Sanderlin v. Dwyer

Incident Summary & Facts

On May 29, 2020, a protest over George Floyd’s death began at San Jose City Hall. It moved onto Highway 101, and some participants smashed vehicles with rocks and threw objects at officers. San Jose Police Officer Michael Panighetti carried a 40mm launcher firing foam baton rounds. Department policy then allowed these rounds as defensive weapons against “specific individuals who posed a threat of serious injury to the officers or others.” Dispersal orders were issued at about 4:30 p.m. At about 6:20 p.m., near Santa Clara and 5th Streets, Panighetti said he was watching two people with gallon paint cans hiding behind a dumpster. He believed they were about to throw the cans at officers. He said Derrick Sanderlin, who was holding a sign over his head, deliberately placed himself in front of officers to shield them.

Panighetti’s body-camera video shows Sanderlin on the sidewalk holding a sign, with a dumpster behind him. It does not clearly show the people with paint cans, though a chaotic scene is unfolding. Panighetti yells, “I’m going to hit you, dude. You better move!” Sanderlin does not move immediately, and “[a]fter only a few seconds,” Panighetti fires a foam baton round that strikes him in the groin. Sanderlin says he was peacefully holding his hands over his head, asking officers to stop shooting protesters. He says he heard no warning, threatened no one, and shielded no one. He fell, unable to move, and no officer gave aid. His injuries required emergency surgery. Department training materials say the groin “should not be intentionally targeted.”

Procedural posture: Interlocutory appeal from the district court’s denial of summary judgment on qualified immunity on Sanderlin’s First Amendment retaliation and Fourth Amendment excessive-force claims.

Core Legal Issue

(1) Viewing the facts in Sanderlin’s favor, did Panighetti retaliate against protected speech? (2) Was firing a 40mm foam round at Sanderlin a Fourth Amendment seizure, and was it unreasonable? (3) Was the right clearly established on May 29, 2020, even though Torres v. Madrid (2021) later narrowed the definition of a seizure?

The Holding

Affirmed. Genuine disputes of material fact exist on both the First and Fourth Amendment claims. Under the law in effect on May 29, 2020, Nelson v. City of Davis clearly established that the shooting was a seizure, and Nelson and Deorle together clearly established that the force was unreasonable. Panighetti was denied qualified immunity.

The Court’s Analysis:

• First Amendment: Whether Sanderlin was peacefully protesting or obstructing officers depends on whose account the factfinder believes. If there was no legitimate justification for the shot, a jury could infer retaliatory animus. Retaliating against protected speech violates clearly established law.
• Seizure under Torres: A seizure requires force applied with an “objectively manifest[ed]” intent to restrain. The officer’s subjective intent to disperse “is irrelevant.” The 40mm launcher is designed to “Disorient [and] Incapacitate,” and incapacitating a person meaningfully interferes with freedom of movement. A brief seizure is still a seizure.
• Reasonableness under Graham: The launcher can cause “serious injury or death,” and Sanderlin’s injuries were severe. That force requires “a commensurately serious state interest.” On Sanderlin’s account, he committed no crime, posed no threat, and was not fleeing. The court acknowledged officers’ “split-second judgments” in “rapidly evolving” circumstances and their legitimate interest in crowd control. But the claimed obstruction rests on disputed facts, and a jury could also find that Panighetti “failed to consider other less intrusive tactics.”
• Clearly established law: Nelson (pepperballs fired at non-threatening students who had committed at most minor misdemeanors) and Deorle gave fair notice. Adopting the Fourth Circuit’s reasoning in West v. Murphy, the court held that legal developments after the incident cannot be used in the clearly-established inquiry, whether they favor the plaintiff or the officer: “the need for prior notice is a two-way street.”