during the rest of the altercation is based largely on the
officers’ testimony and the bodycam audio. But for purposes of our later
legal analysis, the material aspects of the ensuing events are not
genuinely disputed, such as Dorsey violently resisting arrest, the officers
firing their tasers, and the fact that the violent struggle escalated in the
moments leading up to the shooting.

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8 SMITH V. A GDEPPA
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 shouting,
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
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
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 on 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 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

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SMITH V. A GDEPPA 9
were fired, though what is said is unclear. Whether a final
warning was given is disputed and cannot be readily
ascertained from the audio recordings. Immediately
thereafter, Agdeppa announced over his police radio that
shots had been fired and that an officer and suspect were
down.
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 cheek and right jaw, abrasions
on her ear and hands, and a pulled muscle behind her knee.
B
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 witnesses who were in
the locker room substantiating key moments in the
encounter. In particular, the BOPC report 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] was objectively
reasonable.”
The witnesses’ accounts in the BOPC findings
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

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10 SMITH V. A GDEPPA
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.”2 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 push the TASER into [Rodriguez]’s face,
simultaneously hitting [Rodriguez] with his right fist, which
had the handcuffs attached.” Indeed, the BOPC report
arguably 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.”
The BOPC report faulted the officers for poor planning
and for failing to use de-escalation tactics earlier in the
encounter. Because of these “tactical decisions” earlier in
the encounter that placed the officers at a “tactical
disadvantage,” the BOPC report on this basis found the
ultimate use of force unreasonable and outside of department
policy. But the BOPC also found—relying on independent
2 Although the BOPC report refers to Officers “A” and “B,” it is apparent
based on the bodycam video and audio and the rest of the record that “A”
is Agdeppa and “B” is Rodriguez.

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SMITH V. A GDEPPA 11
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
serious bodily injury.
C
Paulette Smith, Dorsey’s mother, filed this lawsuit
against Agdeppa and the City of Los Angeles. Smith
claimed a violation of 42 U.S.C. § 1983 based on Agdeppa’s
allegedly unreasonable use of deadly force. She also sought
to hold the City liable under Monell v. Dep’t of Social
Services, 436 U.S. 658 (1978), for an assertedly
unconstitutional policy or custom. Smith further brought
wrongful death actions against Agdeppa and the City under
California law. The parties later stipulated to the City’s
dismissal from the case.
Agdeppa moved for summary judgment. He argued that
his use of deadly force was objectively reasonable and that
regardless, he was entitled to qualified immunity. The
district court found there was a genuine dispute over whether
Dorsey posed an immediate threat to the officers sufficient
to warrant the use of deadly force. In particular, the district
court found disputes of fact concerning whether the severity
of the officers’ injuries was consistent with a threat of death

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12 SMITH V. A GDEPPA
or serious injury, whether (based on a bullet’s reported
trajectory) Dorsey was crouching over Rodriguez when
Agdeppa discharged his weapon, and whether witnesses
intervened in the altercation. The district court also found
that a reasonable jury could conclude that Agdeppa failed to
warn Dorsey before firing the fatal shots.
The court then concluded that because a jury could find
that a reasonable officer would not have believed Dorsey
posed an immediate threat, Agdeppa was not entitled to
qualified immunity. The court denied Agdeppa’s motion for
summary judgment on the plaintiff’s state law claims for
similar reasons. Agdeppa timely appeals.
II
The denial of summary judgment is usually not 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.” Plumhoff v. Rickard, 572
U.S. 765, 771 (2014). “[B]ecause ‘pretrial orders denying
qualified immunity generally fall within the collateral order
doctrine,’” in the qualified immunity context we “typically
have jurisdiction over interlocutory appeals from the denial
of summary judgment.” Estate of Anderson v. Marsh, 985
F.3d 726, 730 (9th Cir. 2021) (quoting Plumhoff, 572 U.S. at
772). Nevertheless, our “interlocutory review jurisdiction is
limited to resolving a defendant’s ‘purely legal contention
that his or her conduct did not violate the Constitution and,
in any event, did not violate clearly established law.’” Id. at
731 (alterations omitted) (quoting Foster v. City of Indio,
908 F.3d 1204, 1210 (9th Cir. 2018)).
Smith contends that Agdeppa’s appeal is based only on
factual disputes that are not reviewable on interlocutory
appeal. That is not correct. Agdeppa only contests the legal

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SMITH V. A GDEPPA 13
conclusion that there was a violation of Dorsey’s clearly
established rights. We have jurisdiction “to the extent ‘the
issue appealed concerned, not which facts the parties might
be able to prove, but, rather, whether or not certain facts
showed a violation of clearly established law.’” Foster, 908
F.3d at 1210 (quoting Johnson v. Jones, 515 U.S. 304, 311
(1995)). The factual disputes that the district court
highlighted therefore do not preclude our review because we
“have jurisdiction to review an issue of law determining
entitlement to qualified immunity—even if the district
court’s summary judgment ruling also contains an evidence-
sufficiency determination.” Marsh, 985 F.3d at 731; see also
Wilkins v. City of Oakland, 350 F.3d 949, 951–52 (9th Cir.
2003).
We review de novo the district court’s denial of
summary judgment. Tobias v. Arteaga, 996 F.3d 571, 579
(9th Cir. 2021). We view the facts and draw reasonable
inferences in the light most favorable to Smith, the
nonmoving party. District of Columbia v. Wesby, 138 S. Ct.
577, 584 n.1 (2018). “Although we ‘assum[e] that the
version of material facts asserted by the [plaintiff] is correct,’
we may consider facts offered by the defendant that are
‘uncontradicted by any evidence in the record.’” Hopson v.
Alexander, 71 F.4th 692, 697 (9th Cir. 2023) (citations
omitted) (first quoting Jeffers v. Gomez, 267 F.3d 895, 903
(9th Cir. 2001); and then quoting Wilkinson v. Torres, 610
F.3d 546, 551 (9th Cir. 2010)).
A
The doctrine of qualified immunity protects government
officials from § 1983 liability unless “(1) they violated a
federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was ‘clearly established at the

