Petition for Writ of Certiorari — Lee v. Craighead

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Supreme Court, U.S.

FILED

04169 5MAY 1 9 2005

DEFICE OF Tye cie

No.

In the

Supreme Court of the United States

Michael A. Lee,

Petitioner,

Shenita Craighead and Sherell Craighead as

Co-Trustees for the Heirs and Next-of-Kin of

Charles Craighead, Deceased,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MANUEL CERVANTES

CITY ATTORNEY

Frank E. Villaume III (#112860) Peter G. Mikhail, Esq.

Counsel of Record (#249907)

James F.X. Jerskey (#220115) THOMAS B. OLSON

Assistant City Attorneys & ASSOCIATES, P.A.

950 City Hall and Court House 7241 Ohms Lane

15 West Kellogg Boulevard Suite 200

St. Paul, MN 55102 Edina, MN 55439

(651) 266-8770 (952) 224-3644

Attorneys for Petitioner

2005 — Bachman Legal Printing & (612) 339-9518 @ 1-800-715-3582 @ Fax (612) 337-8053

QUESTIONS PRESENTED

May a suspect intentionally seized by police challenge

the Fourth Amendment reasonableness of the seizure

based upon the risk posed to third parties? ©

When it was undisputedly improbable for a police

officer, in hot pursuit of an armed felon, to confront

the felon assaulting his next victim and find that the

victim was holding the gun, and when no court had

ruled on a similar case, did general principles of law

“clearly establish” that it was unlawful to shoot the

man with the gun?

Ne Se ana

PARTIES TO THE PROCEEDING AND STATEMENT

PURSUANT TO RULE 29.6

The parties to the proceedings below were:

Petitioner Michael A. Lee is a City of St. Paul police officer

who was a defendant/appellant in the Eighth Circuit. The

City of St. Paul was also named as a defendant on both the

federal and state law claims but the 42 U.S.C. § 1983 claim of

municipal liability was dismissed. Therefore, the City of St.

Paul is not a party to this action. Because petitioner is an

individual, no disclosures are required by Supreme Court

Rule 29.6.

Respondents Shenita Craighead and Sherell Craighead are co-

trustees for the heirs and next-of-kin of Charles Craighead,

deceased, and were plaintiffs/appellees below.

TABLE OF CONTENTS

NITE rT cc tansesnessoubdoeinehbedeesianndadanel i

PARTIES TO THE PROCEEDING AND STATEMENT

IES St IIE BID ss oniuniis dates usndbcnteeneisebabsiaiaiianniiiadeusas li

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ETE SUPE RTO cicosessnshenssesntnnssavedecennnisncemancsyi iv

Ne ae eee es ene Vii

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STATEMENT OF JURISDICTION ............c.cccccccscsccssssssseees l

CONSTITUTIONAL AND STATUTORY PROVISIONS

SITET starthclc ceri iniiaitaadacbsgeetiosbonieiiana bdandetnnmeshaeianoninn l

PME SIU BRIE © MIES oncsicsnsscncnsnsecscossensncseonsvssenonents l

I. Incident giving rise to the Case...............:cccccsssssssssssseeseees 2

EE TCI DeLee TOT 7

REASONS FOR GRANTING THE WRIT .............00..00000- 12

I. The decision below creates a circuit split on

constitutional issues of great importance....................... 12

II. This Court should grant review to direct lower courts not

to rely on general principles where officers must act

under exigent circumstances, and to settle important law

now cast into conflict and doubt .................c.ccccccccceceeee. 17

I 16

ec eke adadaebenieeiuus 24

iil

TABLE OF AUTHORITIES

FEDERAL CASES

Altman v. City of High Point,

Bae Ee Ps Bi vhsckccctdcnntensessiacvensass 15

Anderson v. Creighton,

A es Ee inakkecchdhndasdnnsacaceanincnadnandieun 10

Anderson v. Russell,

OF ie TP Gs BO ic ncsssiisnnsncssncsacecsenses 21

Archuleta v. McShan,

897 F.2d 495 (10th Cir. 1990)..................... 8, 13, 15

Brosseau v. Haugen,

Eee Ok Ges Fe Ge cansncctcscncsscssin 12, 18, 19, 20, 23

Brosseau v. Haugen,

Fee ce es Be ia vatnsarthssnecanceccndinncnn 19

Brown v. Bd. of Trustees of LaGrange Ind. School Dist.,

ope Ff 7 Lo: | RSE er pEnnen 13

Carr v. Tatangelo,

Fee Se Eee Ce Peni nkknnensdncsctsnsiscaenns 21

Craighead v. Lee,

S99 F 3G F346 (BOs Cae. 2005)... ncccccccceccconcessccss passim

Evans v. Avery,

Fe ce Se CR GN Wi ickikenciéccessacerenscsecis 16, 17

Forrett v. Richardson,

Be ee ee Ga SE Rikctnntcksnecsidascsnndatnmens 10

Graham v. Connor,

ST, eee isaecud 9, 14,17, 19

Hope v. Pelzer,

ee Pee FE Cabs daindindesitiseideiautinasensans 18, 20

Howerton vy. Fletcher,

Figg me Pye lS | ene 7-8, 14, 15

Johnson v. Schneiderheinz,

POS Fk SP Es Bi ckinwnssacacctorecauiniscsscae 10

McKelvie v. Cooper,

SO Fe Pe CA, SOs iaicccsiccsivdctasediecticaie 8, 13

McLenagan v. Karnes,

27 F.3d 1002 (4th Cir. 1994)....0.0.000000.0.. 10, 16, 21, 22

Milstead v. Kibler,

BOR Fe ESF EA Pista nisaicictcasetenisaiens f,2%

Montoute v. Carr,

bod gif si Le Me, /) Seen mane NG. 10

O'Malley v. Brierley,

hae Nk Lk OR.) Rep ieee arte om 13

Parks v. Pomroy,

SBT FSG POP CO Cie, BOO ais vivinscccaccccvvncsencscnces 21

Reese v. Anderson,

ee de Se Gs Ge, POPE sinc dckncbccesddscsnsucecass. 21

Ridgeway v. City of Woolwich Twp. Police Dep't,

924 F. Sopp. 653 OD. NI. 1996). oaccncceesecsccsancencs, 22

Saucier v. Katz,

POF Wy Piri sksskinkccnee deen 9, 10, 17, 20

Slattery v. Rizzo,

SEP © A BAP OG TO ite isctittinis bene 21

Smith v. Freland,

TOOT 2 oes Ls iia 10

Tennessee v. Garner,

FE As CCU Andsicacacidcaeteaiiak 10, 12, 14, 15, 19, 21

TOPIC vy. Circle Realty,

Soe Fe FSIS CON Gs Wi Peps cvcccctcccccsscsacsantncs 8, 13

Willingham v. Loughnan, |

321 F.3d 1299 (11th Cir, 2003)........c0ccccccceeeeeeeee 20 |

UNPUBLISHED FEDERAL CASES |

Craighead v. Lee, No. Civ. 02-943 ADM/AJB,

2004 U.S. Dist. LEXIS 1034

GED. ERA. BU, BF, Deeps sdnicscncccsicctutasensanueens 1,7,8

Craighead v. Lee, No. Civ. 04-1377,

2005 U.S. App. LEXIS 2977 (8th Cir. Minn. Feb. 18, '

Bee T Pv vccsncneccsecscscccsescniaagiaeecedeeanaeaeeel l )

Estate of Martinez v. City of Federal Way,

105 Fed. Appx. 897 (9th Cir. 2004)...................ceee 22

Powell v. Mayhew,

1998 U.S. App. LEXIS 30785 (7th Cir. 1998)......... 22 '

Turpin v. Mueller, |

37 Fed. Appx. 151 (6th Cir. 2002)....................000e 22

FEDERAL STATUTES AND COURT RULES |

28 UBL. © Tap O Ge iceskeescciscacscsgteicseuaensees l

42 WBA. © TFS Gee icsssacstctcschecseentesaeanae ii, 1

Sup. CR, BR, FRG Gieivakcinacectcckansesnsesdessaannaaineaee ii

OTHER AUTHORITIES

Bureau of Justice Statistics, U.S. Dep’t of Justice,

NCJ 194820, National Crime Victimization Survey,

IGSS ee Cr ccnscanccasivececcameas aoanausedashimaaen 15

annie

INDEX TO APPENDIX

Shenita Craighead and Sherell Craighead, as Co-Trustees

for the Heirs and Next-of-Kin of Charles Craighead,

Deceased v. Michael A. Lee and the City of St. Paul,

FIP FDO FOS COM Cie, DODB). 2. ccc cccccccccccccccaccccocsccs A-]

Shenita Craighead and Sherell Craighead, as co-trustees for

their heirs and next of kin of Charles Craighead, deceased

v. Michael A. Lee and the City of St. Paul, No. Civ. 02-943

ADM/AJB, 2004 U.S. Dist. LEXIS 1034 (D. Minn. Jan.

Pp I i cchaniptinibdanskabbeoradamnuamimeniiics ele A-13

Order Denying Petition for Rehearing and for Rehearing En

Banc, Shenita Craighead and Sherell Craighead, as Co-

Trustees for the Heirs and Next-of-Kin of Charles

Craighead, Deceased v. Michael A. Lee and the C ity of St.

Paul, No. Civ. 04-1377, 2005 U.S. App. LEXIS 2977

(8th Cir. Minn. Feb. 18, 2005)-.......0.00..0..cccccccceeees A-25

Judgment, Shenita Craighead and Sherell C raighead, as Co-

Trustees for the Heirs and Next-of-Kin of Charles

Craighead, Deceased v. Michael A. Lee and the C ity of St.

Paul, 399 F.3d 954 (8th Cir. 2005)......0..0.. ec cc cecc cece. A-26

Vii

saan a te ER a te

ee TPES LENNY ORRIN

OPINIONS BELOW

The opinion of the United States Court of Appeals is

reported as Craighead v. Lee, 399 F.3d 954 (8th Cir. 2005).

Appendix to this petition (“App.”) at A-1. The Order of the

United States District Court for the District of Minnesota

denying petitioners’ motion for summary judgment is

unpublished, No. Civ. 02-943 ADM/AJB, 2004 U.S. Dist.

