For summary judgment purposes, the Court must accept as true the sworn deposition testimony of Baskin and the independent eyewitness, who both stated that Baskin’s open and empty hands were above his head, in an act of surrender, when Detective Martinez fired the shot. Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force. The law prohibiting the use of deadly force against a non-threatening and surrendering suspect was clearly established, as evidenced by cases in jurisdictions that have addressed the issue. Thus, Detective Martinez was not entitled to qualified immunity on summary judgment.