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14 SMITH V. A GDEPPA
time.’” Wesby, 138 S. Ct. at 589 (quoting Reichle v.
Howards, 566 U.S. 658, 664 (2012)). Because Agdeppa
does not challenge the district court’s determination that a
reasonable juror could conclude that Agdeppa violated
Dorsey’s Fourth Amendment right to be free from excessive
force, this appeal turns solely on the second step of the
qualified immunity analysis—that is, whether the claimed
unlawfulness of Agdeppa’s conduct was “clearly
established.”
For a right to be clearly established, it must be
“sufficiently clear that every reasonable official would
understand that what he is doing violates that right.”
Mullenix v. Luna, 577 U.S. 7, 11–12 (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)). This means
that “every ‘reasonable official would understand that what
he is doing’ is unlawful.” Wesby, 138 S. Ct. at 589 (quoting
al-Kidd, 563 U.S. at 741–42). 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 (first quoting Hunter v. Bryant,
502 U.S. 224, 228 (1991) (per curiam); then quoting al-Kidd,
563 U.S. at 735). This “demanding” requirement “protects
‘all but the plainly incompetent or those who knowingly
violate the law’” and calls for “a high ‘degree of
specificity.’” Wesby, 138 S. Ct. at 589–91 (first quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986); then quoting
Mullenix, 577 U.S. at 13); see also Rivas-Villegas v.
Cortesluna, 142 S. Ct. 4, 7–8 (2021) (per curiam).
The Supreme Court has “repeatedly stressed that courts
must not ‘define clearly established law at a high level of

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SMITH V. A GDEPPA 15
generality.’” Wesby, 138 S. Ct. at 590 (quoting Plumhoff,
572 U.S. at 779). And 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 (alteration in original) (quoting Saucier v. Katz,
533 U.S. 194, 205 (2001)). For us, then, “[t]he question . . .
is whether ‘clearly established law prohibited’ [Agdeppa]
from using the degree of force that he did in the specific
circumstances that the officers confronted.” O’Doan v.
Sanford, 991 F.3d 1027, 1037 (9th Cir. 2021) (quoting City
of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per
curiam)).
The district court concluded that Agdeppa was not
entitled to qualified immunity because “[a]t the time of the
incident, it was ‘clearly established’ 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.’” (quoting
Tennessee v. Garner, 471 U.S. 1, 11 (1985)). This reasoning
was insufficient because, outside of an obvious case, “[t]he
general principle that deadly force requires a sufficient threat
hardly settles th[e] matter.” Mullenix, 577 U.S. at 14; see
also Rivas-Villegas, 142 S. Ct. at 8. As we have previously
recognized, “[t]he standards from Garner . . . ‘are cast at a
high level of generality,’ so they ordinarily do not clearly
establish rights.” Isayeva v. Sacramento Sheriff’s Dep’t, 872
F.3d 938, 951 (9th Cir. 2017) (quoting Brosseau v. Haugen,
543 U.S. 194, 199 (2004) (per curiam)). Instead, “[t]he
dispositive question is ‘whether the violative nature of
particular conduct is clearly established.’” Id. at 947
(emphasis in original) (quoting Mullenix, 577 U.S. at 12).

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16 SMITH V. A GDEPPA
Applying these directives from the Supreme Court, we
now analyze whether Agdeppa is entitled to qualified
immunity. We conclude that he is.
B
To assess the reasonableness of a particular use of force,
“we 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 v. Connor, 490 U.S. 386, 396 (1989)). To do 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, 991 F.3d at 1037 (quoting Miller, 340
F.3d at 964). Another factor “relevant to the reasonableness
of force” is whether proper warnings were or could have
been given. Isayeva, 872 F.3d at 947. In conducting this
analysis, we do not “second-guess officers’ real-time
decisions from the standpoint of perfect hindsight,” O’Doan,
991 F.3d at 1036, and 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.
The district court found that factual disputes existed as
to whether the severity of the officers’ injuries was
consistent with a threat of death or serious injury, whether
Dorsey remained standing over Rodriguez until the final shot
was fired, whether other witnesses entered the locker room

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SMITH V. A GDEPPA 17
during the struggle, and whether Agdeppa warned Dorsey
before using lethal force.
In some instances, these asserted disputes of fact are not
genuine. For example, Smith argued below that, based on
reported bullet trajectories, an autopsy report “raise[d]
questions as to whether, in fact, Dorsey was standing over
Rodriguez until Agdeppa’s final 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 speculation of counsel. See
Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., 289
F.3d 589, 593 n.4 (9th Cir. 2002) (“[T]he arguments and
statements of counsel ‘are not evidence and do not create
issues of material fact capable of defeating an otherwise
valid motion for summary judgment.’” (quoting Smith v.
Mack Trucks, 505 F.2d 1248, 1249 (9th Cir. 1974) (per
curiam))). Indeed, the district court 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.”
Similarly, the district court identified a potential factual
dispute as to whether the BOPC report contradicted
Agdeppa’s assertion that he was several feet away from
Dorsey when he fired the fatal shots, suggesting Agdeppa
may have been much closer, which in turn could call into
question Agdeppa’s credibility. But the district court
acknowledged that “plaintiff does not raise this argument.”
And the BOPC report does not identify any apparent
contradiction on this point. Rather, the BOPC report
specifically credits Agdeppa as having fired “from an
approximate distance of 5–7 feet.” And the report later
concludes that the BOPC’s “investigation revealed that