LEXIS 1034 (D. Minn. Jan. 27, 2004). App. A-13.

STATEMENT OF JURISDICTION

The opinion and judgment of the Eighth Circuit was

entered on January 10, 2005. Craighead v. Lee, 399 F.3d 954

(8th Cir. 2005). An order denying the petition for rehearing

and petition for rehearing en banc was entered on February

18, 2005. Craighead v. Lee, No. Civ. 04-1377, 2005 U.S.

App. LEXIS 2977 (8th Cir. Minn. Feb. 18, 2005). App. A-

25. This petition for Writ of Certiorari has been filed within

90 days of that date. The Supreme Court has jurisdiction to

review the decision of the Eighth Circuit pursuant to 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Respondents initiated this action as a civil rights claim

for damages under 42 U.S.C. § 1983. The Fourth

Amendment to the United States Constitution provides that

“the right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and

seizures, shall be not violated.”

STATEMENT OF THE CASE

On the morning of December 3, 2001, Carlos Scott

went on a shooting spree armed with a .45 caliber handgun.

Scott shot his first victim in a drive-by shooting just after 9:00

a.m. Shortly after 10:00 a.m., he chased down his second

victim on foot and shot him in the head. Scott fled the scene

on foot and, within minutes, attempted to carjack decedent

Charles Craighead. Craighead exited his vehicle and the two

men began to fight. During the fight, Scott fired his gun

again, but did not hit anyone. Witnesses feared Craighead

would be shot. One witness reported to the 911 dispatcher,

“A guy’s pulling a gun, and there’s going to be a shooting

here,” and moments later, “Hurry! Please, hurry!”

Petitioner, Officer Michael A. Lee, was the first police

officer to catch up to Scott. Lee saw Scott and Craighead

struggling and immediately exited his squad car to confront

the situation. As expected, one man had a large caliber gun in

his hand. The other man appeared to be fighting for his life.

Lee trained his shotgun on the armed man, aimed at his upper

body, center mass, and fired, killing the armed man and

wounding the other man. Tragically and improbably,

Craighead had wrestled the gun from Scott literally seconds

before Lee arrived.

Respondents, Craighead’s heirs, sued Lee and the City

of Saint Paul under 42 U.S.C. § 1983 and state law, alleging

that the shooting violated Craighead’s right to be free from

excessive force. Lee and the City moved for summary

judgment. Respondents did not oppose the City’s motion for

summary judgment, but pressed their claims against Lee. Lee

moved for summary judgment based upon qualified

immunity. The District Court denied the motion and Lee

appealed. The United States Court of Appeals for the Eighth

Circuit affirmed the denial of summary judgment, and denied

Lee’s petition for rehearing en banc.

I. Incident giving rise to the case.

On December 3, 2001, Petitioner Lee, a 13-year

veteran of the St. Paul Police Department, was working city-

wide traffic enforceinent. He was wearing his standard police

department blue uniform and was armed with a .40 caliber

Glock pistol and Remington shotgun. Prior to December 3,

2001, Lee had never discharged a firearm in the line of duty.

That morning, Carlos Scott shot Arcell Magee in a

drive-by shooting. Starting at 9:10:18 a.m., the dispatcher

begar. broadcasting details of the Magee shooting, ' informing

all squads that the victim had driven his minivan to a fire

station, and that the suspect was a black male driving a newer

green SUV. Lee drove to the fire station, found the victim’s

minivan, and observed that the bullets had pierced the

passenger door and impacted against the driver’s door.

Judging by the size and shape of the holes, Lee concluded

they were caused by a large caliber gun, possibly a .45 caliber

or .44 magnum. Lee photographed the minivan and returned

to his squad. He heard another officer had stopped a car

matching the description of the suspect vehicle. Lee assisted

on that stop, spoke to the driver, and searched the car, but

found nothing to connect it to the shooting.

Meanwhile, Scott parked the SUV and got an

acquaintance to give him a ride to Shon Pierson’s house on

Iglehart. There, Scott confronted Pierson, chased him down,

and shot him in the head. Scott then fled on foot. At 10:19

a.m., the dispatcher directed squads to 988 Iglehart on reports

of shots fired. The dispatcher told the officers that a victim

was behind 1001 Iglehart and a black male was running on

Chatsworth towards Marshall. At 10:23 a.m., the dispatcher

reminded all squads that this incident could be related to the

earlier shooting. No further description of the suspect was

available. Lee went to the scene where he saw other squads

and an ambulance. .

' The Emergency Communication Center utilizes an operator and a

dispatcher. The operator answers 911 calls and conveys the information

to a dispatcher. The dispatcher communicates with police officers.

Officers cannot hear conversations between 911 callers and operators.

A few blocks away, Scott confronted a man outside a

house. Scott brandished his gun and asked the man for his

car keys because he needed to get away. The man said, “No,”

and pleaded with Scott, “Don’t do this to me.” Scott asked if

he could go into the house with him, but the man replied there

were kids inside and again begged Scott not to involve him.

The man feared for his life and the lives of anyone inside the

house. Scott then saw Craighead by his car and approached

him.

Craighead, accompanied by his fiancée, Joyce

McDougle, the mother of Respondents Shenita and Sherrell

Craighead, had driven to 217 North Oxford to discuss a house

painting bid with Meredith Price. Price worked with

Craighead on other jobs in the past. Craighead was in his car

preparing the bid when Scott approached. Scott said to

Craighead, “I need a ride.” Craighead replied “I’m not taking

you nowhere.” Scott countered, “N-----, you’re going to give

me a mother f---ing ride.” Craighead said “No, I ain’t.” Scott

pulled up his shirt, showing the gun, and said, “Yes, you

will.” Craighead jumped out of his car saying, “You’re going

to pull a gun on me?”

Scott took the gun out and the two men began to

wrestle for it. Price saw Scott approach Craighead’s car, but

thought nothing of it until Craighead said, “Don’t pull that

piece on me,” and McDougle jumped out screaming, “Don’t

shoot my husband!” Using her cell phone, Price called 911.

Price’s cali came in to the operator at 10:23:15. She told the

operator, “I need a police at 217 Oxford. A guy’s pulling a

gun, there’s going to be a shooting here.” The operator took

some additional information and forwarded it to the

dispatcher. At 10:23:43 the dispatcher broadcast, “Squads,

we got a black male with a gun at 217 North Oxford across

from Central High School. We have somebody on the phone

reporting this. Unknown if it’s one or two parties with guns.”

As the two men struggle by the car, Scott fired a shot.

Price pleaded with the 911 operator, “Hurry! Please, hurry!”

Craighead somehow took the gun from Scott while they

shuffled across the street locked in battle. The two men

ended up fighting next to a dumpster in an alley across

Oxford.

Officer Rob Stanway had responded to the shooting

on Iglehart and was outside his Squad in a nearby alley when

he heard a gunshot. Stanway radioed in to the Emergency

Communications Center to report the location of the gunshot.

At 10:24:08, the dispatcher told all squads, “one shot fired.”

Lee was on Iglehart at Oxford when he heard these

radio reports. He drove north on Oxford, realized that the

scene was south and made a U-turn. Lee believed that the

gunman could be responsible for both shootings that morning.

He also knew that the large caliber handgun had greater fire

power than his service weapon, and exceeded the stopping

power of his body armor. He removed the SPPD issued

shotgun from its overhead rack, chambered one round, and

placed it on his lap.

Driving south on Oxford, Lee saw McDougle running

in his direction on the sidewalk to his left. He slowed and

confirmed it was an unarmed woman. McDougle looked or

pointed back and yelled, “He’s got a gun.” Lee drove to the

dumpster just north of the alley where he saw two men

grappling and pulling at each other. Lee assumed that the

felon was the man with a gun and “stopped in front of the

problem.” That location provided the best vantage point. He

got out of his squad armed with his Shotgun. Lee saw the

large caliber gun in Craighead’s right hand. Lee advanced

towards the two men. McDougle was screaming. McDougle

testified the gun was pointed “like up.”

Price told the operator, “The one that has the gun is

not the guy, he’s not the bad guy now. He’s got it away from

the bad guy.” Officers cannot hear conversations between

911 callers and operators. The information was given to the

dispatcher, who broadcast to the officers, starting at 10:24:18:

“Received. One of the males took the gun away from another

ii ii ii

male and we have it at 217 Oxford, across from Central.” Lee

and Stanway each testified that he never heard any portion of

that dispatch.

Scott kept trying to get the gun away from Craighead.

Lee feared for his life and the unarmed man’s life. Lee was

about 28 feet from Craighead. From that distance, the pellets

from the shotgun cartridge would produce a spread of roughly

ten inches in diameter. Lee aimed the shotgun at Craighead’s

upper body, center mass. Outside the squad about three

seconds, Lee released the safety and fired one round at

Craighead. Five pellets from the round struck the front of

Craighead’s upper torso and head, killing him. One pellet

struck and seriously wounded Scott. At 10:29:28, the

operator reported that Price said the police shot the wrong

guy. The precise time that Lee shot Craighead has never been

determined.

Petitioner retained three experts who provided the

following uncontroverted, unrebutted opinions:

a. “The public is constantly given the message

not to fight an armed man to defend their

property, and such fights are extremely rare.

Usually, a victim only fights an armed

assailant when he has no choice, that is, when

he is fighting for his life. No reasonable |

officer in Lee’s position would guess that the

victim had the gun.”

b. It was objectively reasonable and tactically

appropriate for Lee to arm himself with his

SPPD-issued shotgun when he encountered

Craighead and Scott.

C. “In all my experience in law enforcement, I

have never had a situation, or known another

officer to a have a situation, that when

responding to an aggravated assault with shots

fired call and finding two people fighting, that

the person that was now armed turn out to be

the good guy who had just disarmed the bad

guy.”

d. An assailant holding a pistol above his head

could shoot the perceived victim and/or Lee

before Lee could react and shoot in self-

defense. “At this point, tactically the man with

the gun held the initiative. In other words,

every second Lee took to learn more, without

controlling the man with the gun, increased the

risk that the victim and/or Lee would be shot.”

The parties’ respective experts did dispute whether an officer

Should have known he would be shooting both men.

