NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOHN SYLVESTER PENNY, No. 22-55572
Plaintiff-Appellee, D.C. No. 2:20-cv-07211-DMG-MAA v.
SAMI AZMY; JONATHAN A. CONCETTI, MEMORANDUM*
Defendants-Appellants,
and
CITY OF LOS ANGELES; et al.,
Defendants.
JOHN SYLVESTER PENNY, No. 22-55579
SAMI AZMY; et al.,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants.
Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding
Argued and Submitted August 21, 2023 Pasadena, California
Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.
In this § 1983 excessive force case, Jonathan Concetti, a City of Los Angeles
police officer, appeals the denial of his motion for summary judgment based on
qualified immunity.1
“A district court’s decision denying summary judgment on the ground of
qualified immunity is reviewed de novo.” Hopkins v. Bonvicino, 573 F.3d 752,
762 (9th Cir. 2009). To conclude that qualified immunity is improper, we must
first “ask whether the facts, viewed in the light most favorable to the plaintiff,
demonstrate that the [officer] violated a constitutional right.” Peck v. Montoya, 51
F.4th 877, 887 (9th Cir. 2022). Second, we ask “whether that right was clearly
established at the time of the alleged constitutional violation.” Id. (internal
quotation marks and citation omitted). Where relevant, “[w]e do not credit a
1 John Penny represents that he will no longer pursue his secondary liability claim
against Sergeant Sami Azmy due to the stipulated dismissal of the relevant officer. We therefore remand with instructions to dismiss that claim with prejudice.
2 party’s version of events that the record, such as an unchallenged video recording
of the incident quite clearly contradicts.” Rice v. Morehouse, 989 F.3d 1112, 1120
(9th Cir. 2021) (internal quotation marks omitted) (citing Scott v. Cnty. of San
Bernadino, 903 F.3d 943, 952 (9th Cir. 2018)).
1. To evaluate a Fourth Amendment excessive force claim, we ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).
Graham identified three factors that indicate an action was objectively reasonable:
(1) the severity of the suspect’s alleged crime, (2) the presence or lack of an
immediate threat to officer or bystander safety, and (3) the suspect’s resistance to
or evasion of arrest. Id. at 396. “Other relevant factors include the availability of
less intrusive force, whether proper warnings were given, and whether it should
have been apparent to the officers that the subject of the force used was mentally
disturbed.” Vos v. City of Newport Beach, 892 F.3d 1024, 1033–34 (9th Cir.
2018). Additionally, “the ratio of officers to suspects present” can be considered.
Washington v. Lambert, 98 F.3d 1181, 1190 (9th Cir. 1996).
None of the Graham factors indicate that Concetti’s use of force was
reasonable. First, Penny did not commit any serious crime. The only potential
crime committed was resisting arrest, a “minor” offense. Mattos v. Agarano, 661
F.3d 433, 445–46 (9th Cir. 2011). Second, Penny did not pose an immediate threat
3 to Officer Concetti or any of the twelve other officers present. Although Penny
held onto a wooden board at the time of the shooting, he held it perpendicular to
his body, like a shield, and “did not brandish [it] at anyone.” Glenn v. Washington
Cnty., 673 F.3d 864, 873 (9th Cir. 2011). Officer Concetti had plenty of officer
cover as well as space to move away from Penny. Third, when Officer Concetti
shot him, Penny was not attempting to flee. See Tennessee v. Garner, 471 U.S. 1,
11–12 (1985). And although he disobeyed Officer Concetti’s repeated command
to “get back,” thereby arguably resisting arrest, Penny’s noncompliance did not
present an immediate threat. Penny’s noncompliance thus did not rise to a level of
behavior justifying the use of deadly force against him. Cf. O’Doan v. Sanford,
991 F.3d 1027, 1033, 1037 (9th Cir. 2021) (holding that the third Graham factor
weighs in favor of qualified immunity when a suspect is “combative” while
repeatedly resisting officer commands).
Finally, each of the “other relevant factors” weigh against Officer Concetti’s
use of deadly force. Vos, 892 F.3d at 1033. Officer Concetti relayed no warnings;
the officers had less intrusive means of force available such as a taser, a beanbag
shotgun, or a projectile launcher;2 and Penny was visibly emotionally disturbed
during the confrontation in a way that did not present an immediate threat. See
2 Officer Concetti in particular had non-lethal alternatives to the use of deadly
force—pepper spray and two types of batons.