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18 SMITH V. A GDEPPA
[Agdeppa] fired five rounds at [Dorsey], from an
approximate distance of five to seven feet.” The BOPC
report at one point referenced Witness F’s recollection that
Dorsey was holding Agdeppa’s wrist as the first shots were
fired, as Witness F recalled that Dorsey had actually grabbed
Agdeppa’s gun and was attempting to pull it out of its
holster. But we do not rely on that narrative, even as we note
that it would strongly favor Agdeppa because it suggests a
situation even more dire than the one Agdeppa recalled.3
In any event, even accepting the claimed factual disputes
that the district court identified, Agdeppa is still entitled to
qualified immunity. Stated differently, the asserted factual
disputes do not take away from the core undisputed features
of this case which, at a minimum, confirm that any
constitutional violation was not clearly established. See
Isayeva, 872 F.3d at 945. We do not resolve any factual
disputes, nor are any of the factual disputes that the district
court identified dispositive. We instead consider the
disputed facts in the light most favorable to Smith, alongside
the undisputed facts and the video and audio recordings,
which provide more than sufficient basis for reaching the
legal conclusion that qualified immunity is warranted under
the second step of the qualified immunity analysis.
3 Though it does not suggest he did not witness the events leading up to
the shooting, the BOPC report also states that Witness F was no longer
in the locker room at the moment shots were fired. If true, this would
mean that Witness F’s recollection could not legitimately conflict with
Agdeppa’s account of his positioning at the time of the shooting. And if
the report was incorrect on this point and Witness F’s testimony about
Dorsey grasping for Agdeppa’s gun was credited, then the situation
would have been more dangerous than Agdeppa recalled. It is
immaterial which is correct because either way, this favors Agdeppa.

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SMITH V. A GDEPPA 19
The “most important” factor for evaluating Agdeppa’s
use of lethal force is “whether the suspect posed an
immediate threat to the safety of the officers or others.” S.B.
v. Cnty. of San Diego, 864 F.3d 1010, 1013 (9th Cir. 2017)
(quoting George v. Morris, 736 F.3d 829, 838 (9th Cir.
2013)). In this case, it is undisputed that the officers were
placed in a high-stress, rapidly developing situation
involving a person who had reportedly assaulted a gym
security officer and threatened others, and who was violently
resisting the officers and assaulting them in an enclosed area.
See Ames v. King Cnty., 846 F.3d 340, 349 (9th Cir. 2017)
(explaining that courts should “focus [their] inquiry . . . on
the serious—indeed, life-threatening—situation that was
unfolding at the time”). Dorsey weighed 280 pounds and
stood at 6’1”, dominating Agdeppa and Rodriguez in size
and stature. See Isayeva, 872 F.3d at 950 (holding that a
“disparity in size posed obvious risks of physical harm to the
officers”). The recordings from the body cameras confirm
that after officers repeatedly implored Dorsey to stop,
Dorsey violently resisted and assaulted the officers, in a
struggle that grew more intense as it wore on. That is the
same account that the BOPC report conveys.
When the officers were unable to bring Dorsey under
their physical control with their hands and bodies, they both
tried to subdue him with their tasers, but to no avail.
Throughout the encounter, the officers are repeatedly heard
shouting at Dorsey to stop resisting. Just before the fatal
shots were fired, the officers can be heard crying out in pain
as crashing and thrashing noises intensify. And in the BOPC
report, two independent witnesses corroborated the severity
of Dorsey’s attack on the officers. Only after the use of non-
lethal force had proven ineffective, and only after the assault
continued to intensify—with Dorsey having gained control

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20 SMITH V. A GDEPPA
of Rodriguez’s taser—did Agdeppa fire the fatal shots. See
Isayeva, 872 F.3d at 952 (holding that officers were entitled
to qualified immunity where non-lethal force “plainly did
not work” and where “the officers were quickly losing in
hand-to-hand combat”).4
We are not persuaded that the extent of the officers’
injuries changes the calculus here. Although the plaintiff
focuses heavily on this issue (as did the district court), the
officers’ injuries cannot take away from what the bodycam
recordings, Dorsey’s taking of the taser, the BOPC report,
and the other undisputed facts clearly demonstrate. Nothing
about the officers’ account required injuries more severe.
The dissent suggests that the district court described
Rodriguez as “unscathed” following the incident, but the
portion of the district court decision the dissent cites merely
recites this as an argument made by the plaintiff.
Nor, in any event, were the officers’ injuries
insubstantial. Agdeppa sustained a prominent facial
laceration. He received sutures on his nose (as confirmed in
post-incident photographs) and suffered a concussion that
reportedly left him unable to work for months. Rodriguez
reported swelling on her face and jaw, abrasions, and a
pulled muscle. While it is true, as the district court noted,
that neither officer appears to have suffered broken bones or
more serious injuries, that fortuity does not alter the qualified
immunity analysis. No clearly established law requires the
4 The parties debate at length whether our decision in Isayeva, which
reversed the denial of qualified immunity, is on all fours with this case,
and the district court focused its analysis on that precedent. But the
burden is not on the officers to prove they fit perfectly within the facts
of a case granting qualified immunity; the burden is on the plaintiff to
show a violation of a clearly established right in the specific
circumstances at issue. See Isayeva, 872 F.3d at 946.