Petitioner’s expert opined that, based on the training officers

receive, a reasonable officer would believe that, at the

distance separating Lee and Craighead, the pellets would be

contained in a pattern that would limit the exposure to the

unarmed man. Respondent’s expert opined that an officer

would have known he would hit both men.

Il. Lower court rulings.

Neither court below performed a proper qualified

immunity analysis. The district court found that this case

arose “from a tragic and improbable sequence of events

involving an innocent bystander’s encounter with a dangerous

fleeing felony suspect.” Craighead v. Lee, No. Civ. 02-943

ADM/AJB, 2004 U.S. Dist. LEXIS 1034, at *1 (D. Minn. Jan.

27, 2004). Nevertheless, the district court denied petitioner’s

motion for summary judgment. In conflict with established

law prohibiting section 1983 plaintiffs from asserting the

rights of others, e. g., Howerton v. Fletcher, 213 F.3d 17] , 173

(4th Cir. 2000); Archuleta v. McShan, 897 F.2d 495, 497

(10th Cir. 1990); TOPIC v. Circle Realty, 532 F.2d 1273,

1275 (9th Cir. 1976); McKelvie v. Cooper, 190 F.3d 58, 64

(2nd Cir. 1999), the district court held the shooting of the

armed man unreasonable specifically because of the risk to

the unarmed man:

Knowing that only one black male is suspected

in the earlier crimes and that one of the two

men before him most likely a victim, he gets

out of his squad car and without any warning

or command aims and fires his shotgun within

a period of about three seconds. Given this set

of facts, a scenario is presented in which Lee’s

decision to fire a shotgun at two persons

cannot be said to be reasonable as a matter of

law.

Craighead, 2004 U.S. Dist. LEXIS 1034, at *4. The district

court then failed altogether to decide whether the particular

right was clearly established. Jd. at **4-6.

The Eighth Circuit affirmed the district court and

adopted its reasoning. The Eighth Circuit had “no hesitancy”

in ruling that Lee’s use of force was objectively unreasonable,

stating: :

Lee in a continuous sequence exited the squad

car, aimed his shotgun at the two men

wrestling, and fired without warning, within

approximately three seconds, while Craighead

was holding the gun overhead, pointed

upward. A trained shooter, such as Lee, would

have known that under the circumstances the

shot would hit both men, including the one

man that Lee had to presume was a victim

rather than a suspect. Furthermore, the facts,

taken in the light most favorable to

Craighead’s heirs and next of kin, show that

Lee either was still in his car or had his pack

set on when the dispatcher broadcast the news

that the gun had changed hands. It would be

objectively unreasonable for a police officer to

fire a shotgun under such circumstances.

Craighead v. Lee, 399 F.3d 954, 961-962 (8th Cir. 2005)

(emphasis added). That is the sum total of the court of

appeals’ analysis. The Eighth Circuit ignored the mandate,

under Graham v. Connor, 490 U.S. 386, 396-97 (1989), to

judge reasonableness from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight, and to allow for the fact that “police officers are

often forced to make split-second judgments — in

circumstances that are tense, uncertain, and rapidly evolving —

about the amount of force that is necessary.” Instead, the

court of appeals held the shooting was objectively

unreasonable for precisely three reasons: (1) Lee would have

known the shot would hit two men; (2) the gun was pointed in

the air; and (3) a broadcast that the gun had changed hands, a

broadcast which began seconds before the dispatcher began to

relay a witness’ report that Lee shot the wrong man.

Turning to what it recognized was the “more difficult”

second Saucier question, the court’ of appeals held that the

right was clearly established. Craighead, 399 F.3d at 962

(citing Saucier v. Katz, 533 U.S. 194, 202 (2001)). The court

conceded, “Neither party has cited a case with facts

substantially similar to those we are required to assume on

this appeal, nor have we found one.” Jd. Nevertheless,

articulating the right at the grossest level of generality

possible, the court of appeals held that it was clearly

established that an officer may not use deadly force unless the

Suspect poses a significant threat of death or serious injury to

the officer or others. Jd. Then in an inexplicable departure

from circuit precedent, and in conflict with other circuit

courts, the court of appeals held: “On the facts we are

required to assume, Craighead did not pose a significant

threat of death or serious physical injury to Lee at the time

Lee fired the shotgun because the pistol was continuously

over Craighead’s head, pointed upward, as Craighead was

keeping it from the smaller Scott.” Jd. By contrast, other

courts have held an officer does not have to wait until he sees

a gun pointed at someone to conclude the suspect poses an

imminent threat. See McLenagan v. Karnes, 27 F.3d 1002,

1007 (4th Cir. 1994) (shooting reasonable though officer

never saw suspect holding a weapon); Smith v. Freland, 954

F.2d 343, 347 (6th Cir. 1992) (holding that, where suspect

was shot and killed in his car after reaching below officer’s

line of sight, fact that suspect unarmed “irrelevant” where

possibility existed gun could have been retrieved from under

seat); Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.

1997) (“Under [Tennessee v. Garner, 471 U.S. 1 (1985)], it is

not necessary that the suspect be armed or threaten the officer

with a weapon.”); Montoute v. Carr, 114 F.3d 181, 185 (11th

Cir. 1997) (suspect with sawed-off shotgun presented officer

with “situation fraught with danger” though the weapon never

actually pointed at anyone; reasonable to believe suspect

might “wheel around” and fire). Absent from the opinion is

any analysis of whether Lee was “reasonably mistaken” to

believe that the armed man was the fleeing felon. Craighead,

399 F.3d at 961-963; see Johnson v. Schneiderheinz, 102 F.3d

340, 341 (8th Cir. 1996) (“[L]aw enforcement officials who

‘reasonably but mistakenly conclude that probable cause is

present’ are entitled to immunity.”) (quoting Anderson v.

Creighton, 483 U.S. 635, 641 (1987)); McLenagan, 27 F.3d at

1007-1008 (“We will not second-guess the split-second

judgment of a trained police officer merely because that

judgment turns out to be mistaken, particularly where inaction

could have resulted in death or serious injury to the officer

and others.”).

Next, rather than view the facts from the perspective

of what an objectively reasonable officer could know, the

court of appeals ruled the use of deadly force unjustified,

errantly based, again, on the risk of harm to another. The

court held: |

Even if Lee thought that Craighead posed a

significant threat of death or serious physical

injury to Scott, the facts we are required to

assume show that Lee fired the shotgun in

circumstances in which he knew or should

have known that he would hit both Craighead

and Scott, so he cannot have fired the shot to

protect Scott.

Craighead, 399 F.3d at 962. Further, and without analysis,

the court pronounced that a warning was feasible — not that it

was clearly established that it was feasible — and concluded

that the suspect “was not fleeing when Lee fired the shot.” Jd

Had the violent felon still held the gun when Lee

fired, no one could dispute that the felon posed an imminent

threat, that the felon would have no viable excessive force

claim, or that the felon could not defeat qualified immunity

by pointing out that part of the shotgun blast also hit his

assault victim. See Milstead vy. Kibler, 243 F.3d 157, 163 (4th

Cir. 2001) (“If we assume for the moment that this person had

been Ramey, we believe that the use of deadly force in the

circumstances would Clearly have been justified.”). The heart

of the error below was the court’s failure to start with the fact

that Lee believed the armed man was Scott, and then perform

the “reasonable mistake” analysis to determine the

constitutionality of the shooting. Craighead, 399 F.3d 954.

Instead, each of the courts below embarked on a course rife

with constitutional error, casting vital principles of law into

conflict and confusion, and defying this Court’s repeated

instructions to determine if the law was “clearly established”

at an appropriate level of specificity.

REASONS FOR GRANTING THE WRIT

This case merits Supreme Court review because the

Eighth Circuit decision creates a circuit split and establishes

new, ill-conceived constitutional law — an armed assailant has

the Fourth Amendment right not to be seized with lethal force

if that force would pose a risk of harm to a third party. Thus,

the decision denies officers responding to armed assaults the

critical discretion to fire upon a suspect in immediate

proximity to the victim, however dangerous, when the risk of

not firing may be greater. Further, this case merits review

because the courts of appeals continue to struggle in

confusion as they apply this Court’s directions for analyzing

qualified immunity. It is difficult to understand the Eighth

Circuit’s unabashed reliance on Garner's generalized

principles, in the context of the “tragic and improbable

sequence of events” in this case, while conscious of this

Court’s recent correction of the Ninth Circuit in Brosseau v.

Haugen, 125 S. Ct. 596 (2004). The court of appeals

departed from its own precedent, opening a circuit split, by

holding it clearly established that an armed suspect does not

pose an imminent threat if his gun happens to be pointed in

the air in the split second before the seizure. This Court

should direct the lower courts not to rely on general principles

when evaluating officer conduct in dangerous and exigent

circumstances. Finally, the court of appeals has “clearly

established” for future cases that a warning is feasible where

the suspect’s gun is not pointed at the assault victim or the

officer at the moment of seizure.

I. The decision below creates a circuit split on

constitutional issues of great importance.

The Eighth Circuit erred and opened a circuit split

when it held the seizure objectively unreasonable because, in

part, “[a] trained shooter, such as Lee, would have known that

under the circumstances the shot would hit both men,

" 12

including the one man that Lee had to presume was a victim

rather than a suspect,” and a violation of clearly established

law because “Lee fired the shotgun in circumstances in which

he knew or should have known that he would hit both

Craighead and Scott, so he cannot have fired the shot to

protect Scott.” Craighead, 399 F.3d at 962. What is striking

about the lower court’s risk-to-another factor is that it is

wholly independent of the other reasons given; all that

matters is that the two men were in close proximity to each

other. The risk-to-another factor does not depend on who was

holding the gun, or whether Lee might have heard a broadcast

seconds before. Thus, the risk of harm to another was an

essential element of the court’s reasonableness analysis.

Unrelated to the other factors considered, the risk-to-another

factor alone must have sufficed — as it did in the district court

— for the Eighth Circuit to hold the shooting unreasonable.

This holding conflicts generally with every circuit that has

considered the issue of third party rights in section 1983

actions, and conflicts squarely with recent decisions of the

Fourth Circuit.