4 Vos, 892 F.3d at 1033–34. There were thirteen officers on the scene when Concetti
shot Penny. Further, Officer Concetti in his mind determined that he would shoot
if Penny came a certain distance from him but did not warn Penny not to come that
close or he would be shot. Instead, Officer Concetti continued to walk towards
Penny, an emotionally disturbed individual, rather than backing off into the large
surrounding open space. Officer Concetti’s decision to shoot Penny was
objectively unreasonable and therefore excessive force, in violation of Penny’s
Fourth Amendment rights.
2. As to whether the law regarding the Fourth Amendment excessive force
claim was clearly established, “at the time of [Officer Concetti’s] conduct, the law
was sufficiently clear that every reasonable official would understand that what he
[did was] unlawful.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)
(citations and quotation marks omitted). The decision in Vos confirms that as of
2018, a reasonable police officer would have understood that the use of deadly
force against a possibly mentally ill suspect when there were numerous officers
present, multiple less intrusive options readily available, and no immediate threat
of serious physical injury—even where the suspect held an object that officers
could have perceived to be dangerous if used as a weapon—was excessive force
and so a Fourth Amendment violation. 892 F.3d at 1034–35.
In Vos, “[t]he officers knew that Vos had been simulating having a gun and that
5 he was agitated, appeared angry, and was potentially mentally unstable or under
the influence of drugs.” Id. at 1029.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOHN SYLVESTER PENNY, No. 22-55572
Plaintiff-Appellee, D.C. No. 2:20-cv-07211-DMG-MAA v.
SAMI AZMY; JONATHAN A. CONCETTI, MEMORANDUM*
Defendants-Appellants,
and
CITY OF LOS ANGELES; et al.,
Defendants.
JOHN SYLVESTER PENNY, No. 22-55579
SAMI AZMY; et al.,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants.
Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding
Argued and Submitted August 21, 2023 Pasadena, California
Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.
In this § 1983 excessive force case, Jonathan Concetti, a City of Los Angeles
police officer, appeals the denial of his motion for summary judgment based on
qualified immunity.1
“A district court’s decision denying summary judgment on the ground of
qualified immunity is reviewed de novo.” Hopkins v. Bonvicino, 573 F.3d 752,
762 (9th Cir. 2009). To conclude that qualified immunity is improper, we must
first “ask whether the facts, viewed in the light most favorable to the plaintiff,
demonstrate that the [officer] violated a constitutional right.” Peck v. Montoya, 51
F.4th 877, 887 (9th Cir. 2022). Second, we ask “whether that right was clearly
established at the time of the alleged constitutional violation.” Id. (internal
quotation marks and citation omitted). Where relevant, “[w]e do not credit a
1 John Penny represents that he will no longer pursue his secondary liability claim
against Sergeant Sami Azmy due to the stipulated dismissal of the relevant officer. We therefore remand with instructions to dismiss that claim with prejudice.
2 party’s version of events that the record, such as an unchallenged video recording
of the incident quite clearly contradicts.” Rice v. Morehouse, 989 F.3d 1112, 1120
(9th Cir. 2021) (internal quotation marks omitted) (citing Scott v. Cnty. of San
Bernadino, 903 F.3d 943, 952 (9th Cir. 2018)).
1. To evaluate a Fourth Amendment excessive force claim, we ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).
Graham identified three factors that indicate an action was objectively reasonable:
(1) the severity of the suspect’s alleged crime, (2) the presence or lack of an
immediate threat to officer or bystander safety, and (3) the suspect’s resistance to
or evasion of arrest. Id. at 396. “Other relevant factors include the availability of
less intrusive force, whether proper warnings were given, and whether it should
have been apparent to the officers that the subject of the force used was mentally
disturbed.” Vos v. City of Newport Beach, 892 F.3d 1024, 1033–34 (9th Cir.
2018). Additionally, “the ratio of officers to suspects present” can be considered.
Washington v. Lambert, 98 F.3d 1181, 1190 (9th Cir. 1996).
None of the Graham factors indicate that Concetti’s use of force was
reasonable. First, Penny did not commit any serious crime. The only potential
crime committed was resisting arrest, a “minor” offense. Mattos v. Agarano, 661
F.3d 433, 445–46 (9th Cir. 2011). Second, Penny did not pose an immediate threat
3 to Officer Concetti or any of the twelve other officers present. Although Penny
held onto a wooden board at the time of the shooting, he held it perpendicular to
his body, like a shield, and “did not brandish [it] at anyone.” Glenn v. Washington
Cnty., 673 F.3d 864, 873 (9th Cir. 2011). Officer Concetti had plenty of officer
cover as well as space to move away from Penny. Third, when Officer Concetti
shot him, Penny was not attempting to flee. See Tennessee v. Garner, 471 U.S. 1,
11–12 (1985). And although he disobeyed Officer Concetti’s repeated command
to “get back,” thereby arguably resisting arrest, Penny’s noncompliance did not
present an immediate threat. Penny’s noncompliance thus did not rise to a level of
behavior justifying the use of deadly force against him. Cf. O’Doan v. Sanford,
991 F.3d 1027, 1033, 1037 (9th Cir. 2021) (holding that the third Graham factor
weighs in favor of qualified immunity when a suspect is “combative” while
repeatedly resisting officer commands).
