A divided panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 when police violate the 4th Amendment to the Constitution -- which bans "unreasonable" searches and seizure -- they lose their qualified immunity from liability -- even if the force they later use was reasonable.
The ruling came in the case of an unarmed man shot by police in San Francisco. But at least seven other U.S. appellate courts disagree, saying constitutional errors in conducting a search are irrelevant when deciding whether the later use of deadly force was reasonable.
Police groups are sounding the alarm, urging the high court to hear the San Francisco case.
In a friend-of-the-court brief, the San Francisco Police Officers Association, the Peace Officers Research Association of California, the California State Association of Counties and the League of California Cities say: "The issues presented [in the case] will have a profound impact on the members of each organization, as well as all the police officers in the 9th Circuit and constituents they serve. [The police groups] believe that the decision of the circuit court will lead directly to an increased risk of both injury and loss of life for its members if the decision is allowed to stand. They further believe that the decision impacts the ability of their members to protect and defend members of the public."
The 9th Circuit consists of California, Oregon, Washington state, Arizona, Alaska, Hawaii, Idaho and Nevada, and the U.S. territories of Guam and the Northern Mariana Islands. Decisions in the appeals court serve as precedent for the entire geographic region and courts in other circuits can refer to them.
A friend-of-the-court brief filed by the California State Sheriffs' Association, the California Police Chiefs' Association and the California Peace Officers' Association frames the dispute in even darker terms.
The "issues presented [in the case] will have a profound impact on the members of each organization, as well as peace officers in California, and the general public. ...
"The 9th Circuit Court of Appeals holding in this case puts peace officers at risk by confusing the standards applicable to the uses of force," the brief said. The groups said they "fear that this confusion, coupled with the potential loss of qualified immunity and therefore the very real possibility of personal financial liability, may very well cause peace officers to hesitate, and that any such hesitation will cost the lives of peace officers and members of the general public."
Both coalitions ask the U.S. Supreme Court to reverse the appeals court.
What happened on June 6, 2006, when officers Paulo Morgado, Michelle Alvis and John Keesor were called to a residence in San Francisco, is subject to disagreement. That evening, police received a phone call from a neighbor who said the front door of the apartment was swinging open, and the residence could be a drug house.
When Morgado arrived, the apartment door was closed. A security guard told him he didn't have a key to open it, the lock had been changed. Morgada "pushed up against the front door and it opened slightly," court records show.
After calling for backup, Morgado pushed open the door and walked into the apartment.
"After entering, he saw a bloody shirt hanging over the top of an interior door. In a post-incident interview with investigators, he stated that he could not tell if the blood was fresh or dry, but later stated it appeared fresh," the appeals court said.
Alvis and Keesor arrived and entered the apartment. All three searched the first floor and found nothing except paint cans and painting sheets. Keesor later told investigators he found nothing in the apartment to indicate an emergency, except for what appeared to be blood on the shirt.
The officers went upstairs and found a locked bedroom. When no one answered their call, they kicked down the door.
"Inside the room, they found resident, Jason Martin. They ordered him to the ground and handcuffed him. He was cooperative and complied with their requests. They searched him and found a [pocket] knife."
Then the officers heard noises in the attic. Alvis climbed into the attic with her gun drawn, followed by Morgado and Kessor, also with the guns drawn. It was dark except for their flashlights.
They spotted Asa Sullivan, who appeared to be hiding behind insulation. Alvis rejected a suggestion that officers pull back, the appeals court said. Alvis told the others, "I have him at gunpoint. He's not going anywhere," the appeals court said.
What happened next is in dispute.
Sullivan refused an order to put up his hands.
"Over the next several minutes, Sullivan made several 'disturbing' statements," lawyers for officers told the Supreme Court in a petition, "including statements that 'were of a threatening nature in regards to the officers' safety' and that 'indicated his intent not to be taken into custody.'"
The statements, the officers said, included: "Kill me or I'll kill you." "Are you ready to shoot me?" And, "Hey, tell my mom that I love her, and tell my girl that I love her. You guys, I'm gonna make my move and you'll be sorry."
Sullivan also tried to kick a hole through the floor to the apartment below, the officers said.