These courts have held that a party cannot base his or

her section 1983 claim upon the rights of others. It is a “well-

settled principle that a section 1983 claim must be based upon

the violation of plaintiff's personal rights, and not the rights

of someone else.” Archuleta, 897 F.2d at 497: see, accord,

TOPIC, 532 F.2d at 1275 (“{L]itigants do not have standing

to assert the rights of third parties who may have been injured

by unlawful conduct.”); O'Malley v. Brierley, 477 F.2d 785,

789 (3rd Cir. 1973) (applying the general rule that a litigant’

may assert only his own rights, and cannot sue for the

deprivation of another’s rights); McKelvie, 190 F.3d at 64

(holding bar-owner has no Standing under section 1983 to

assert violation of customers’ Fourth Amendment rights);

Brown v. Bd. of Trustees of LaGrange Ind. School Dist., 187

F.2d 20, 25 (Sth Cir. 1951) (stating “[I]t is elementary that

[plaintiff] has no standing to sue for the deprivation of the

civil rights of others.”). More precisely, this Court’s Fourth

Amendment seizure jurisprudence has always focused — to the

exclusion of third parties - on the suspect and whether the

suspect's actions pose a risk of harm to others. Graham, 490

U.S. at 396 (“[P]roper application of reasonableness test

requires careful attention to . . . whether the suspect poses an

immediate threat . . . and whether he is actively resisting

arrest or attempting to evade arrest by flight.”). Determining

the reasonableness of a seizure requires balancing “the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.”

Garner, 471 U.S. at 8 (internal quotes omitted; emphasis

added).

In direct conflict with the instant case, the Fourth

Circuit has held that the use of force inquiry is “not dependent

at all on whether the officer did or did not subject third parties

to risk.” Howerton, 213 F.3d at 173. In Howerton, the district

court instructed the jury not to consider the risk to bystanders

when deciding if it was objectively reasonable to shoot an

armed suspect as he accosted a woman. /d. at 172.

Affirming, the Fourth Circuit recognized that the risk-to-

another factor had no place in a Fourth Amendment analysis:

“(T]he question is not whether the officer acted reasonably

vis-a-vis the world at large. Rather, the question is whether

the officer acted reasonably as against the plaintiff.” Id. at

173 (emphasis in original). In accord with her sister circuits,

the Fourth Circuit noted that section 1983 inures only to the

benefit of the individual asserting the claim:

[T]o recognize the risk posed to third parties

by the official use of force as a component of

the excessive force inquiry would be, in effect

(though admittedly_not in fact) to afford the

section 1983 plaintiff standing to seek and

obtain relief for the unreasonable use of force

against third parties.

Howerton, 213 F.3d at 174 (citing Archuleta, 897 F.2d at

497). The Fourth Circuit reasoned that Garner’s test for the

lawful use of deadly force “certainly does not take account of

the risk that official action poses to third parties, and in fact

leaves little or no room for the consideration of such[.]” Jd.

The Fourth Circuit recently reaffirmed this principle: “When

we speak of Fourth Amendment reasonableness, we are

taking many factors into consideration, but not all. We are

not, for example, considering potential harm to third

persons[.]” Altman v. City of High Point, 330 F.3d 194, 212

(4th Cir. 2003).

By departing from this “well-settled principle,” the

decision below not only opens a circuit split, but sets

dangerous and difficult precedent. Officers nationwide

respond to armed assaults on a daily basis. According to a

2003 Justice Department report, between 1993 and 2001 there

was an annual average of 2.3 million violent crimes involving

a weapon, including 846,950 where the weapon was a

firearm. Bureau of Justice Statistics, U.S. Dep’t of Justice,

NCJ 194820, National Crime Victimization Survey, 1993-

2001 (2003). With a daily average of roughly 2,320 violent

gun crimes, courts must give officers clear and consistent

rules for the use of lethal force. Those rules must not

automatically prohibit officers from using lethal force where

such force poses a risk to the victim. Officers must have

some discretion to decide if the risk posed by all other options

is greater. Officers responding to armed assaults in progress

do not have the luxury of making a good choice or a bad one;

every choice poses grave risk and there is no time -to

deliberate.

Moreover, the Eighth Circuit’s risk-to-another factor

is not dependent on the use of a shotgun — though, indeed,

officers often must use shotguns. Anytime an officer fires a

weapon when two people are struggling, the discharge poses a

real risk to the victim; and when officers respond to an armed

assault, the victim is commonly in immediate proximity to the

suspect. Where the circumstances require immediate action,

it is unreasonable to require officers on scene to stand by

while the victim fights for his or her life. Cf McLenagan, 27

F.3d at 1007 (“The hesitation involved in giving a warning

could readily cause such a warning to be his last.”). Is deadly

force no longer an option in hostage situations? Does the

Constitution prescribe some minimum zone of safety for

victims before officers may fire on the suspect? By its

holding, the Eighth Circuit has robbed officers of the

discretion to determine whether the risk of not shooting is

greater than the risk posed by shooting.

Now, in the Eighth Circuit an armed assailant has the

Fourth Amendment right not to be seized with lethal force if

that force would pose a risk of harm to a third party. The

risk-to-another factor does not distinguish between felon and

victim. It is undisputed that in virtually all cases the felon,

not the victim, will have the weapon and therefore be the

object of the seizure. The uncontroverted expert testimony is

that in real life the victim rarely has the weapon. That is what

makes the facts of this case so tragically improbable. Thus,

the ruling below inures to the benefit of violent felons and ties

the hands of those fighting to serve and protect. A felon who

has committed an armed assault could now sue for excessive

force arguing that the use of force posed a risk of harm to his

victim.

This absurd result is unnecessary to vindicate the

interests of third parties, whose rights are protected by the

Fourteenth Amendment. In fact, the holding below gives

felons greater rights than the third parties themselves enjoy.

When an injured third party brings a section 1983 action, the

trial court must apply this Court’s Fourteenth Amendment

substantive due process jurisprudence. Evans v. Avery, 100

F.3d 1033, 1036 (1st Cir. 1992) (noting that “outside the

context of a seizure. . . a person injured as a result of police

misconduct may prosecute a substantive due process claim

under section 1983.”). Unlike the Suspect’s Fourth

Amendment claim, the third party’s claim is analyzed under a

subjective standard. Jd. That subjective standard, which

proscribes conduct that is conscious-shocking, reckless, or

deliberately indifferent, is much higher than the Fourth

Amendment’s objective standard, which proscribes conduct

that is merely unreasonable. Graham, 490 U.S. at 399 (“The

Fourth Amendment inquiry is one of ‘objective

reasonableness’ under the circumstances, and subjective

concepts like ‘malice’ and ‘sadism’ have no proper place in

that inquiry.”). Therefore, under the holding below, a felon

now has the legal precedent to support a claim that his Fourth

Amendment rights were violated — because the officer used

force that was unreasonable vis-a-vis a third party — in

situations where the third party could make no viable claim

that the officer violated her Fourteenth Amendment rights.

Trial courts must be instructed not to consider what

happened to third parties, as the Fourth Circuit has instructed

its trial courts. This Court should grant the writ to reverse the

Eighth Circuit’s contrary ruling.

II. This court should grant review to direct lower

courts not to rely on general principles where

officers must act under exigent circumstances, and

to settle important law now cast into conflict and

doubt.

This case demonstrates that the bench, deliberative by

nature, naturally resists Saucier’s instruction to recognize that

officers usually have no opportunity to deliberate. This Court

Should grant review to address the blind eye the Eighth

Circuit has turned to this Court’s “clearly established”

jurisprudence, and to caution the lower courts not to rely on

general principles in unique and exigent circumstances.

Simultaneously citing and ignoring this Court’s most recent

qualified immunity decision, the court below demonstrates

that the work of instilling this critical doctrine in the judicial

mind set is not yet finished. Further, this Court should grant |

review to resolve an important circuit split regarding the use |

of lethal force when confronting a suspect brandishing a gun, |

and to prevent the holding below from forcing officers to ;

hesitate in circumstances that present the highest risk to

officers and the public: apprehending fleeing, armed, violent

felons willing to do anything to escape apprehension.

In Hope v. Pelzer, this Court noted that, in an obvious

case, general principles might give officers fair warning that

their conduct is illegal. 536 U.S. 730, 741 (2002). Hope

itself did not, however, turn on general principles. The case

involved the deliberate acts of prison guards who faced no

exigency, fear, or volatility. Jd. Nevertheless, this Court in

Hope reviewed precedent to determine that the guards had

fair warning that their conduct was illegal. Jd. at 742. In fact,

the available precedent was so directly on point that the

guards were left to attempt to distinguish handcuffing to a

hitching post from handcuffing to fences or the bars of jail

cells. Id.

Just last year, this Court remonstrated the Ninth

Circuit for applying general principles to find the law clearly

established in an excessive force case. See Brosseau, 125 S.

Ct. at 599. Applying general principles, the Ninth Circuit

denied qualified immunity to an officer who shot a fleeing

felon because she feared his reckless driving placed people in

the immediate area at risk. See Jd. at 600. Summarily

reversing the Ninth Circuit, this Court rebuffed the use of

general principles to find the law clearly established: ;

It is important to emphasize that this inquiry

must be undertaken in light of the specific

context of the case, not as a broad general

proposition. As we previously said in this

very context:

There is no doubt that Graham v. Connor

clearly establishes the general proposition

that use of force is contrary to the Fourth

Amendment if it is excessive under

objective standards of reasonableness. Yet

that is not enough. . . . [T]he right must

have been “clearly established” in a more

particularized, and hence more relevant

sense[.].. .

The Court of Appeals acknowledged this

Statement of law, but then proceeded to

find fair warning in the general tests set out

in Graham and Garner. In so doing it was

mistaken. . . . Of course, in an obvious

case, these standards can “clearly

establish” the answer, even without a body

of relevant case law. .. . The present case

is far from the obvious one where Graham

and Garner alone offer a basis for decision.

Id. at 599 (internal citation omitted; emphasis added). This

Court further noted the obvious — that cases post-dating the

incident could not provide fair warning to an officer. Jd. at

600 n.4. |

If Brosseau was not the obvious case, neither is the

instant case. Here, the Eighth Circuit cited Brosseau,

attempted to distinguish it on its facts, and plainly ignored its

message. Craighead, 399 F.3d at 962 (citing Brosseau for the

Proposition that “the right allegedly violated must be defined

at the appropriate level of specificity before a court can

determine whether it was clearly established”); Jd. at 962 n.4

(distinguishing Brosseau). While the Ninth Circuit at least

debated the import of a few similar cases, Brosseau vy.

