The Ninth Circuit upheld the denial of qualified immunity to Michael Panighetti, a San Jose police officer who is accused of using retaliatory, excessive force against a protestor in the aftermath of George Floyd’s murder, Courthouse News reports. Additional officers had been dispatched to the scene on May 29, 2020, when the crowd marched onto Highway 101, blocking lanes in both directions, and when some members of the crowd began engaging in violent behavior, including throwing rocks and objects at vehicles and officers from an overpass. Officers issued dispersal orders and Panighetti was in a squad cars following the protestors back to City Hall. Then he was ordered out of the vehicle, to stand behind a skirmish line that had began to form.
There, Panighetti saw a person in a San Francisco 49ers jersey with another person; they seemed furtive, so he watched them. They held gallon paint cans and he believed that they were going to heave them at officers. But at that point, plaintiff Derrick Sanderlin moved into the sidewalk carrying a sign over his head. Panighetti argues that Sanderlin was deliberately blocking his view of the pair with the paint cans. Sanderlin contends that he had attended the protest with his wife, co-plaintiff Cayla Sanderlin and that he did not hear any warning to shoot; he was merely standing with his hands over his head, asking officers to stop shooting other protestors, he said. Panighetti says he yelled a warning and shot Sanderlin in the groin with a 40mm foam baton round; he fell to the ground immobilized and suffered injuries that required emergency surgery. “There are genuine disputes of fact as to whether this use of force was in retaliation for the protestor’s First Amendment-guaranteed speech,” the court found as it upheld the denial of Panighetti’s qualified immunity, which would typically protect him from being sued for actions he took as a law-enforcement officer.