9th Circuit deals blow to qualified immunity, revives lawsuit against LAPD officer
A federal appeals court has reversed a ruling that shielded a Los Angeles police officer from liability in a fatal shooting, a decision that experts say could have broad implications for future cases in which law enforcement officials attempt to claim protection from civil lawsuits under the doctrine known as qualified immunity.
The ruling Monday by the 9th Circuit Court of Appeals was the latest twist in a lawsuit against LAPD officer Toni McBride over an on-duty shooting that occurred in April 2020. McBride, who was granted medical retirement from the police department late last year, killed Daniel Hernandez after he was in a car accident in South L.A.
The shooting occurred as Hernandez, 38, walked toward McBride and her police partner while holding a box cutter, ignoring commands to drop the blade. Video footage showed McBride fire three two-bullet volleys over six seconds. The final two shots were fired while Hernandez was rolling on the ground, which attorneys for the Hernandez family argued in a lawsuit was a violation of his 4th Amendment rights.
Read more: Reversal clears LAPD officer faulted for firing two extra bullets in fatal 2020 shooting
The shooting was ultimately found to be "in policy" under the police department's standards.
Last March, a three-judge panel from the 9th Circuit ruled that even though a jury could have reasonably found McBride used excessive force, she could not be sued in federal court due to qualified immunity, a controversial legal principle that protects officers from liability over some on-duty actions.
The Hernandez family challenged the decision, leading to the reversal Monday on a 6-5 vote by the larger en banc panel of the appellate court.
The judges cited a 2017 case in Orange County as precedent, writing that 'continuing to shoot a suspect who appears to be incapacitated and no longer poses an immediate threat violates the Fourth Amendment.'
The case will now go to trial in U.S. District Court in Los Angeles.
Narine Mkrtchyan, a lawyer for Hernandez's 18-year-old daughter, Melanie Hernandez, said the decision meant "justice has been served."
"Not just for this family but also for the future of shooting cases,' Mkrtchyan said. 'Officers cannot keep shooting when someone is down on the ground, period.'
McBride's father, Jamie McBride, is one of nine directors of the Los Angeles Police Protective League, the union that represents rank-and-file LAPD officers. He said Monday afternoon that his daughter did not have a statement on the latest development.
'In the end, when it goes to the Supreme Court or state court, I think that common sense will prevail and I think they'll agree that she acted in self-defense and she was totally justified in the force that she used," the elder McBride said. "She made the community safer by taking care of the threat that was coming at her.
A spokesperson for the LAPD did not immediately return a call seeking comment Tuesday afternoon.
While the shooting case has slowly made its way through the courts, a separate case centered on McBride's social media activity has also generated controversy. With more than 100,000 followers on Instagram, McBride built an audience by sharing pro-gun videos and content and highlighting her position and experience as an LAPD officer.
McBride alleged in a civil lawsuit that her free speech rights were violated and she was subjected to gender discrimination when she was retaliated against for her social media postings.
Read more: LAPD officer who moonlights as gun influencer loses lawsuit over social media accounts
McBride's online success made her into a 'gun influencer' who earned money for sponsored social media posts that showed her shooting firearms at training ranges and competitions, Aneta Freeman, an assistant L.A. city attorney, alleged last year during the civil trial over her online activity. McBride received free items, Freeman said, including a ballistic vest, ammo and hair extensions.
She sought $100,000 damages, claiming that she suffered 'emotional distress' as a result of the workplace dispute over her social media.
McBride dropped the gender discrimination claims, and in April 2024, she lost her free speech lawsuit when a jury ruled that she had not been treated unfairly.
McBride's attorney, Greg Smith, said Tuesday that while she lost on the free speech claim, she preserved her right to refile a retaliation action alleging that she was discriminated against because of her gender. Whether she will refile remains to be seen.
'That's completely up in the air right now; there's no lawsuit right now,' Smith said.
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This story originally appeared in Los Angeles Times.
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