"Officer Keesor saw Sullivan with 'this weird look and he takes a deep breath,'" the officers said. All three "saw Sullivan suddenly bring up his right hand toward Officer Alvis. Officer Keesor saw a 'black oblong thing' in Sullivan's hand, which he thought was a gun. Officer Keesor and Officer Alvis heard a 'pop'
sound. Officer Alvis fell backwards to protect herself, and Officer Keesor saw her fall. Officer Alvis and Officer Keesor fired at Sullivan, while Officer Morgado held his fire out of concern he would shoot Officer Keesor. Sullivan was killed."
They said the "gun" turned out to be a black eyeglasses case they say was found underneath Sullivan's right forearm.
Lawyers for Sullivan's estate tell a different story.
"On the [officers'] petition's telling of the facts, Asa Sullivan resisted arrest, threatened the police, made suicidal statements and ultimately provoked the shooting by hiding his hands and then suddenly pointing an object that looked like a gun at the officers," they told the Supreme Court. "But that story depends entirely on the credibility of those accused in the shooting, and their self-serving testimony is full of inconsistencies, contradictions and demonstrable untruths. Viewing the facts in the light most favorable to [Sullivan], a jury could easily disbelieve [the officers'] version of events and decide instead that although Sullivan may have refused to cooperate with the police, he did not threaten them, suggest that he intended to commit 'suicide by cop,' or make the sudden movements the officers later claimed (with significant inconsistencies in their stories) justified the shooting."
After Sullivan's estate filed suit, a federal judge rejected an assertion by the officers that they had qualified immunity from liability for the death.
On appeal, the panel ruled 2-1 the officers had failed to prove that Sullivan did not have a "reasonable expectation" under the 4th Amendment to privacy in the residence. In fact, the appeals court majority said, Sullivan and Martin had permission from the lease-holders to be in the residence.
The courts have recognized "emergency" and "exigency" exceptions to the right to privacy.
The two exceptions are narrow and their boundaries are "rigorously guarded" to prevent "any expansion that would unduly interfere with the sanctity of the home," the appeals court majority said, citing a 2005 9th Circuit precedent.
Under the emergency exception, police may enter a home without a warrant "to investigate an emergency that threatens life or limb if the officer has objectively reasonable grounds to believe that an emergency exists and that his immediate response is needed," the appeals court said.
In contrast, the exigency exception "stems from police officers' investigatory function: It allows an officer to enter a residence without a warrant if he has 'probable cause to believe that a crime has been or is being committed and a reasonable belief that [his] entry' is needed to stop the destruction of evidence or a suspect's escape or carry out other crime-prevention or law enforcement efforts. ... Both exceptions, however, require that the officer have an objectively reasonable belief that the circumstances justify entry," the appeals court majority said.
"Viewing the evidence in the light most favorable to the [estate], defendants failed to show as a matter of law that the emergency or exigency exceptions to the 4th Amendment warrant requirement applied with regard to officer Morgado's entry and search of the apartment."
The appeals court panel ruled 2-1 the judge "properly denied the summary judgment motion [from the officers] regarding qualified immunity because defendants failed to show as a matter of law that they did not violate Sullivan's 4th Amendment rights."
U.S. District Judge George Wu, sitting on the appellate panel to fill out its three-judge requirement, dissented.
"Even accepting the proposition that officers Alvis, Keesor and Morgado's presence in the attic was not constitutionally proper," Wu said, "they cannot be found to have provoked a confrontation. ... First of all ... the officers here had no advance knowledge that, when they got into the attic, they would meet an individual who was definitely armed and/or mentally unstable. Also, the officers' actions were not excessive and/or unreasonable in light of the developing events that transpired in the attic. Furthermore, the evidence does not demonstrate that the officers' conduct either caused an escalation that led to the shooting or should have provoked an armed or violent response. ... Indeed, had Sullivan cooperated with the officers' commands as did Martin, there is no doubt that he would have been treated in the same manner and survived the encounter."
The U.S. Supreme Court already has shown some interest in the case. In May, Justice Anthony Kennedy granted a request from the officers to extend a deadline for asking the high court for review.
Though Sullivan's estate waived its right to respond to the officers' petition, the high court requested a response and the briefs in the case were distributed to the justices for a conference behind closed doors Sept. 26,
The court also extended the time for filing a response to the petition until Nov. 16.
Now all the briefs, including the friend-of-the-court briefs from police organizations, are scheduled to be considered in another conference behind closed doors Jan. 6. At that time, the Supreme Court is likely to decide whether to accept or reject the case.
At least four justices must agree to take the case before the nine-justice court can conduct review.
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