Haugen, 339 F.3d 857, 871-872 (9th Cir. 2003), the Eighth

Circuit below acknowledged that there were no cases with

similar facts to this one. Craighead, 399 F.3d at 962.

Instead, it relied on cases decided both before and after the

incident for the general principle that lethal force is not

authorized if the suspect does not pose an imminent threat to

the life or safety of the officer or others. Jd. at 962-963.

Rejecting this Court’s timely rebuff, the Eighth Circuit found

that these general principles gave Lee fair warning that he

could not shoot the armed man struggling with another. /d. at

963. This Court should grant review to insist that the courts

of appeals adhere to its precedents.

Furthermore, in the context of dangerous and exigent

circumstances, this Court should direct the bench to resist the

natural temptation to rely on general principles of law. Given

the human tragedy often associated with such events, and

hindsight not easily resisted by the most disciplined minds,

these cases present courts with great temptation to cling to

general principles. Mindful of Hope’s fair warning standard,

however, the Eleventh Circuit presciently held: “Officers

facing split-second decisions in dangerous or life-threatening

situations are seldom provided with fair warning, notice or

guidance by a general requirement of reasonableness.”

Willingham v. Loughnan, 321 F.3d 1299, 1303 (11th Cir.

2003). Additionally, this reliance on general principles

thwarts Saucier’s plan to incrementally develop the body of

established law with each new case. Saucier, 533 U.S. at 201

(setting forth principles upon which a right is clearly

established is “the process for the law’s elaboration from case

to case, and . . . one reason for our insisting upon . . . the first

inquiry.”). Therefore, this Court should grant review to

emphasize that general principles rarely provide fair warning

in dangerous and exigent circumstances.

Moreover, the Eighth Circuit’s errant analysis casts

important law into conflict and doubt. The court reasoned it

was Clearly established Lee could not shoot because: (1) the

gun pointed up in the air posed no imminent threat to the

officer; (2) a warning was feasible; and, (3) Lee could not

have fired to protect the other man since he shot both men.

Yet, a cursory review of the applicable law demonstrates just

the opposite.

First, it is clearly established that officers need not

wait until they see the gun aimed at someone, and the Eighth

Circuit departed from its own precedent and opened a circuit

split by ruling otherwise. See Parks vy. Pomroy, 387 F.3d 949,

957 (8th Cir. 2004) (holding Suspect posed imminent threat

where gun was inches from the suspect’s hand); Slattery v.

Rizzo, 939 F.2d 213, 215-17 (4th Cir. 1991) (deadly force was

justified where suspect in vehicle repeatedly refused orders to

raise his hands and the officer perceived that he was holding

- something); Reese v. Anderson, 926 F.2d 494, 501 (Sth Cir.

1991) (holding it “irrelevant” that the Suspect was actually

unarmed - “had [he] in fact retrieved a gun from his seat, he

could have caused injury or death[.]”); McLenagan, 27 F.3d

at 1007 (4th Cir. 1994) (split-second decision to shoot

reasonable despite fact officer never saw handcuffed suspect

holding a weapon); Anderson vy. Russell, 247 F.3d 125, 131

(4th Cir. 2001) (shooting unarmed suspect facing away from

the officer reasonable where the Suspect was reaching for

what the officer thought might be a weapon); Milstead, 243

F.3d at 165 (shooting of unarmed suspect reasonable despite

mistaken belief he was armed). The holding below is all the

more chilling to law enforcement because Lee was in hot

pursuit of an armed felon who just shot two people. ,

Second, in Garner, the Supreme Court held that an

officer should deliver a warning “where feasible” before

using deadly force. 471 U.S. at 11-12. Garner refused to

inflexibly require a warning in every circumstance, plainly

recognizing that a warning was not always feasible. So too

have other courts. See Carr vy. Tatangelo, 338 F.3d 1259,

1269, n.19 (11th Cir. 2003) (quoting McLenagan, 27 F.3d at

1007) (“We decline, therefore, to fashion an inflexible rule

that, in order to avoid civil liability, an officer must always

warn his suspect before firing--particularly where, as here,

such a warning might easily have cost the officer his life.”).

In this case, and in the absence of factually similar cases, the

Eighth Circuit concluded “the facts we are required to assume

show that a warning was feasible but not given.” Craighead,

399 F.3d at 962. Lee arrived moments after the suspect had

fired his weapon for the third time that morning, to find the

perceived suspect committing another armed assault. The

court of appeals had before it uncontroverted expert testimony

that the gunman held the initiative and could shoot the victim

and/or Lee before the Lee would have time to react. At that

time, it was not clearly established that a warning was

feasible. Indeed, to this date, the few courts to have

considered the feasibility of a warning in circumstances

similar to those presented in this case have concluded that it

was not feasible. See e.g., Ridgeway v. City of Woolwich

Twp. Police Dep't, 924 F. Supp. 653 (D. N.J. 1996) (stating

that warning not feasible where “officer reasonably believes,

based on the suspect’s prior conduct, that such a warning

would not cause the suspect to surrender, but rather would

provoke the suspect to engage in violent and life-threatening

behavior, or to increase his or her efforts to flee.”). See also

Estate of Martinez v. City of Federal Way, 105 Fed. Appx.

897, 899, 2004 U.S. App. LEXIS 13850, *5 (9th Cir. 2004)

(“verbal warnings are not feasible when lives are in

immediate danger and every second matters.”); Turpin v.

Mueller, 37 Fed. Appx. 151, 154, 2002 U.S. App. LEXIS

9766, *8 (6th Cir. 2002) (“[B]ecause [the officer] reasonably

believed that he was in imminent danger, giving a warning

would not have been feasible.”); Powell v. Mayhew, 1998

U.S. App. LEXIS 30785, *8 (7th Cir. 1998) (“[The officer]

had only seconds to react. Had he not shot at [the suspect], he

would have put his own life at risk. [U]nder the

circumstances, a warning was not feasible[.}”).

Third, as discussed above, no court has ever held that

a person has the right not to be seized if the force used poses a

risk to another, and again, the court of appeals opened a

circuit split by ruling otherwise. If that ruling now stands as

law, it was not clearly established at the time of the incident.

See Brosseau, 125 S. Ct. at 600 n.4. It is important to note

what the court of appeals did not say. It did not reason that it

was Clearly unlawful to shoot because it had to assume Lee

heard the broadcast that the gun had changed hands. Such a

holding would be wrong for a number of reasons.2 Whatever

was in the mind of the court below, what matters is the

precedent it penned: a gun pointed up is not an imminent

threat; it is feasible to warn a violent fleeing felon in the act

of committing another armed assault; and, an officer may not

seize a suspect if doing so risks harm to another.

Now officers must question whether they can use

lethal force if the suspect’s gun is not trained on them. Now

officers in hot pursuit of a violent fleeing felon, must give a

warning before shooting a violent felon in the act of

committing armed assault. Now officers must hesitate to

shoot, no matter how grave the risk of hesitating, if there is a

risk they might hurt another person. Officers looking to this

opinion for guidance on the use of deadly force will instead

> Some of those reasons include: the scant seconds within which the

officer must act; the improbability of finding a victim with a gun; the

absence of any experience regarding what behavior to expect when a gun

changes hands; the fact that eyewitness accounts of violent crimes can be

unreliable; the age of the information broadcast (i.e., the gun could have

changed hands again); the counterintuitive nature of the information

broadcast; and, the ambiguity of the victim’s intentions once he gains the

upper hand. Barring hindsight, officers cannot know if they are witnessing

a carjacking, a turf war, a drug feud, or any number of other scenarios

officers encounter every day. The broadcast stated that “one of the males

took the gun away from another male.” Hindsight establishes that

Craighead was an innocent victim, and his death is a tragedy. In police

experience, however, the difficult fact remains that not all “other males”

are innocent or hold benign intentions. Given all the uncertainty

Surrounding the extreme situation, the absence of any similar cases for

guidance, and the split seconds Lee had to act, it was not clearly

established that Craighead did not pose an imminent threat.

be confused, chilled, and, ultimately, less willing to engage in

the kind of vigorous law enforcement this Court has taken

pains to encourage.

CONCLUSION

Petitioner Michael A. Lee respectfully requests that

the Court grant his petition for a writ of certiorari.

Respectfully submitted,

MANUEL CERVANTES

CITY ATTORNEY

Frank E. Villaume III, #112860

Counsel of Record

James F.X. Jerskey, #220115

Assistant City Attorneys

550 City Hall and Courthouse

15 West Kellogg Boulevard

St. Paul, MN 55102

(651) 266-8770

Peter G. Mikhail, Esq., #249907

THOMAS B. OLSON & ASSOCIATES, P.A.

7241 Ohms Lane H

Suite 200 |

Edina, MN 55439

(952) 224-3644 ©

Attorneys for Petitioner

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 04-1377

Shenita Craighead and Sherell Craighead,

as Co-Trustees for the Heirs and Next-of-Kin

of Charles Craighead, Deceased,

Appellees,

* Appeal from the United States

V. ~ *District Court for the District

*of Minnesota

Michael A. Lee and vi

the City of St. Paul, ’

Appellants.

Submitted: November 19,2004

Filed: January 10, 2005 (Corrected 3/1/05)

Before WOLLMAN and HEANEY, Circuit Judges, and

HOLMES,’ District Judge.

HOLMES, District Judge.

Carlos Scott shot two men in less than two hours on the

morning of December 3, 2001. After doing so, he pulled his

gun on Charles Craighead, but Craighead wrestled the gun

away from him. Craighead and Scott were still wrestling when

Officer Michael Lee arrived shortly after Craighead had taken

the gun from Scott. Lee's shotgun blast killed Craighead and

wounded Scott.

' The Honorable J. Leon Holmes, United States District Judge for the

Eastern District of Arkansas, sitting by designation.