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SMITH V. A GDEPPA 21
officers to have sustained more grievous injuries or worse
before using lethal force in the particular situation they
confronted.
The dissent relies on 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), but contrary to the
dissent, these cases did not involve “similar circumstances.”
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. 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, meanwhile, an officer shot a man in
the head at point blank range with no warning and no prior
resort to non-lethal 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 thus
involved genuine disputes of highly material facts. There
are no analogous disputes here, given the obvious import of
the video and audio recordings and the rest of the record.
Nor do Newmaker and Gonzalez clearly establish the
unlawfulness of Agdeppa’s conduct.
Smith argues that Deorle v. Rutherford, 272 F.3d 1272
(9th Cir. 2001), clearly establishes that Agdeppa violated
Dorsey’s Fourth Amendment rights. In Deorle, officers
were dispatched to Deorle’s residence after he became
suicidal and acted erratically, but Deorle “was physically
compliant,” “generally followed all the officers’
instructions,” and did “not . . . touch, let alone attack,

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22 SMITH V. A GDEPPA
anyone.” 272 F.3d at 1276–77. That is obviously not akin
to what happened here. Indeed, as to the Deorle case in
particular, the Supreme Court has already “instructed” us
“not to read [our] decision in that case too broadly in
deciding whether a new set of facts is governed by clearly
established law.” Kisela v. Hughes, 138 S. Ct. 1148, 1154
(2018) (per curiam).
Smith also argues that qualified immunity should be
denied based on the district court decisions in Rose v. Cnty.
of Sacramento, 163 F. Supp. 3d 787 (E.D. Cal. 2016), Berger
v. Spokane Cnty., 2017 WL 579897 (E.D. Wash. Feb. 13,
2017), and Lerma v. City of Nogales, 2014 WL 4954421 (D.
Ariz. Sept. 30, 2014). “We have been somewhat hesitant to
rely on district court decisions” in the second prong of the
qualified immunity analysis because “‘district court
decisions—unlike those from the courts of appeals—do not
necessarily settle constitutional standards.’” Evans v.
Skolnik, 997 F.3d 1060, 1067 (9th Cir. 2021) (quoting
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011)). And in
any event, the district court cases on which Smith relies dealt
with factual circumstances materially distinct from those
before us. Those cases therefore could not place the
constitutional question here beyond debate, even assuming
they had the precedential effect of appellate court decisions.
Finally, this case is “far from the obvious one where
Graham and Garner alone offer a basis for decision.”
Brosseau, 543 U.S. at 199. The “situations where a
constitutional violation is ‘obvious,’ in the absence of any
relevant case law, are ‘rare.’” O’Doan, 991 F.3d at 1044
(quoting Wesby, 138 S. Ct. at 590). And application of the
“obviousness” exception is “especially problematic in the
Fourth-Amendment context” due to the often fact-specific
nature of the varied situations officers confront. Sharp v.

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SMITH V. A GDEPPA 23
Cnty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017); see also
O’Doan, 991 F.3d at 1044. There is no basis on these facts
to conclude that the use of force here was obviously
constitutionally excessive, in the absence of any precedent
bearing more closely on the specific circumstances
presented.
C
Smith makes one additional argument that is somewhat
different: she maintains that even if the degree of force here
was permissible based on the threat the officers faced,
Agdeppa was constitutionally required to warn Dorsey
before using such deadly force. For this, Smith relies on our
observation in Harris v. Roderick, 126 F.3d 1189 (9th Cir.
1997), that “whenever practicable, a warning must be given
before deadly force is employed.” Id. at 1201. We made a
similar observation in Gonzalez. There, we stated that “[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, 126 F.3d at
1201).
These general statements from our prior cases cannot
carry the day here, whether Smith’s argument is a standalone
“warning” claim or part of the broader Graham analysis.
The difficulty we have with Smith’s warning argument is
that it purports to “define clearly established law at a high
level of generality,” which the Supreme Court has
“repeatedly told courts” not to do. Kisela, 138 S. Ct. at 1152
(quoting City & Cnty. of S.F. v. Sheehan, 575 U.S. 600, 613
(2015)). The qualified immunity analysis “must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Brosseau, 543 U.S. at 198
(quoting Saucier, 533 U.S. at 201). And Smith has not

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24 SMITH V. A GDEPPA
identified any precedent or body of precedent suggesting,
much less confirming, that Agdeppa’s alleged failure to give
a warning before using deadly force was obviously unlawful
in the circumstances Agdeppa faced. See Sharp, 871 F.3d at
911 (noting that plaintiffs “must point to prior case law that
articulates a constitutional rule specific enough to alert these
deputies in this case that their particular conduct was
unlawful” (emphasis in original)).
Our very framing of the “warning” principle itself
presupposes that it is not a one-size-fits-all proposition that
applies in every case or context. We have stated only that
the rule applies “[i]n general,” “‘whenever practicable.’”
Gonzalez, 747 F.3d at 794 (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 of deadly force was unreasonable.” Id. at 797
(emphasis added). The flexibility built into our “warning”
rule makes it more difficult for that rule, standing alone, to
clearly establish a constitutional violation in any given case.
The origins of our “warning” rule only further confirm
that it typically operates at a level of generality that is too
elevated for qualified immunity purposes. We sourced our
“warning” rule to the Supreme Court’s decision in Garner.
See Harris, 126 F.3d at 1201 (citing Garner, 471 U.S. at 11–
12). But as we have already noted above, Garner set forth
standards that are for the most part pitched at too high a level
of generality to overcome a qualified immunity defense.
See, e.g., Rivas-Villegas, 142 S. Ct. at 8; Brosseau, 543 U.S.
at 199.
The general warning principle we have articulated thus
does not, on its own, invariably indicate when a warning is
required. Existing precedent does not clearly establish in

