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By Brandon Pho. San José Spotlight.
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A legal shield protecting police officers from lawsuits over excessive use of force has taken a hit in San Jose.
The 9th U.S. Circuit Court of Appeals on Wednesday denied qualified immunity to Michael Panighetti, a San Jose Police Department officer who shot Black activist Derrick Sanderlin in the groin with a foam bullet while he was holding a sign in 2020.
The incident occurred during local protests over the killing of George Floyd by Minneapolis police. The ruling allows Sanderlin's excessive force lawsuit to move forward, despite efforts by city officials to prevent it from moving forward.
“We are happy that the case is moving forward. It has been a long process, over four years at this point, so all of my clients are eager to have their case finally heard by a jury,” attorney Sarah Marinho, who represents Sanderlin and six others in the lawsuit, told San José Spotlight.
Marinho said he hopes the case will move forward quickly in the courts of first instance.
“I am expecting the trial judge to give me the date of the next trial at any moment. That could happen within a month, there is no way of knowing exactly when,” Marinho said.
The appellate judges agreed with a lower court in denying immunity to Panighetti and three other officers sued for excessive use of force during the same protest in downtown San Jose. However, in a separate filing Wednesday, they ruled that the lower court erred in denying qualified immunity to police Capt. Jason Dwyer, who was in charge of the police response during the protest.
The judges argued that Dwyer did not violate anyone's clearly established rights, which is a standard for denying immunity.
The case is returning to trial court after a one-year delay. Six other co-plaintiffs also allege that police used excessive force against them while they were participating in the protest. They say police hit them with projectiles and crowd control devices. One plaintiff, Vera Clanton, says she was roughly abused and thrown to the ground while officers arrested her.
The incidents prompted pressure to ban police from using tear gas and projectiles during demonstrations, and calls for the release of footage capturing police use of force at protests.
City Attorney Nora Frimann declined to comment. SJPD officials also declined to comment on the ruling.
City officials have previously argued that Sanderlin's May 2020 shooting was not an excessive use of force or a retaliation or suppression of Sanderlin's First and Fourth Amendment rights.
Panighetti has argued that he was not trying to restrain Sanderlin, but rather to force him to leave the area. Panighetti also argued that Sanderlin was preventing officers from taking action against suspects and that is not a constitutionally protected activity.
But in deciding whether the case merited trial, the appeals judges said they had to look at the facts from a perspective that favored Sanderlin. They also rejected the idea that Panighetti was trying to force Sanderlin to leave.
“The method of force Panighetti used is, by its nature, intended to incapacitate his target, making it difficult for him to walk away freely,” Judge Jacqueline Nguyen wrote in the appeals court opinion. “A reasonable judge looking at this evidence could conclude that by firing a 40mm round into Sanderlin’s groin, Panighetti objectively manifested his intent to immobilize Sanderlin.”
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