(image
via
Getty)
When
it
comes
to
the
Supreme
Court-created
(and
diluted) qualified
immunity
doctrine,
the
Ninth
Circuit
leads
the
league
in
rejections.
The
Fifth
Circuit is
its
polar
opposite,
more
willing
to
forgive
cops
than
uphold
civil
rights.
This
case
would
have
been
dead
on
arrival
in
the
Fifth.
But
since
it
landed
in
the
Ninth,
the
victim
of
excessive
force,
protester
Derrick
Sanderlin,
will
see
his
lawsuit
move
forward.
Like millions
of
other
people,
California
resident
Derrick
Sanderlin
participated
in
an
anti-police
violence
protest
prompted
by
the
murder
of
Minnesota
resident
George
Floyd
by
Minneapolis
police officer
Derek
Chauvin.
And,
like
many
peaceful
protesters
demonstrating
against
police
violence,
his
acts
of
protest
were greeted
with
police
violence.
While
participating
in
what
even
San
Jose
police
officers
referred
to
as
a
“peaceful”
protest
(although
it
did
turn
more
damaging
and
violent
later),
Sanderlin
had
the
misfortune
of
running
into
San
Jose
PD
officer
Michael
Panighetti.
This
interaction
was
captured
on
the
officer’s
body
camera,
which
provides
the
narrative
recounted
by
the
Ninth
Circuit
Appeals
Court
in
its decision [PDF].
The
first
part
of
the
narrative,
though,
was
provided
by
the
officer
during
his
testimony,
something
that
details
alleged
actions
that
were not captured
by
his
camera:
Panighetti
testified
in
his
deposition
that
as
he
approached
the
intersection
of
Santa
Clara
Street
and
5th
Street,
he
had
been
monitoring
an
individual
wearing
a
San
Francisco
49ers
jersey
who
had
been
throwing
objects
at
police
officers
and
hiding
behind
corners.
When
they
reached
the
intersection,
Panighetti
observed
that
individual
in
the
49ers
jersey,
along
with
another
person,
hiding
behind
the
corner
of
a
building.
Panighetti
claimed
that
he
was
able
to
continue
to
visually
monitor
the
two
subjects
because
the
building
was
glass
all
around
the
first
floor.
Panighetti
then
explained
that
he
saw
those
two
subjects
holding
gallon
paint
cans,
and
he
believed
they
were
poised
to
throw
the
paint
cans
at
police
officers.
At
one
point,
the
subjects
pushed
a
dumpster
into
the
intersection
and
attempted
to
hide
behind
it.
The
plaintiff
in
this
lawsuit
was
neither
of
the
people
the
officer
claimed
he
observed
to
be
engaged
in
some
anti-police
violence
of
their
own.
It
didn’t
matter.
Sanderlin
became
the
focus
of
violent
reprisal
simply
because
he
temporarily
stood
in
front
of
the
officer.
That
encounter was captured
on
camera.
At
that
point,
a
man
later
identified
as
Sanderlin
moved into
the
sidewalk
while
carrying
a
sign
over
his
head.
Panighetti
claimed
that
Sanderlin
purposefully
placed
himself
in
front
of
officers
to
block
the
two
subjects
holding
paint
cans
and
hiding
behind
the
dumpster.
In
video
footage
captured
by
Panighetti’s
body-worn
camera,
Sanderlin
is
seen
standing
on
the
sidewalk
holding
a
sign,
and
a
dumpster
is
behind
him.
The
video
does
not
clearly
show
the
two
subjects
allegedly
holding
paint
cans
that
Panighetti
describes,
though
there
is
clearly
a
chaotic
scene
unfolding
around
this
encounter.
In
the
video,
Panighetti
can
be
heard
yelling
to
Sanderlin,
“I’m
going
to
hit
you,
dude.
You
better
move!”
Sanderlin
fails
to
immediately
comply,
continuing
to
stand
in
the
sidewalk
holding
his
sign
over
his
head.
After
only
a
few
seconds,
Panighetti
fires
a
40mm
foam
baton
at
Sanderlin,
striking
him
in
the
groin
area.
Sanderlin
recoils
from
the
impact
and
appears
to
take
a
few
steps,
shifting
his
weight
between
his
feet
in
pain.
He
then
limps
out
of
the
middle
of
the
sidewalk,
at
which
point
he
is
no
longer
visible
in
the
video
footage.
Just
because
it
was
a
“less
lethal”
munition
doesn’t
mean
the
round
fired
by
the
officer
didn’t
do
serious
damage
to
Sanderlin.