A-1

Craighead's heirs and next of kin brought this action

against Lee individually and against the City of St. Paul,

asserting claims under 42 U.S.C. § 1983, the Minnesota

Wrongful Death Act (Minn. Stat. $73.02), and the common law

of Minnesota. Lee and the City of St. Paul moved for summary

judgment based on qualified immunity as to the Section 1983

claims and based on official immunity as to the state-law

claims. Craighead's heirs and next of kin conceded their

Section 1983 claims against the City of St. Paul, which left the

claim against Lee individually as the only count premised on

federal law. The district court” denied the motion for summary

judgment. Lee and the City of St. Paul appeal that ruling. We

affirm.

The facts, are undisputed as to the events that preceded

Lee's arrival on the scene where Craighead and Scott were

wrestling over the gun.

On the morning of December 3, 2001, while driving a

borrowed vehicle, Scott shot Arcell Magee in a drive-by

shooting. The St. Paul police dispatcher alerted the patrolmen

on duty through the St. Paul police communications system at

09:10:18. The only description of the gunman was that he was a

black male. Scott abandoned the borrowed vehicle, obtained a

ride to the house of Shon Pierson, met Pierson on the sidewalk,

chased him down, and shot him in the head. That shooting was

reported by the dispatcher in three different announcements

between 10:18:55 and 10:19:50.

Scott fled on foot. Over the next four minutes, the

dispatcher reported sightings of a black male running in the

area. Scott went to the vicinity of Marshall and Oxford, where

* The Honorable Ann D. Montgomery, United States District Judge for the

District of Minnesota.

A-2

he twice attempted to hijack a car. The first man begged,

"Don't do this to me," and Scott left him. Scott then saw

Charles Craighead next to a car and approached him.

Craighead had just left the house of Meredith Price after

negotiating a contract to paint her house. He was accompanied

by Joyce McDougle. Scott attempted to force Craighead to

give him a ride. Craighead grabbed Scott, and the two men

started wrestling. Craighead, like Scott, was a black male.

Price called 911 at 10:23:15 and said, "I need police at

217 Oxford. A guy's pulling a gun, there's going to be a

shooting here." Price continued to talk to the 911 operator as

events transpired. At 10:23:43, the dispatcher broadcast,

"Squads, we got a black male with a gun at 217 North Oxford

across from Central High School. We have somebody on the

phone reporting this. Unknown if it's one or two parties with

guns." As the two men struggled, a shot was fired. At 10:24:08,

the dispatcher told all squads, "one shot fired," and she

followed up at 10:24:18 with the location: "Oxford and

Marshall."

The wrestling took the two men across the street toward

a dumpster. As they were wrestling, Craighead took the gun

away from Scott.

Lee was in the vicinity, and he started driving toward

North Oxford across from Central High School. Lee thought

that the gunman could be the one who was responsible for the

two shootings earlier that morning. He removed the shotgun

issued by the St. Paul Police Department from its overhead

rack and chambered one round. Driving south on Oxford, Lee

crossed Marshall where he saw McDougle. He then drove

further until he came to the dumpster where the two men were

wrestling. Lee exited his squad car with his shotgun in hand.

From the time that Lee exited the squad car with his

A-3

shotgun in hand, the testimony diverges. At 10:24:18, the

dispatcher broadcast a report: "Received. One of the men, the

males, took a gun away from another male and we have it at

two nine seventeen North Oxford, across from Central." Lee

testified that he had already exited the squad car when that

report was broadcast. Craighead's heirs argue that the timing of

the events makes it likely that Lee was still in the squad car

when the dispatcher broadcast the news that the gun had

changed hands. Lee also testified that when he exited the car he

did not turn on his portable communications unit known as a

"pack set," so he did not hear the news that the gun had

changed hands. Craighead's heirs note that Lee testified that he

customarily maintained radio contact when not in his car

through his "pack set" and that he would turn his pack set on

by reflex when he exited the car. Another officer testified that

Lee's habit is common practice among St. Paul police officers.

When Lee exited the squad car, his focus was on the

man with the gun — Craighead. Lee testified that he yelled at

the top of his voice several times, drop the gun, drop the gun,

drop the gun. Lee says that Craighead responded, looked at

him, and placed the gun on the top of an object in the

dumpster. Because the gun was still in reach, Lee continued to

yell at Craighead to drop the gun, drop the gun. A moment

later, according to Lee, Craighead reached back in the

dumpster and grabbed the gun, pointed the gun toward Scott,

and then pointed it back toward Lee. Lee says that, when

Craighead pointed the gun back toward him, he hit the safety

on his shotgun, aimed at Craighead, and fired. Craighead and

Scott were still wrestling when Lee fired. Lee was

approximately 30 feet from them. The shot hit both men. Scott

fell immediately, but Craighead did not, which made Lee think

he had missed Craighead. He yelled at Craighead, get down,

get down, and then Craighead went down. The 911 operator

reported at 10:24:28, "Says the police shot the wrong guy.” Lee

reported at 10:24:29, "Shots fired! One down!"

A-4

Lee estimated that ten seconds passed between his

exiting the squad car and firing the shotgun. Assuming that he

fired before 10:24:28 -when the dispatcher reported, "Says the

police shot the wrong guy" — on Lee's account he would have

been outside his car when the dispatcher broadcast the report at

10.24:18 that the gun had changed hands.

The testimony of Price and McDougle conflicts with

Lee's. Price and McDougle testified that Craighead held the

gun over his head pointed upward throughout his struggle with

Scott. Craighead was substantially taller than Scott and was

holding the gun out of Scott's reach as an older child would

hold an object out of the reach of a younger child who was

trying to take it from him. Price and McDougle testified that

Craighead never pointed the gun toward Lee. They testified

that Lee did not tell Craighead to put the gun down. They

testified that Lee gave no warnings and no commands. They

testified that Craighead never put the gun on an object in the

dumpster. McDougle estimated that seven or eight seconds

passed between the time Lee exited his car and the time he

fired his shotgun. Price testified, "[Lee] arrived, got out of the

car, and shot him. It was pretty much that quick." She

estimated that three seconds passed between the time Lee

exited the squad car and fired his shotgun. "It all happened

very, very quickly."

If Lee fired the shot six seconds or less before 10:24:28

when the 911 operator reported, "Says the police shot the

wrong guy,’ and if Lee took only three seconds from exiting

the car until firing the shot, he would have been in his car when

the dispatcher reported that the gun had changed hands.

Another officer, Rob Stanway, followed Lee to the

scene at a distance of three or four car lengths. Stanway saw

the men wrestling, saw the gun, and started to open his door

A-5

and take cover behind it so that he would not be exposed to

pistol fire, but he heard the blast of Lee's shotgun before he

could get out. He did not see Lee fire.

Both sides submitted expert witness reports.

Defendants’ experts say that Lee's actions were objectively

reasonable. Plaintiffs' experts say that they were not. Plaintiffs’

experts say that, at the distance of some 30 feet, under the

circumstances with the two men grappling, a trained shooter

would have known that the shot would probably hit both men.

One of plaintiffs' experts opined, "The shooter elected to shoot

both the suspect and his victim, whomever either might be,

without any discrimination whatsoever for who was going to

be seriously injured and/or killed[.]" Another of plaintiffs'

experts opined, "Officer Lee consciously chose to discharge his

firearm at both men, reasonably knowing that one of them was

not the suspect and was not involved in any criminal activity."

Il.

In deciding a motion for summary judgment, a district

court must view the facts and inferences in the light most

favorable to the party opposing summary judgment. Boerner v.

Brown & Williamson Tobacco Corp., 260 F.3d 837, 841 (8th

Cir. 2001). The district court did so here. Thus, the district

court accepted plaintiffs’ version of the facts according to

which Craighead held the gun over his head, pointed upward,

throughout his struggle with Scott; Lee knew that only one

black male was suspected in the earlier crimes; Lee knew that

one of the two men before him was most likely a victim; and

Lee exited his squad car and fired his shotgun within three

seconds, without issuing any warnings or commands, under

circumstances in which a trained shooter would have known

that the shot would hit both men.

Because this is an interlocutory appeal from the denial

A-6

of qualified immunity, our review is limited to the legal

question of whether Lee and the City of St. Paul are entitled to

immunity. We have jurisdiction to review whether an official is

entitled to immunity to the extent the question turns on an issue

! of law, but we may not review a district court's conclusion that

the pretrial record presents a sufficient factual dispute requiring

a trial. Hawkins v. Holloway, 316 F.3d 777, 781 (8th Cir.

2003). Thus, we must accept the summary judgment facts as

described by the district court because evidentiary

. determinations are not presently appealable. Moran v. Clarke,

359 F.3d 1058, 1060 (8th Cir. 2004). We will affirm the denial

of summary judgment on the issue of qualified immunity if a

genuine issue of material fact exists as to whether a reasonable

officer could have believed his actions to be lawful. Wilson v.

City of Des Moines, 293 F.3d 447, 449 (8th Cir. 2002).

Il.

In a suit against an officer for an alleged violation of a

constitutional right, the elements of qualified immunity must

be considered in proper sequence. The first question is, taken

in the light most favorable to the party asserting the injury, do

the facts alleged show that the officer's conduct violated a

constitutional right? Saucier v. Katz, 533 U.S. 194, 201, 121 S.

Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). If the facts, taken in

the light most favorable to the party asserting injury, show that

the officer's conduct violated a constitutional right, the second

question is whether the right was clearly established. Jd. at 202,

121 S. Ct. at 2156.

Since this case presents an issue of whether an officer

used excessive force, the case must be analyzed under the

Fourth Amendment's "objective reasonableness" standard.

Graham v. Conner, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867-

68, 104 L. Ed. 2d 443 (1989). "[T]he question is whether the

officers’ actions are ‘objectively reasonable’ in light of the facts

A-7

and circumstances confronting them, without regard to their

underlying intent or motivation." Jd. at 397, 109 S. Ct. at 1872.

Apprehension by the use of deadly force is a seizure subject to

the reasonableness requirement of the Fourth Amendment.