Finally, each of the “other relevant factors” weigh against Officer Concetti’s
use of deadly force. Vos, 892 F.3d at 1033. Officer Concetti relayed no warnings;
the officers had less intrusive means of force available such as a taser, a beanbag
shotgun, or a projectile launcher;2 and Penny was visibly emotionally disturbed
during the confrontation in a way that did not present an immediate threat. See
2 Officer Concetti in particular had non-lethal alternatives to the use of deadly
force—pepper spray and two types of batons.
4 Vos, 892 F.3d at 1033–34. There were thirteen officers on the scene when Concetti
shot Penny. Further, Officer Concetti in his mind determined that he would shoot
if Penny came a certain distance from him but did not warn Penny not to come that
close or he would be shot. Instead, Officer Concetti continued to walk towards
Penny, an emotionally disturbed individual, rather than backing off into the large
surrounding open space. Officer Concetti’s decision to shoot Penny was
objectively unreasonable and therefore excessive force, in violation of Penny’s
Fourth Amendment rights.
2. As to whether the law regarding the Fourth Amendment excessive force
claim was clearly established, “at the time of [Officer Concetti’s] conduct, the law
was sufficiently clear that every reasonable official would understand that what he
[did was] unlawful.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)
(citations and quotation marks omitted). The decision in Vos confirms that as of
2018, a reasonable police officer would have understood that the use of deadly
force against a possibly mentally ill suspect when there were numerous officers
present, multiple less intrusive options readily available, and no immediate threat
of serious physical injury—even where the suspect held an object that officers
could have perceived to be dangerous if used as a weapon—was excessive force
and so a Fourth Amendment violation. 892 F.3d at 1034–35.
In Vos, “[t]he officers knew that Vos had been simulating having a gun and that
5 he was agitated, appeared angry, and was potentially mentally unstable or under
the influence of drugs.” Id. at 1029. Officers at the scene believed that Vos was
holding a pair of scissors when he ran towards them. Id. Vos asked the police to
shoot him on multiple occasions and acted erratically during the encounter. Id. at
1028–29. Eight police officers were on the scene, armed with AR-15 rifles,
handguns, and at least one “40-millimeter less-lethal projectile launcher.” Id. at
1029. When Vos left the 7-Eleven, one police officer shot him using less-lethal
force, and two fatally shot him using lethal force. Id. at 1029–30. After the
incident, medical records confirmed that Vos had a diagnosis of schizophrenia. Id.
at 1030. We held in Vos that, although at that time the law was not clearly
established, “a reasonable jury could find that the force employed was greater than
is reasonable under the circumstances.” Id. at 1034, 1035–36 (internal quotation
marks and citations omitted).
Here, Penny exhibited consistently erratic behavior signaling mental illness,
including repeatedly speaking to the officers in incoherent non-sequiturs and
referencing his own death several times. Penny held various objects during the
encounter, including (at the time of the shooting) a wooden board, but did not use
or threaten to use any objects in a way that presented a risk of immediate harm to
the officers. Officer Concetti shot Penny with his pistol without issuing a warning
of deadly force. Several officers, including Officer Concetti himself, had access to
6 and adequate time to deploy less-intrusive means of force including a beanbag
shotgun, a 40-millimiter projectile launcher, or a taser; two did so, at the same time
Officer Concetti used lethal force. On these facts, Vos makes it “sufficiently clear”
that Officer Concetti’s actions were unlawful. Wesby, 583 U.S. at 63. If anything,
this presents a considerably more obvious violation of the Fourth Amendment than
in Vos. We therefore affirm the district court’s denial of summary judgment.
3. Several LAPD officers involved in the events leading to this case stipulated
to their dismissal from the appeal. Those officers ask this Court to vacate the
district court order “as it applies to [those] individual officers.” Because the
parties settled during the pendency of the appeal, the Appellants “forfeited the right
to appeal and therefore lost their equitable entitlement to vacatur.” NASD Disp.
Resol., Inc. v. Jud. Council of State of Cal., 488 F.3d 1065, 1069 (9th Cir. 2007).
Appellants’ request for vacatur is denied.
We therefore REMAND with instructions to dismiss Penny’s secondary
liability claim against Sergeant Azmy, and AFFIRM the district court’s denial of
summary judgment.