Every police shooting case I have handled comes down to seconds. The officers will tell the jury that it all happened fast, that there was no time to think, that the threat was everywhere at once. Sometimes that is true for the first shot. It is rarely true for the last one. The law now says plainly what common sense always has: when the danger stops, the shooting has to stop too.
Quick Answer
Not necessarily. Under Ninth Circuit law, force that was justified at the start of an encounter can become excessive once the threat ends. In June 2025, the full Ninth Circuit held a jury could find that an LAPD officer’s final two shots, fired after the man had fallen, were unconstitutional. The Supreme Court declined to disturb that ruling in June 2026.
Can police keep shooting someone who is already down?
Not if the person no longer poses an immediate threat. The Ninth Circuit holds that officers must reassess as an encounter unfolds. Force that was reasonable a moment earlier can become excessive once a suspect is wounded, on the ground, and not trying to get up or attack. A jury can decide whether the later shots crossed that line.
The constitutional test comes from Graham v. Connor (1989): was the force “objectively reasonable” under the circumstances the officer faced? The key word is circumstances, plural. They change. A man charging with a knife is one circumstance. The same man curled on the pavement after being shot four times is another.
California’s own deadly force statute points the same direction. Since 2020, Penal Code 835a has allowed an officer to use deadly force only when necessary to defend against an imminent threat of death or serious bodily injury. Once the threat is gone, the justification is gone with it.
What did the Ninth Circuit decide in the LAPD Hernandez case?
In Estate of Hernandez v. City of Los Angeles, decided June 2, 2025, the full Ninth Circuit found the officer’s first four shots reasonable. But it held a jury could find the final two, fired after Daniel Hernandez fell and was rolling away, unconstitutional. The court denied the officer qualified immunity on those shots.
According to the en banc opinion, the 2020 encounter followed a multi-car crash in Los Angeles. Hernandez got out holding a box cutter and advanced toward an officer who ordered him to drop it. She fired six shots in roughly six seconds. After the first four, he fell. The court held that a jury could conclude he was no longer an immediate threat when the last two were fired, and that she should have reassessed before firing again.
The City of Los Angeles asked the Supreme Court to step in. On June 22, 2026, the Court declined to hear the case, with Justices Thomas and Alito objecting, as Officer.com reported. The case now returns to the trial court.
Why does the Orange County Zion case matter?
Because it is the case that made the rule clearly established, which is what defeats qualified immunity. In Zion v. County of Orange (2017), the Ninth Circuit held that a deputy who kept shooting a man who had collapsed, and then stomped on his head, could be found to have used excessive force. The Hernandez court relied on Zion.
This is how “qualified immunity” works, and why it is such a barrier. An officer is protected unless an earlier case put him on notice that his specific conduct was unconstitutional. Judges often demand a prior case with nearly identical facts. Zion supplied one: an Orange County deputy, an armed man who stabbed a fellow officer, an initial volley that was justified, and a second round of force after the man was down. I wrote about it when it came down, in Deputy can be sued for excessive force for shooting a suspect and then stomping on his head.
Because of Zion, an officer in California cannot credibly claim he had no idea that shooting an incapacitated person might violate the Constitution. That is what made the difference for the Hernandez family.
Do courts look only at the moment the trigger was pulled?
No. In Barnes v. Felix (2025), the U.S. Supreme Court unanimously rejected the so-called “moment of threat” rule. Courts must judge police force under the totality of the circumstances, which has no time limit. Everything that happened before and during the encounter counts, not just the final split second.
That decision matters in two directions. It means the defense cannot shrink the case down to the instant the officer felt afraid. And it means the officer’s own earlier choices, rushing in, cutting off retreat, escalating, are part of the picture. I discussed how officers can create the danger they later rely on in Can the Police Create the Danger That “Justifies” Shooting You?
What evidence decides a police shooting case?
Video, timing, and physical evidence. These cases turn on what happened between each shot: where the person was, which way he was moving, and whether he was still a threat. Body camera and dash camera footage, the autopsy or medical records, the location of shell casings, and witness accounts usually decide whether a jury hears the case.
