The 9th Circuit Court of Appeals has announced it will reconsider an opinion published earlier this year involving a fatal LAPD shooting, which could have expanded qualified immunity protections that shield police officers and their employers from civil liability.
"It is ordered that this case be reheard en banc," Chief Judge Mary H. Murguia said in a brief order published Monday, meaning a panel of 11 judges of the 9th Circuit will hear the case.
"I cannot really assume what happened behind the scenes," said civil rights attorney Narine Mkrtchyan, who filed the lawsuit now at the center of the appeals case.
"But we had very strong arguments in our favor, and I think the judges wanted to reconsider,” Mkrtchyan told the I-Team this week.
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She brought one of two federal lawsuits against the city of Los Angeles on behalf of members of the family of Daniel Hernandez, who was killed in confrontation with police in April, 2020.
The initial decision from a three-judge 9th Circuit panel found that LAPD officer Toni McBride should be protected from civil rights claims in federal court under the legal principle of qualified immunity, which prevents lawsuits against government workers doing official business, unless there is a clear violation of constitutional rights.
McBride shot Hernandez after he crashed a pickup truck into several cars near 32nd Street and San Pedro Street, then advanced toward McBride, her partner and members of the public while holding a box cutter.
Hernandez was on the ground after McBride fired four shots, and Mkrtchyan argued McBride's next shots, one of which was fatal, were excessive.
"Although a reasonable jury could find that the force employed by McBride was excessive, she is nonetheless entitled to qualified immunity," the 9th Circuit opinion said.
"By this ruling, the 9th Circuit kind of, really, sent a very bad, bad precedent for the entire federal court system," Mkrtchyan said, as she believed previous case law required each of the officer's shots to be considered individually, rather than awarding blanket immunity because the first volleys were deemed reasonable.
"This officer kept shooting, kept shooting, and when he was already laying on the ground, she continued shooting," she said.
"The fifth and sixth shots clearly were excessive."
The Board of Police Commissioners found McBride's fifth and sixth violated LAPD policy; the California Attorney General's Office concluded they were nonetheless justified under California law as self defense.
The LA City Attorney's Office, which defended Officer McBride and was initially successful in getting the lawsuits' civil rights claims dismissed, did not respond to requests for comment on the 9th Circuit's decision to re-hear the case.
The Los Angeles Police Protective League, the union that represents most LAPD officers, did not respond to a request for comment on the McBride case or the wider implications of the 9th Circuit decision on police liability.
The 9th Circuit's initial opinion allowed the Hernandez family to pursue related claims against McBride and the city of LA in state court even though the federal causes of action were barred.
The en banc panel is scheduled to hear the case in September.
