“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Ninth Circuit Trump judge Daniel Bress cast the deciding vote in a divided panel decision immunizing from lawsuit a police officer who shot and killed a twenty year-old man in Surprise, AZ. The victim’s family had sued after police video of the shooting became public. The July 2020 case dismissing their lawsuit was Adame v. Gruver.

Derek Adame was in a parked car, asleep and unarmed, when his encounter with Officer Joseph Gruver began. Seeing the car, Gruver had run the license plate and determined that the car had been stolen. He flared his police lights, then walked up to the car, took out his gun, opened the door on the passenger side, and ordered Adame to keep his hands up. While Gruver awaited backup, he continued to keep his gun drawn and repeatedly ordered Adame not to move.

When the backup officer arrived about two minutes later, Adame lowered his right hand and started the car ignition. Gruver then leaned into the car, yelling at Adame not to move. As the car began slowly to move, Gruver shot Adame in the head, killing him instantly, then fell safely out of the car. Adame’s family sued Gruver for using unconstitutionally excessive force against him. A district court ruled that the officer did not have qualified immunity.

With Judge Bress being the deciding vote, the Ninth Circuit panel overruled that decision and gave Gruver qualified immunity from suit. The majority described the fact situation as “unique” and distinguished it from prior cases where immunity had been denied because they didn’t involve an officer who was partially inside and partially outside a moving car. Therefore, according to Bress, even if shooting the unarmed driver under these circumstances was in fact unconstitutional, a police officer could not reasonably have known that with certainty. That made Gruver immune from suit, according to the majority.

Judge Mary Murphy Schroeder wrote a strong dissent. She explained that Ninth Circuit courts have “clearly established” deadly force is justified only by an imminent threat of serious harm. That was not the case here, since Adame was unarmed, the car had only just started to slowly move, and the door was open so Officer Gruver could step out and thereby avoid any risk to himself.

The majority wrote there actually was a threat of imminent harm because Gruver’s “compromised position” meant he was at risk of falling out and getting run over. However, the majority did not explain how that risk was reduced by shooting the driver in the head.