The
full
power
blow
from
the
40mm
baton
round
led
to
severe
injuries
that
required
emergency
surgery.
The
recording
shows
Panighetti
ordering
Sanderlin
to
“move,”
coupled
with
an
informal
warning
that
the
officer
was
planning
“to
hit
you,
dude”
if
Sanderlin
refused
to
comply.
As
the
narrative
notes,
Sanderlin
wasn’t
really
given
much
chance
to
consider
his
options
(i.e.,
whether
or
not
the
officer
intended
to
strike
him/whether
or
not
he
was
obliged
to
comply
with
this
vague
order)
much
less
comply
before
being
shot
by
the
officer.
Sanderlin
testified
he
never
heard
an
order
to
move.
He
also
testified
he
had
done
nothing
but
peacefully
protest
and
that
his
standing
in
front
of
the
officer
was
nothing
more
than
First
Amendment
activity,
rather
than
the
supposed
covering
up
of
criminal
activity
by
other
protesters
behind
him.
And,
according
to
Sanderlin’s
assertions,
no
officer
offered
to
render
aid
as
he
lay
in
the
street
after
being
shot
by
Panighetti.
Instead,
it
was
his
wife
who
discovered
him
some
time
later
and
took
him
to
the
hospital
to
be
treated.
The
lower
court
said
qualified
immunity
did
not
cover
the
officer’s
actions.
And,
as
can
be
determined
from
the
narrative
above,
certain
facts
are
still
in
conflict.
The
lower
court
said
the
officer’s
actions
were
a
clear
violation
of
rights.
And
with
everything
else
still
in
dispute,
the
lawsuit
needed
to
be
placed
in
front
of
a
jury.
The
lower
court’s
decision
is
affirmed
by
the
Ninth
Circuit.
This
needs
to
go
to
trial.
Qualified
immunity
simply
does
not
cover
this
apparent
violation
of
Sanderlin’s
right
to
be
free
from
excessive
force
deployments.
Then
there’s
where
Officer
Panighetti
chose
to
shoot
Sanderlin
—
a
move
that
directly
contradicted
his
SJPD
training
and,
at
minimum,
was
a
negligent
use
of
force:
According
to
SJPD
training
materials,
“Less
Lethal
Impact
munitions”
like
the
40mm
foam
baton
Panighetti
fired
“are
used
to:
Disorient
[and]
Incapacitate
.
.
.
Injury
should
be
expected.” The
training
materials
further
reveal
that
projectiles
that
are
fired
“to
‘Center
Mass’
provide
for
the
highest
probability
of
causing
immediate
incapacitation,
but
also
have
the
potential
to
cause
serious
injury
or
death.” Panighetti
himself
explained
that
he
was
trained
to
use
the
40mm
launcher
“to
incapacitate
a
suspect”
posing
a
safety
risk. The
record
also
shows
that
the
groin,
where
Sanderlin
was
shot,
is
considered
an
area
of
particularly
high
risk
of
injury,
and
the
training
materials
specifically
indicate
that
“[t]he
groin
area
should
not
be
intentionally
targeted.”
Pretty
damning,
especially
when
considered
in
the
context
of
the
officer’s
assertions
about
his
own
training
and
expertise
in
hopes
of
explaining
why
it
was
so
necessary
to
shoot
one
person
in
the
crotch
just
so
he
could
move
past
the
peaceful
protester
to
the
less
peaceful
protesters
allegedly
standing
behind
him.
The
Ninth
says
the
question
of
whether
this
deployment
of
force
was
“reasonable”
is
something
a
jury
should
decide.
From
what
it
has
seen,
it
appears
that
it
isn’t.
And
that’s
the
legal
standard
—
one
often
ignored
by
federal
courts
at
multiple
levels:
if
there
are
any
questions
that
can’t
be
immediately
answered
by
case
law,
it’s
up
to
a
jury
of
the
defendant’s
peers
to
answer
those
questions.
The
Ninth
Circuit
is
simply
doing
what
other
courts
often
won’t:
allow
juries
to
determine
the
winners
and
losers
of
civil
rights
cases,
rather
than
just
letting
cops
who
don’t
feel
like
playing
walk
away
from
the
damage
they’ve
caused
to
others.
Panighetti
will
now
need
to
convince
a
jury
his
actions
were
justified.
Given
the
circumstances,
it’s
seems
unlikely
that
will
happen.
Ninth
Circuit:
No
Immunity
For
Officer
Who
Shot
Peaceful
Protester
In
The
Groin
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