A federal appeals court has denied qualified immunity to a San Jose police officer who shot an activist within the groin with a bullet during downtown George Floyd protests 4 years ago, allowing a trial on charges of excessive force to proceed.
The Ninth Circuit Court of Appeals wrote in an opinion released Wednesday that a jury needs to be allowed to determine whether Derrick Sanderlin's First and Fourth Amendment rights were violated when Officer Michael Panighetti hit him with a 40mm foam baton on May 29, 2020, as he stood together with his hands raised between a police line and protesters near City Hall while holding an indication.
Last yr, the town of San Jose appealed a district court's denial of Panighetti's immunity, arguing that the shooting was not retaliatory, was not intended to stifle Sanderlin's free speech, and was not an excessive use of force. A 3-judge panel of the ninth District Court affirmed the lower court's decision.
“It was an unreasonable delay and I'm glad we're back,” said plaintiff's attorney Sarah Marinho. “My clients obviously want justice for the harm they suffered, but they also collectively want to ensure that something like this never happens to the community again. We hope the City of San Jose gets the message.”
The San Jose City Attorney's Office declined to comment on the decision, citing the reference to ongoing legal proceedings.
In a related memorandum, the panel reversed a district court decision and located that Captain Jason Dwyer, the operations commander on the primary day of the protests, was entitled to qualified immunity and needs to be barred from the lawsuit. Qualified immunity is a legal protection that protects government employees from lawsuits for work-related actions absent clear violations of constitutional or statutory rights.
The court ruled that Dwyer's authorization of police to make use of rubber and foam bullets and tear gas for crowd control – an authorization the town has since limited within the wake of the protests – didn’t violate any clearly established legal text, and due to this fact he’s exempt from qualified immunity.
In the memorandum, the court also affirmed the denial of immunity to a few officers – Lee Tassio, Jonathan Marshall and Juan Avila – in reference to claims made by Vera Clanton, one other defendant in the identical lawsuit. Clanton was documenting the protests as a legal observer when, in keeping with the plaintiffs, she was grabbed, thrown to the bottom and handcuffed.
In their decision against Panighetti, Justices Richard Paez, Jacqueline Nguyen and Michelle Friedland ruled that the query of whether the officer retaliated against Sanderlin's free speech rights should be decided by a jury. They also rejected the town's argument that Panighetti was not attempting to restrain or arrest Sanderlin when he fired the froth bullet but was attempting to get him to depart.
“The method of force used by Panighetti is, by its nature, intended to incapacitate the victim, making it difficult for him to walk away freely. A reasonable trier of fact, examining this evidence, might conclude that by firing a 40mm projectile at Sanderlin's groin, Panighetti objectively expressed an intent to restrain Sanderlin,” wrote Nguyen, who wrote the panel's opinion.
In his opinion, Nguyen found that the panel viewed the facts in a lightweight most favorable to the plaintiff, which is required on the summary judgment stage when a case is being examined for its ability to face trial.
As a results of Wednesday's ruling, the excessive-force claims of 5 other co-plaintiffs, which had been given the green light for a trial in March 2023 – but were postponed pending appeal – will even be heard further. These plaintiffs all claimed within the lawsuit that they were injured by rubber bullets, tear gas or mistreatment by law enforcement officials during peaceful protests.
Another lawsuit involving multiple plaintiffs from people injured throughout the protest, including a bystander who lost his eye to a police projectile, was settled by the town last yr for $3.3 million. Marinho said she desired to move her clients' lawsuit toward a resolution quickly.
“I have high hopes that it will not take another year,” she said. “Today's decision takes us further in this regard.”
Originally published:
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