Tennessee v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85

L. Ed. 2d 1 (1985). Notwithstanding probable cause to seize a

suspect, an officer may not always do so by killing him. /d. at

9, 105 S. Ct. at 1700. "The intrusiveness of a seizure by means

of deadly force is unmatched." Jd. Hence, "[wlhere the suspect

poses no immediate threat to the officer and no threat to others,

the harm resulting from failing to apprehend him does not

justify the use of deadly force to do so." Jd. at 11, 105 S. Ct. at

1701. "Thus, if the suspect threatens the officer with a weapon

or there is probable cause to believe that he has committed a

crime involving the infliction or threatened infliction of serious

physical harm, deadly force may be used if necessary to

prevent escape, and if, where feasible, some warning has been

given." /d. at 11- 12, 105 S. Ct. at 1701.

As to the first question that Saucier requires us to

address, we have no hesitancy in saying that the facts alleged,

taken in the light most favorable to Craighead's heirs and next

of kin, show that Lee's use of deadly force was objectively

unreasonable.*> The evidence most favorable to Craighead's

heirs and next of kin shows that Lee in a continuous sequence

exited the squad car, aimed his shotgun at the two men

wrestling, and fired without warning, within approximately

three seconds, while Craighead was holding the gun overhead,

pointed upward. A trained shooter, such as Lee, would have

known that under the circumstances the shot would hit both

> We emphasize that we are bound in this interlocutory appeal to accept the

facts found by the district judge, who in turn was required to view the facts

in the light most favorable to the party opposing summary judgment. At

trial, the finder of fact may disbelieve any or all of the facts assumed in this

opinion and may credit Lee's testimony and that of his experts against the

evidence offered by plaintiffs.

A-8

men, including the one man that Lee had to presume was a

victim rather than a suspect. Furthermore, the facts, taken in

the light most favorable to Craighead's heirs and next of kin,

show that Lee either was still in his car or had his pack set on

when the dispatcher broadcast the news that the gun had

changed hands. It would be objectively unreasonable for a

police officer to fire a shotgun under such circumstances.

The more difficult question is the second one that

Saucier commands us to address, i.e., whether the right was

clearly established. A right is clearly established when that

right is so clear that a reasonable official would understand that

what he is doing violates that right. Saucier, 533 U.S. at 202,

121 S. Ct. at 2156. Although the first question is one of

objective reasonableness and the second question is also one of

reasonableness, the Supreme Court emphasized in Saucier that

the two questions are not duplicative and must be addressed

separately. The key distinction between the two questions is

that the right allegedly violated must be defined at the

appropriate level of specificity before a court can determine

whether it was clearly established. Jd. See also Brosseau v.

Haugen, 543 U.S. __, 125 S. Ct. 596, 599-600, 160 L. Ed. 2d

(2004); Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct.

1692, 1700, 143 L. Ed. 2d 818 (1999).

Neither party has cited a case with facts substantially

similar to those we are required to assume on this appeal, nor

have we found one. Nonetheless, "officials can still be on

notice that their conduct violates established law even in novel

factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741, 122

S. Ct. 2508, 2516, 153 L. Ed. 2d 666 (2002). "Although earlier

cases involving ‘fundamentally similar’ facts can provide

especially strong support for a conclusion that the law is

clearly established, they are not necessary to such a finding."

Id. Hence, the issue is not whether prior cases present facts

substantially similar to the present case but whether prior cases

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would have put a reasonable officer on notice that the use of

deadly force in these circumstances would violate Craighead's

right not to be seized by the use of excessive force. At least

since Garner was decided nearly 20 years ago, officers have

been on notice that they may not use deadly force unless the

suspect poses a significant threat of death or serious physical

injury to the officer or others. On the facts we are required to

assume, Craighead did not pose a significant threat of death or

serious physical injury to Lee at the time Lee fired the shotgun

because the pistol was continuously over Craighead's head,

pointed upward, as Craighead was keeping it from the smaller

Scott. Even if Lee thought that Craighead posed a significant

threat of death or serious physical injury to Scott, the facts we

are required to assume show that Lee fired the shotgun in

circumstances in which he knew or should have known that he

would hit both Craighead and Scott, so he cannot have fired the

shot to protect Scott. Nor does Lee claim that he fired to

protect Scott. The facts we are required to assume show that a

warning was feasible but not given. Moreover, Craighead was

grappling with Scott; he was not fleeing when Lee fired the

shot.

Before December 3, 2001, this Court had denied

qualified immunity in at least four cases in which the plaintiff

presented evidence to show that the officer used deadly force

under circumstances in which the officer should have known

that the person did not present an immediate threat of serious

physical injury or death. Ribbey v. Cox, 222 F.3d 1040 (8th

Cir. 2000); McCaslin v. Wilkins, 183 F.3d 775 (8th Cir. 1999);

Woolfolk v. Smith, 81 F.3d 741 (8th Cir. 1996); Ludwig v.

Anderson, 54 F.3d 465 (8th Cir. 1995). In addition, in Gardner

* Unlike Brosseau, which the Supreme Court decided on December 13,

2004, the facts we must assume show that Lee gave no commands and

made no attempt to use less-than-deadly force; nor, as mentioned, was

Craighead fleeing when Lee fired.

A-10

v. Buerger, 82 F.3d 248 (8th Cir. 1996), this Court reversed a

judgment as a matter of law in favor of an officer because a

jury could reasonably have believed that the officer used

deadly force against a person who did not pose an immediate

threat of serious physical injury or death to him. Those cases,

along with Garner, put officers on notice before December 3,

2001, that they may not use deadly force under circumstances

in which they should know that the suspect does not present an

immediate threat of serious physical injury or harm.

Craighead's right not to be seized by deadly force was clearly

established with sufficient specificity to meet the second prong

of Saucier.

In Wilson v. City of Des Moines, 293 F.3d 447 (8th Cir.

2002), which was decided seven months after December 3,

2001, this Court affirmed denial of summary judgment on

qualified immunity where the plaintiff presented evidence to

show that deadly force was used in 1999 against a person who

did not pose an immediate threat of serious physical injury or

death to the officer. In each of these six cases -Ribbey,

McCaslin, Gardner, Woolfolk, Ludwig, and Wilson -the officer

presented evidence to show that the person against whom

deadly force was used had posed a significant threat of death or

serious physical harm. Nevertheless, in each case, this Court

held that a genuine issue of material fact precluded entry of

summary judgment as a matter of law in favor of the officer.

See also Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d

756 (2nd Cir. 2003); Carr v. Castle, 337 F.3d 1221 (10th Cir.

2003); Curley v. Klem, 298 F.3d 271 (3rd Cir. 2002); Clem v.

Corbeau, 284 F.3d 543 (4th Cir. 2002). Wilson held that

summary judgment on qualified immunity was inappropriate

because "[t]he current record does not conclusively establish

the reasonableness of the officers’ actions or beliefs." Wilson,

293 F.3d at 454. Likewise, the record here does not

conclusively establish the reasonableness of the officer's

actions. Therefore, the district court correctly held that

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summary judgment on the basis of qualified immunity is

inappropriate.

IV.

The district court also denied Lee and the City of St.

Paul's motion for summary judgment based on official

immunity as to the state-law claims. Under Minnesota law, the

decision to use deadly force is a discretionary decision entitling

a police officer to official immunity absent a willful or

malicious wrong. Maras v. City of Brainerd, 502 N.W.2d 69,

- 77 (Minn. 1993). Official immunity also protects government

entities from vicarious liability for actions that are entitled to

immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312,

316 (Minn. 1998). In determining whether an official

committed a willful or malicious wrong, the court considers

whether the official has intentionally committed an act that he

had reason to believe is prohibited. State by Beaulieu v. City of

Mounds View, 518 N.W.2d 567, 571-72 (Minn. 1994).

Whether or not an officer acted willfully or maliciously is

usually a question of fact to be resolved by the jury. Maras,

502 N.W.2d at 77. The reasoning that led us to affirm the

denial of qualified immunity as to plaintiffs’ Section 1983

claims leads us to affirm the denial of official immunity as to

the state-law claims.

. -

The ultimate outcome of this case may well depend on

whose testimony the finder of fact believes. This is a classic

example of a case that should be decided by trial rather than by

summary judgment. Therefore, we affirm.

A-12

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Shenita Craighead and Sherell Craighead,

as co-trustees for their heirs and next of kin

of Charles Craighead, deceased,

Plaintiffs,

MEMORANDUM OPINION

v. AND ORDER

Civil No. 02-943 ADM/AJB

Michael A. Lee and

the City of St. Paul,

Defendants.

Frederick J. Goetz, Esq., Goetz & Eckland P.A.., Minneapolis,

MN, and John C. Goetz, Esq, Schwebel, Goetz & Sieben,

P.A., Minneapolis, MN, appeared for and on behalf of

Plaintiffs.

Peter G. Mikhail, Esq., and Frank E. Villaume III, Esq.,

Assistant Saint Paul City Attorneys, appeared for and on

behalf of Defendants.

I. INTRODUCTION

On December 4, 2003, the parties presented oral

arguments on the Motion for Summary Judgment [Docket

No. 371 of Defendants Michael A. Lee ("Lee" or "Officer

Lee") and the City of St. Paul ("the City") before the

undersigned United States District Judge. Defendants assert

immunity protects them from the violation of civil rights

allegations brought by Plaintiffs Shenita Craighead and

Sherell Craighead. as co-trustees for their heirs and next of

kin of Charles Craighead, deceased, ("Plaintiffs"). For the

reasons set forth below, Defendants' Motion is denied in part

and granted in part.

A-13

Il. BACKGROUND!

This case arises from a tragic and improbable sequence

of events involving an innocent bystander's encounter with a

dangerous fleeing felony suspect. At approximately 9:10 on

the morning of December 3, 2001, a 911 operator transmitted

a report of a drive-by shooting in the area of Van Buren,

Minnehaha and Victoria streets in St. Paul, Minnesota. Jeffery

Aff. J 11. Officer Michael Lee, a 13-year veteran of the St.

Paul Police Department, was working traffic patrol and

received the dispatch broadcast to all squad cars stating the

shooting suspect was a black male driving a green Ford

Explorer. Lee proceeded to the reported location of the

shooting and observed the victim's car door with bullet holes

made by a large caliber gun. At around 10:20 a.m., another

"shots fired" dispatch was relayed. Officers were told of a

victim near the intersection of Chatsworth and Iglehart in St.