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SMITH V. A GDEPPA 25
every context when such a warning is “practicable,” what
form the warning must take, or how specific it must be. Nor
does existing law clearly establish how the absence of a
warning is to be balanced against the other Graham factors
in the context of a case such as this. That officers may be
constitutionally required to provide a warning before using
deadly force in some cases does not mean it is clearly
established that such a warning was required in this case.
As a result, Smith was required to come forward with
“existing precedent” that “squarely governs the specific facts
at issue.” Kisela, 138 S. Ct. at 1153 (quotation omitted). She
has not done so. The cases Smith 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 non-lethal
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

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26 SMITH V. A GDEPPA
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 non-lethal force.
Id. at 1130–32, 1137–38.
These cases bear none of the hallmarks of this case, in
which it is undisputed that the officers repeatedly and
unsuccessfully tried to use non-lethal force and were
engaged in a lengthy, violent struggle with a large assailant
in a tightly enclosed area, who was striking them and who
had already gained control of an officer’s taser. Dorsey was
given numerous opportunities—through repeated verbal
commands, attempted handcuffing, and taser deployments—
to stop his attack. By the officers’ words and actions, Dorsey
was warned throughout the encounter. He was given
numerous opportunities to stand down, and he instead
continued to fight. The past precedents we discussed above
would not have caused Agdeppa to believe he was required
to issue a further warning—to call a “time-out”—in the
middle of an increasingly violent altercation.
The dissent’s contention that a jury could find that
Agdeppa gave no deadly force warning assumes that such a
warning was constitutionally required here. As we have
explained, no clearly established law required this in the
circumstances Agdeppa confronted. Nor, as the dissent
suggests, has Agdeppa conceded that it was practicable for
him to give the more extensive warning that the dissent
apparently envisions in the final moments of the escalating
confrontation. Agdeppa is entitled to qualified immunity
because Smith does not identify “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)).

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SMITH V. A GDEPPA 27
* * *
For the foregoing reasons, we reverse the district court’s
decision denying Agdeppa qualified immunity and remand
for proceedings consistent with this opinion.
REVERSED and REMANDED.
CHRISTEN, Circuit Judge, dissenting:
Officer Edward Agdeppa does not dispute that a
reasonable jury could find that he violated Albert Dorsey’s
Fourth Amendment right to be free from excessive force.
This appeal is limited to whether Agdeppa is entitled to
qualified immunity. As the district court recognized,
qualified immunity was improper because there were
significant discrepancies between the officers’ versions of
their efforts to handcuff Dorsey in a locker room and other
record evidence—so much so that a reasonable jury could
reject the officers’ account of the shooting.
Agdeppa claims that he yelled “stop” before shooting,
but no such warning can be heard on either of the officers’
body-cam recordings. The defense cannot argue that it was
not possible for Agdeppa to give Dorsey a deadly force
warning because Agdeppa’s sworn statements admit that he
had time to repeatedly tell Dorsey to “stop” during the four-
minute locker room struggle. The officers tased Dorsey at
least five times during this interval, yet Agdeppa never
claimed to have warned Dorsey that he would switch from
using his taser to using his firearm if Dorsey did not submit
to being handcuffed.

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28 SMITH V. A GDEPPA
The existence of Dorsey’s constitutional rights is not in
doubt: he had a right to be free from the use of excessive
force, and police officers are certainly allowed to use deadly
force if they face imminent risk of serious harm.1 We also
have well-established precedent that an officer must give a
deadly force warning if it is practicable to do so. 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). There is no room for disputing that
Officer Agdeppa was on notice of both of these well-
established constitutional rules. Thus, as the district court
correctly recognized, the only unresolved issues in this case
are factual: (1) whether a reasonable officer in Agdeppa’s
position would have believed that Agdeppa’s partner was in
imminent danger; and (2) whether it was practicable for
Agdeppa to warn Dorsey before using lethal force and he
nevertheless failed to do so.
The majority mistakenly asserts that the district court
denied summary judgment because “at the time of the
incident it was ‘clearly established’ that ‘where 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.’”
(alternations accepted). That was the district court’s
recognition of the correct legal standard, not the reason it
denied qualified immunity. The court denied qualified
immunity because “a jury could find that a reasonable officer
in Agdeppa’s position would not have believed that
1 See Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994)) (“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.’” (emphasis removed) (quoting
Tennessee v. Garner, 47 U.S. 1, 3 (1985)).

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SMITH V. A GDEPPA 29
[Agdeppa’s partner] or anyone else was in imminent danger
and thus, would have understood that his use of deadly force
violated plaintiff’s Fourth Amendment rights.”
Rather than construing disputed facts in the light most
favorable to the non-moving party, the majority usurps the
jury’s role. It avoids Agdeppa’s sworn statements, which
leave little room to doubt that he had an opportunity to
provide a deadly force warning, and sidesteps other evidence
that would allow a jury to decide that the officers were not
at imminent risk when Agdeppa shot Dorsey. We lack
interlocutory jurisdiction to review a district court’s order
denying qualified immunity when the decision turns on
factual disputes rather than legal ones. Peck v. Montoya, 51
F.4th 877, 885–86 (9th Cir. 2022). The majority errs by
disregarding this jurisdictional limitation, re-weighing the
evidence, and deciding that the factual disputes identified by
the district court are not material. For all of these reasons, I
respectfully dissent.
I.
Our review of Agdeppa’s interlocutory appeal is limited
to the “purely legal . . . contention that [his] 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 v. Rickard,
572 U.S. 765, 773 (2014)). 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.” Johnson v.
Jones, 515 U.S. 304, 313 (1995). This rule forecloses 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

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30 SMITH V. A GDEPPA
Anderson v. Marsh, 985 F.3d 726, 731 (9th Cir. 2021)
(quoting Foster, 908 F.3d at 1210) (emphasis in original).
When a 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 ex rel. Lopez v. Gelhaus, 871 F.3d
998, 1007–08 (9th Cir. 2017) (quoting Watkins v. City of
Oakland, 145 F.3d 1087, 1091 (9th Cir. 1998)).
Deadly force cases present additional, unique challenges
because defendant officers are often the only surviving
eyewitnesses. See, e.g., Gonzalez, 747 F.3d at 794; Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir. 1994). 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 that credibility is
genuinely in doubt).
The district court knew there was evidence in the record
that contradicted the officers’ statements. The court was
obligated to leave it to the jury to consider that evidence and
to decide whether it was 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, . . .