In Hernandez, the video showed the timing of each shot. In Zion, the dashcam contradicted the deputy’s testimony that the man was trying to get up. Officers’ reports are written after the fact, often after they have watched the footage. The footage itself does not change its story.
If your family is dealing with a police shooting, these are the first steps:
- Preserve every piece of evidence you have, including phone video, texts, and photos.
- Identify witnesses and cameras in the area quickly, before footage is overwritten.
- Request the video. California law generally requires agencies to release critical incident video within 45 days, with limited exceptions. I explain the process in How to Get the Body Camera Footage of Your Arrest in California.
- Mind the six-month deadline for a government claim against the city or county.
- Talk to a civil rights attorney before giving any statement to investigators.
If a loved one died, there are often two kinds of claims, which I explain in What’s the Difference Between a Wrongful Death and an Excessive Force Claim After a Police Shooting?
Talk to a police shooting attorney
I have been handling police shooting cases since 1984, including a $2.9 million result for a motorist shot by Anaheim police. Steering Law represents people shot by police and the families of those killed, across Southern California. Learn more about our police shooting and excessive force practice, or call (949) 474-1849 for a consultation.
Frequently Asked Questions
Only if that person still poses an immediate threat. Ninth Circuit law holds that force justified earlier can become excessive once the threat ends.
The en banc Ninth Circuit held in 2025 that a jury could find an LAPD officer’s last two shots, fired after the man fell, unconstitutional. The Supreme Court declined review in June 2026.
In the Ninth Circuit, Zion v. County of Orange (2017) clearly established that shooting an incapacitated person who no longer poses an immediate threat violates the Fourth Amendment.
It was a rule some courts used to look only at the instant force was used. The Supreme Court rejected it in Barnes v. Felix (2025).
A government claim against a California city or county is generally due within six months. Federal civil rights claims usually have a two-year limit. Talk to a lawyer about your exact deadlines.
California law generally requires agencies to release video of critical incidents, including shootings, within 45 days, with limited delays allowed for active investigations.
About the Author
Jerry L. Steering, Esq. has been suing police officers and defending bogus “resistance offense” criminal cases throughout California since 1984. A graduate of the University of Georgia School of Law (1984), he is admitted to practice in California, Georgia, the Ninth and Eleventh Circuits, and the United States Supreme Court. His police-misconduct cases have produced settlements and verdicts in the millions, and his work has been featured on ABC News, CNN, Good Morning America, Dateline NBC, The Washington Post, and the Los Angeles Times. He practices from Newport Beach and serves clients across Southern California.
Legal Disclaimer
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Reading this post or contacting Steering Law through this website does not create an attorney-client relationship. Every case is different; if you are facing a legal issue, you should consult a qualified California attorney about your specific situation. Past results do not guarantee similar outcomes.
Sources
- Estate of Hernandez v. City of Los Angeles, Nos. 21-55994, 21-55995 (9th Cir. June 2, 2025) (en banc): https://cdn.ca9.uscourts.gov/datastore/opinions/2025/06/02/21-55994.pdf
- Officer.com, “Supreme Court Says Former Los Angeles Police Officer May be Sued for Excessive Force in Shooting,” June 23, 2026: https://www.officer.com/command-hq/news/55386028/supreme-court-says-former-los-angeles-police-officer-may-be-sued-for-excessive-force-in-shooting
- Zion v. County of Orange, 874 F.3d 1072 (9th Cir. 2017) (Courthouse News coverage): https://www.courthousenews.com/9th-circuit-revives-suit-oc-police-killing/
- Barnes v. Felix, 605 U.S. ___ (2025) (Cornell LII): https://www.law.cornell.edu/supremecourt/text/23-1239
- Graham v. Connor, 490 U.S. 386 (1989) (Justia): https://supreme.justia.com/cases/federal/us/490/386/
- California Penal Code section 835a (California Legislative Information): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=835a
Steering Law is a California-based civil rights and criminal defense firm led by Jerry L. Steering, Esq. The firm focuses on police misconduct cases, including excessive force, false arrest, malicious prosecution, contempt of cop incidents, and 42 U.S.C. §1983 civil rights actions, while also handling serious criminal defense matters. Steering Law is dedicated to protecting clients’ constitutional rights and delivering justice for individuals who have been wronged by law enforcement.
