Police were called to the apartment complex after a report of a drug dealer with a shotgun. When the officers arrived, they found Bernie Villegas -- the victim of the police shooting -- near a wall. Mr. Villegas was armed with a shotgun (which turned out to be a BB gun). Officer testimony diverged as to whether Mr. Villegas had the gun in his hands when they arrived or whether he picked the gun up later, but all of the officers were consistent that the gun was never pointed at the officers and that no warning was issued before one of the officers fired five shots at Bernie Villegas and killed him.
The officers were yelling commands at Mr. Villegas to "drop the gun" and put his "hands up," and the Court reasoned that if Mr. Villegas moved his arms when the gun was in his hands he could have been trying to comply with the officers' commands.
In C.V. v. City Anaheim, the Ninth Circuit ruled that: "A reasonable jury could draw the following factual conclusions: (1) the officers, responding to a call about a suspected drug dealer armed with a shotgun and loitering in the visitor parking area of an apartment complex, came upon Villegas already holding a long gun; (2) Villegas was ordered to put his hands up, and as he was complying, the officers ordered him to drop his gun; (3) without providing a warning or sufficient time to comply, or observing Villegas pointing the long gun toward the officers or making any move toward the trigger, Bennallack resorted to deadly force. Viewing the facts in this light, deadly force was not objectively reasonable."
The Court ruled that even though force under these circumstances was not objectively reasonable, that because the shooting officer may not have been adequately aware of the unreasonable nature of his actions back in 2012, the officer could be shielded from liability under Section 1983's problematic "qualified immunity" doctrine. However, the victim and his children could still find justice in a jury trial under their state law negligence claim. (Plaintiffs in police shooting cases often file state law negligence claims along with federal Section 1983 claims because each theory of liability has slightly different features and permutations and negligence does not have a "qualified immunity" problem like Section 1983).
Thanks to this and similar Ninth Circuit opinions, in the future, officers will be aware that it is unconstitutional to shoot and kill someone who may be complying with their commands to drop a gun, without giving a warning first, and when the victim is not directly pointing a gun at an officer or anyone else.