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SMITH V. A GDEPPA 31
the district court may not make credibility determinations or
weigh conflicting evidence.”).
To assemble its narrative of the events leading up to the
locker room shooting, the majority relies heavily on the
officers’ testimony, the audio-only recordings from the
officers’ body-cams, and especially on select portions of an
internal investigation report prepared by the Los Angeles
Board of Police Commissioners. The record also includes
statements from two security guards, an autopsy report, and
photos of the officers’ bruises and cuts. Considered
together, the evidence is inconsistent; some of it supports
Officer Agdeppa’s account and some cannot be reconciled
with his description of the last three minutes before the
shooting. At the summary judgment stage, contested issues
of fact must be construed in plaintiff’s favor.
The majority correctly observes that when “we have
videotape of the events, we ‘view[] the facts in the light
depicted by the videotape.’”2 But in this case, the video does
not depict the salient facts. There is no dispute about what
happened when the officers initially made contact with
Dorsey: he refused to comply with their instructions to get
dressed, leave the locker room, and submit to being
handcuffed. It is the final three minutes before the shooting
that are in question, and there is no video of that part of the
encounter because the officers’ body-cams were knocked to
the floor. From the audio-only portion of the body-cam
recordings, the majority purports to find that the conflict
escalated and that cries of pain came from the officers rather
than Dorsey. But the audio is inconclusive. Banging sounds
can be heard, along with the officers’ warnings that they will
2 Maj. 5 (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)) (alteration
in original).

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32 SMITH V. A GDEPPA
tase Dorsey if he does not comply, followed by the sound of
tasers deploying. The audio recording sheds no light on
where Agdeppa and Dorsey were standing, or who was
doing what in the locker room, just before the shots were
fired. Agdeppa claims that he yelled for Dorsey to “stop”
before escalating from his taser to his gun, but that cannot be
heard on the audio. And contrary to the majority’s
interpretation of the audio-only portion of the recording, the
district court decided that “a rational fact finder could find
that both officers’ body-worn camera footage [is] consistent
with [plaintiff’s] account, rather than Agdeppa’s.”
The majority relies heavily on the Police
Commissioners’ factual finding that Agdeppa reasonably
believed Dorsey posed an imminent threat before Agdeppa
shot, but downplays the Commissioners’ conclusions that:
(1) the officers’ tactics warranted a finding of
Administrative Disapproval; and (2) Agdeppa’s use of
deadly force was unreasonable. The report concluded:
When assessed in light of the series of
substandard tactical decisions leading up to
Officer [Agdeppa]’s [officer-involved
shooting], and the nexus between those
decisions and the circumstances under which
Officer [Agdeppa] found [himself]
compelled to fire [his] weapon, the lethal use
of force by Officer [Agdeppa] was
unreasonable.
(emphasis added).
Tellingly, though the majority relies heavily on it,
Officer Agdeppa objected to the admission of the Police

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SMITH V. A GDEPPA 33
Commissioners’ report.3 This is unsurprising because, at
best, the report is a mixed bag for defendants.
The Commissioners’ report only summarized the
guards’ statements, but its narrative makes clear that one of
the guards told the Police Commissioners’ investigators that
Dorsey was holding Agdeppa’s arm when the shots were
fired. This guard’s account conflicts with Agdeppa’s
description that he was standing six to eight feet away from
Dorsey when he fired, and that Dorsey was still straddling
Rodriguez and pummeling her. 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 majority dismisses this contradiction
as not “dispositive.” But the question is whether this factual
dispute is material. See Simmons v. G. Arnett, 47 F.4th 927,
932 (9th Cir. 2022) (“A material fact is one that is needed to
prove (or defend against) a claim, as determined by the
applicable substantive law.”). Where Dorsey was standing
and what he was doing before Agdeppa shot him are
essential to determining whether a reasonable officer would
have believed that Dorsey posed an imminent threat of death
or serious bodily injury to Agdeppa’s partner. The actions
taken in the final few minutes before the shooting will
determine whether Agdeppa is entitled to qualified
immunity.
The majority describes the gym’s security guards as
“independent witnesses,” but a gym employee reported that
Dorsey assaulted one of the guards before the officers
3 The district court overruled Agdeppa’s objection and concluded that
the information in the report could be presented in a form admissible at
trial and as a public record.

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34 SMITH V. A GDEPPA
arrived. More important, the majority decides that the
statements the guards gave during the Police
Commissioners’ internal investigation corroborated
Agdeppa’s account, with no mention that some of the
statements attributed to the guards sharply contradicted
Agdeppa’s declaration and the narrative he gave to
investigators.
The majority recites a passage from the report that
recounts one of the security guards recalling that he assisted
in the locker room struggle and that Dorsey grabbed
Agdeppa’s gun but was unable to remove it from its holster,
yet neither of the officers recalled the guards being involved
and the report elsewhere states that the guards had left the
locker room or were in the process of leaving before the
shooting took place. The majority decides that whether one
of the guards accurately described what occurred in the final
moments is “immaterial,” either because the guard could not
impeach Agdeppa’s testimony about the final moments
before the shooting (because the guard was not there), or
because the guard’s narrative suggests that the situation in
the locker room was “even more dire than the one Agdeppa
recalled.” The majority cannot have it both ways. We are
not permitted to ignore the report’s conclusion that Officer
Agdeppa’s use of lethal force was unreasonable, nor ignore
that the guard provided statements that squarely contradicted
Agdeppa’s account.
In sum, the security guards’ descriptions of the encounter
differed from the officers’ accounts in several respects,
including the number of shots and volleys that Agdeppa
fired, whether Dorsey reached for Agdeppa’s firearm,
whether Dorsey was holding Agdeppa’s wrist when
Agdeppa fired, and whether Dorsey remained hunched over
Rodriguez when he was shot. To be sure, the guards

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SMITH V. A GDEPPA 35
described a struggle between Dorsey and the officers, but
given the conflicting record, it is for the fact finder to decide
whether the officers were at imminent risk of harm prior to
the shooting.
The Commissioners’ report incorporated the framework
for evaluating excessive force cases set out in Graham v.
Connor, 490 U.S. 386 (1989), along with Departmental
policies.4 The most important Graham factor is whether the
suspect posed an imminent threat to the safety of the officers
or others. Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.
2005) (en banc) (quoting Chew v. Gates, 27 F.3d 1432, 1441
(9th Cir.1994)).
Mapping the Graham factors onto the facts of this case:
Dorsey resisted arrest, but nothing suggests that he had
committed a serious crime before the officers physically
engaged with him and tried to handcuff him; there was no
danger Dorsey was concealing a weapon because he was not
wearing any clothing; and Dorsey did not present a flight
risk. Turning to the threat that Dorsey posed, the
4 The Commissioners quoted a familiar 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.
(quoting Graham, 490 U.S. at 396–97).

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36 SMITH V. A GDEPPA
Commissioners concluded that Agdeppa’s use of deadly
force was unreasonable because:
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
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].
(emphasis added).
The record also contains physical evidence that conflicts
with Agdeppa’s statements and declaration regarding the
risk Dorsey presented to the officers. As explained,
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.” The order denying summary judgment
observed that post-incident photographs showed an
“unscathed” Rodriguez and that her medical records
reflected only swelling, abrasions, and a pulled muscle—

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SMITH V. A GDEPPA 37
minor injuries very different from the type one would expect
if Dorsey had been pummeling Rodriguez such that “the next
punch would likely kill her,” as Agdeppa had described. The
district court rejected Agdeppa’s arguments that bruising
and additional injuries were not visible in the photos because
they constituted impermissible attacks on “the weight of the
evidence, which [was] not for the [c]ourt to consider on
summary judgment.” The majority, by contrast, weighs the
photos against other evidence and decides that the photos are
unpersuasive.
The autopsy report’s description of the bullet trajectories
also undermines Agdeppa’s account that Dorsey was
standing over Rodriguez as she lay on the floor, that he was
straddling and punching her, and that Agdeppa feared the
next blow might kill his partner. This report states that
several bullets traveled through Dorsey’s body from right to
left in a downward direction, and that one of the bullets
traveled through Dorsey’s stomach from left to right in an
upward direction. The bullet trajectories cannot be squared
with Agdeppa’s testimony that, “Dorsey remained in the
same position . . . as each shot was fired,” and that
immediately after the final shot, “Dorsey fell backward and
off Rodriguez and did not move.”5
The majority improperly weighs the conflicting evidence
(e.g., finding that the officers’ injuries were not
“insubstantial”); assesses the sufficiency of the evidence
5 My colleagues mistakenly argue that the district court “discounted this
argument earlier in its decision.” In fact, the district court observed only
that it could not make a finding “as to how Dorsey was positioned
relative to each gunshot.” 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.

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38 SMITH V. A GDEPPA
(e.g., characterizing the bullet trajectory evidence as
“speculative”); and makes credibility determinations (e.g.,
concluding that security guards’ statements “corroborate the
officers’ descriptions” even though it is not clear the guards
were present). Finally, it must be noted that the majority
relies on Hopson v. Alexander for the proposition that “we
may consider facts offered by the defendant that are
‘uncontradicted by any evidence in the record.’” 71 F.4th
692, 697 (9th Cir. 2023) (quoting Wilkinson v. Torres, 610
F.3d 546, 551 (9th Cir. 2010)). By invoking Hopson, the
majority forgets that binding en banc authority requires that
we take special care in fatality shooting cases 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 915). The quote from Hopson is inapt because
that case did not involve a fatality.6 We are bound by our en
banc decision in Gonzalez.
Agdeppa will no doubt prevail if a fact finder is
ultimately persuaded by his description of the way the
struggle in the locker room unfolded. But on interlocutory
appeal, we are not permitted to review “whether or not the
evidence in the pretrial record was sufficient to show a
genuine issue of fact for trial.” Est. of Anderson, 985 F.3d
at 732; see Peck, 51 F.4th at 876 (declining to review a
district court’s determination “that there were genuine
disputes of fact about whether [the suspect] posed an
immediate threat”). We should affirm the district court’s
order denying qualified immunity.
6 Wilkinson, on which Hopson relied, did involve a fatality, but it pre-
dates Gonzalez.

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SMITH V. A GDEPPA 39
II.
Under similar circumstances, we have reversed orders
granting qualified immunity. 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 Newmaker
shooting 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 both “drive” stun and “dart” modes.
Id. at 1111–12. The officer who shot and killed Newmaker
alleged that he had 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 defendant 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 1114–15, 1116. 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

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40 SMITH V. A GDEPPA
officer’s statement, it appeared that Newmaker was shot
after he fell to the ground. Id. at 1115. We concluded that
summary judgment was inappropriate because it was
disputed “when, why, and how [the officer] shot
Newmaker.” Id. at 1117.
The majority seems to reason that because Dorsey was
larger than the officers, was resisting arrest, and presented
some risk to officer safety, Agdeppa is entitled to qualified
immunity. This overlooks that all resisting suspects pose
some risk to officer safety, and yet our precedent provides
that officers may use deadly force only if they have probable
cause to believe a suspect poses an imminent risk of death or
serious physical injury to the officer or others. See, e.g., id.
at 1116. My colleagues decide that Dorsey’s indisputably
larger size and the actions he took to resist render the
disputed facts not “dispositive.” But qualified immunity
depends on what happened in the moments before Agdeppa
shot Dorsey—and whether a reasonable officer would have
believed that Dorsey posed an imminent threat to the
officers. See Simmons, 47 F.4th at 932 (defining “material
fact”).
Gonzalez is also instructive. There, physical evidence
conflicted with the officers’ description of events preceding
a police-officer fatality shooting. 747 F.3d at 791. The only
testimony describing the actions leading up to Gonzalez’s
death came from the officers who stopped Gonzalez for a
traffic violation. Id. at 792. They recalled that Gonzalez
refused to exit his van or turn off its engine and that the
officers, one standing on each side of the vehicle, reached in
through the van’s driver-side 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 in through the van’s

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SMITH V. A GDEPPA 41
windows. Id. The officers recounted that Gonzalez
managed to shift the van into “drive” and that he “stomped”
on the accelerator while one of the officers was still leaning
into the van. Id. at 792–93 (alteration accepted). That
officer 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 other
evidence in 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 the van’s passenger’s side
window and remained in the accelerating van. Id. at 794.
But the defendants also said that the van traveled just fifty
feet in five to ten seconds. 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 . . . .”)).
Quite unlike the majority’s cramped view that “existing
precedent does not clearly establish in every context

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42 SMITH V. A GDEPPA
when . . . a [deadly force] warning is ‘practicable,’” our
en banc court in Gonzalez reversed the district court’s order
granting summary judgment in favor of the officers because
the evidence would have allowed jurors to decide that a
deadly force warning had been practicable.
III.
Application of our rule requiring a deadly force warning
is particularly straightforward in this case because Officer
Agdeppa never claimed that it was not practicable to give a
deadly force warning. 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.” That assertion was flatly contradicted by
Agdeppa’s own pretrial statements, in which he consistently
said that he only 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.
When asked at his deposition if he warned Dorsey before
using deadly force, Agdeppa said, “I know I said
something. . . . I yelled something.” And in his sworn
declaration submitted in support of his summary judgment
motion and in the statement of undisputed material facts
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.” The majority stops short of
deciding that no such warning can be heard on the audio
recording. It instead decides that the audio is “chaotic.” But
if we view the facts in the light most favorable to plaintiff,
no warning was given. And we are not free to disregard
Agdeppa’s sworn account: whatever happened in the locker
room after the body-cams were knocked off, Agdeppa has
been consistent in recounting that he yelled “stop” several

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SMITH V. A GDEPPA 43
times before using his taser, and that he yelled “stop” before
using his gun. 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)(A).
Setting aside for the moment that no warning can be
heard on the audio before the shooting starts, 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. This is critical because the officers had repeatedly
warned Dorsey that they would tase him if he did not stop
resisting—and followed up by tasing Dorsey at least five
times. Another command to “stop” would have done
nothing to warn Dorsey that Agdeppa was preparing to ramp
up to deadly force. See, e.g., 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.”).7 On this record, a reasonable
jury could decide that it was practicable for Agdeppa to give
Dorsey a deadly force warning, and that he did not provide
one.
The majority argues that plaintiff failed to identify any
precedent establishing that Agdeppa’s failure to give a
deadly force warning was “obviously unlawful in the
circumstances Agdeppa faced,” because Agdeppa posed a
7 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.

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44 SMITH V. A GDEPPA
risk of danger to the officers. This is wrong for two reasons:
(1) it repeats the error of assuming that the officers faced an
imminent risk of serious injury based on conflicting
evidence; and (2) it conflates 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 a
suspect. They recounted that Gonzalez accelerated the van
he was driving 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, after hearing the conflicting evidence
and deciding what happened in the locker room, a jury could
find that Agdeppa had an opportunity to give Dorsey a
deadly force warning, and failed to do so. Agdeppa provided
several warnings before using intermediate force. Accepting
Agdeppa’s uncontested statements on this point, Agdeppa
did not warn Dorsey that he was escalating to the use of his
firearm.8
IV.
We are not permitted to accept Agdeppa’s
characterization of the struggle in the locker room because
physical evidence and witness statements conflict with it.
8 The majority also argues that our precedent did not “clearly establish”
“what form the warning must take, or how specific it must be.” We have
never required that level of specificity as a condition of applying this
precedent. Nor is the issue implicated here, where a jury could find that
Agdeppa gave no deadly force warning at all.

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SMITH V. A GDEPPA 45
See Peck, 51 F.4th at 875–76; Newmaker, 842 F.3d at 1116;
Gonzalez, 747 F.3d at 791. The district court correctly
recognized that a reasonable jury could conclude that
Agdeppa did not provide a deadly force warning, and that it
was practicable to do so. For these reasons, we should
affirm the district court’s order denying qualified immunity.
Accordingly, I respectfully dissent.

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