Paul, and that a black male was running on Chatsworth

toward Marshall Avenue, who the dispatcher stated could be

the victim or the shooter. Id. Officer Lee drove to this second

crime scene where he observed other police cars and an

ambulance. A few minutes later, the dispatcher broadcast a

report of a man with a gun at 217 North Oxford, the residence

of Meredith Price ("Price"), a woman Charles Craighead

("Craighead"), the decedent, had visited that morning.

Information was dispatched that someone was on the phone

reporting a black male had a gun at this location, and that it

was "[u]nknown if it's one or two parties with guns.” Id.

Prior to this third reported incident, Carlos Scott

("Scott") had shot the victim of the drive-by attack at

Minnehaha and Victoria with a .45 caliber pistol and fled in a

green sport utility vehicle. Nelson Aff. J§ 6-9. Scott then

drove to a home on Iglehart Avenue and shot a second victim

in the head, fleeing on foot in the direction of Marshall

' Defendants have accepted Plaintiffs’ version of the facts, as must the

Court, for purposes of this summary judgment analysis.

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Avenue. Id. J 8, 9. At the time of these shootings, Craighead

was speaking with Price regarding a bid for a painting project.

At one point, he returned to his car, parked on Oxford Street,

to prepare a proposa Price Dep. at 33-34. At about this time,

Scott was near the intersection of Marshall and Oxford. where

he brandished his weapon and asked a bystander for his car

keys so he could escape. Nelson Aff. J 9. When the man

declined, Scott saw Craighead at his car and approached him,

demanding a ride. McDougle Dep. at 87-88. Craighead

refused and Scott flashed the gun, repeating the demand, and

the two men then physically engaged, wrestling for the pistol.

Id. at 88-90. Joyce McDougle ("McDougle"), Craighead's

fiancé and the mother of his children, got out of the car and

observed Craighead seize the gun away from Scott in their

continuing struggle. Id. at 90-91. She then ran into the house

to tell Price to call the police. Id. at 94.

Price had seen the events unfold and called 911 at

10:23:15. Jeffery Aff. { 12. Lee heard the ensuing dispatch

broadcast while at a nearby intersection. He believed the

gunman could be the suspect in the two earlier shootings, in

possession of a large caliber gun, capable of penetrating his

protective vest. Lee Dep. at 74-75; Lee Statement at 22. He

loaded his police shotgun with one round and proceeded to

217 Oxford. As he crossed Marshall Avenue. Let: first saw

McDougle, who yelled "he's got a gun." Lee Dep. at 76. He

then drove on and observed Craighead and Scott pulling at

one another in an alley. Id. Lee has testified he stepped from

his squad car armed with the shotgun and with his radio

headset switched off, so that he was unable to hear the

continued broadcast transmission of the additional

information being given to dispatch by the 911 operator. Lee

Dep. at 91-92. 126. At this time, non-party witnesses relate

that Craighead, who was six inches taller than Scott, was

holding the gun pointing up towards the sky, attempting to

keep it out of Scott's reach. Price Dep. at 43-44,49,51;

McDougle Dep. at 92. Price relayed to the emergency

A-15

operator that the man holding the gun was not the suspect,

that he had gotten it "away from the bad guy.” Jeffery Aff.

412. This information was then broadcast on the police

dispatch radio at 10:24:18, but because he was outside of his

car without his headset turned on, Lee testified he did not hear

this crucial information.” Lee Dep. at 126.

Scott continued to grab for the gun, which Lee

observed in Craighead's right hand. About three seconds after

leaving his vehicle and advancing toward the two struggling

black men, Lee released the safety and fired one round, fatally

wounding Craighead. Price Dep. at 52: Lee Dep. at 100;

Goetz Aff. Ex. Q (Final Autopsy Protocol). Lee believes he

feared for his life and that the armed man was the perpetrator

of the morning's shooting spree. Lee Dep. at 106. The

witnesses say they never observed the gun pointed at Lee.

Price Dep. at 49; Adams Dep. at 38; McDougle Dep. at 106.

They further testified they did not hear Lee give any warning

or command to drop the weapon before he fired a shotgun

blast at Craighead. Price Dep. at 52, 65-66; Adarns Dep. at

32; McDougle Dep. at 106.

Police officer Rob Stanway had also responded to the

alert, and states that when he arrived on the scene he stopped

three to four car lengths behind Lee's vehicle and saw two

black males struggling over a gun. Stanway Dep. at 18,21,23-

24. He was just beginning to exit his squad car when heard

the shot from Lee's gun and observed Craighead fall to the

ground. Id. at 20-2 1, 34-35. At 10:24:29 Lee made a call on

his radio reporting "one down.” Jeffery Aff. 12.

Scott subsequently admitted to a homicide investigator

of the St. Paul Police Department that he was responsible for

the two shootings on the morning of on December 3, 2001,

? Plaintiffs assert Lee's deposition testimony that he almost always

switched his headset on when exiting the squad car establishes evidence of

habit contradicting his sworn statement in this case that he did not hear the

broadcast’ of the gun changing hands between the wrestling men.

A-16

prior to the encounter with Craighead. Nelson Aff. 4 6-9.

If. DISCUSSION

A. Summary Judgment Standard

Summary judgment will be rendered when there exists

no genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). A genuine dispute of material fact is present and

summary judgment is inappropriate when "the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S.

242, 248 (1986). In deciding a motion for summary judgment,

the Court views the evidence in the light most favorable to the

nonmoving party and makes all permissible inferences in her

favor. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).

However, the nonmoving party may not "rest on mere

allegations or denials, but must demonstrate on the record the

existence of specific facts which create a genuine issue for

trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th

Cir. 1995).

B. Section 1983 Excessive Force Claim

Plaintiffs have conceded their 42 U.S.C. § 1983 claims

against the City and, therefore, against Lee in his official

capacity. See Pls.' Mem. in Support at 2 n.2; Johnson v.

Outboard. Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).

Thus, the claim against Lee individually is the only remaining

count premised on federal law.

Public officials such as Lee are entitled to qualified

immunity from civil liability if their actions were objectively

reasonable in light of established law. Anderson v. Creighton,

483 U.S. 635, 639 (1985). The threshold question of the

qualified immunity inquiry is whether "the facts alleged show

the officer's conduct violated a constitutional right." Saucier

v. Katz, 533 U.S. 194, 201 (2001). If so, the court proceeds to

assess whether or not the particular right asserted was clearly

established. Id. "The contours of the right must be sufficiently

A-17

clear that a reasonable official would understand that what he

is doing violates that right." Anderson, 483 U.S. at 640.

1. Violation of a Constitutional Right

The Fourth Amendment standard of objective

reasonableness governs claims of use of excessive force by

law enforcement officers. Saucier, 533 U.S. at 201-02;

Graham v. Connor, 490 U.S. 386.388 (1989). To establish

violation of the constitutional right to be free of unreasonable

seizure, Plaintiffs must show Lee's use of deadly force against

Craighead was objectively unreasonable. Graham. 490 U.S. at

394-95. The determination of whether an officer's use of force

was reasonable is an objective assessment based upon the

circumstances of the particular case, including the three

factors of "the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of officers or

others, and whether he is actively resisting arrest or

attempting to evade arrest by flight." Id. at 396. A police

officer may constitutionally use deadly force where he has

probable cause to believe the suspect poses a significant threat

of death or serious harm to himself or others. Tennessee v.

Garner, 471 U.S. 1, 11-12 (1985); Hernandez v. Jarman, 340

F.3d 617, 622 (8th Cir. 2003). The defendant's actions are

judged from the perspective of a reasonable officer on the

scene and without the benefit of hindsight. Id.

Plaintiffs assert a reasonable jury could find Lee's

actions objectively unreasonable and therefore that qualified

immunity is inapplicable.’ They argue firing at two struggling

persons when ali reports consistently identified the suspect as

a single armed black male, where witness testimony is that the

* While qualified immunity is a question of law for the Court, the

excessive force issue of objective reasonableness is often appropriate for

jury consideration and may therefore preclude summary judgment based

on qualified immunity. Wilson v. City of Des Moines, 293 F.3d 447, 453-

454 (8th Cir. 2002); see also Curlev v. Klem, 298 F.3d 271, 278 n.3 (3d

Cir. 2002).

A-18

gun was not pointed in Lee's direction and where no warning

was given,’ constitutes an unjustifiable overreaction. To hold

otherwise, they contend, would provide police a right to

indiscriminately fire at any person in the vicinity of a weapon,

regardless of the threat posed. Defendants maintain that

despite the tragic mistake, Lee acted reasonably under the

tense and rapidly-evolving situation in which he found

himself. They emphasize the severity and intensity of the

morning's events and that hindsight judgment is not

appropriate. Both sides proffer expert testimony in support of

their respective positions.

In considering the reasonableness of Officer Lee's

conduct on the morning of December 3, 2001, the seriousness

of the crimes committed by the perpetrator of the shootings

weighs in favor of Defendants’ position. See Graham, 490

U.S. at 396. Lee has testified that he believed the person he

was pursuing was likely responsible for the two earlier

shootings and was a dangerous individual. See Lee Dep. at

74. The reported crimes of that morning were extremely

violent and reflected Scott's willingness to use his gun.

However, "the intrusiveness of a seizure by means of deadly

force is unmatched." Garner, 471 U.S. at 9. To employ such

force an officer must have probable cause to believe the

Suspect presents an immediate threat of serious physical

harm. Id.at 11; Hernandez, 340 F.3d at 622. At this

procedural juncture in the case. the facts as construed in

Plaintiffs' favor do "not conclusively establish the

reasonableness of [Lee's] actions or beliefs." Wilson v. City

of Des Moines, 293 F.3d 447, 454 (8th Cir. 2002). While

appreciating that "police officers are often forced to make

split second judgments" in volatile, uncertain circumstances,

and that the record may well develop differently at trial,

presently genuine issues of fact exist as to whether a

* As noted below, Lee testified he gave repeated oral commands to drop

the weapon. Lee Dep. at 96.

A-1i9

reasonable officer in Lee's position would "haw believed his

actions to be lawful." Graham, 490 U.S. at 397; Wilson, 293

F.3d at 449. Under Plaintiffs' version of the facts; which

Defendants acknowledge the Court must accept for purposes

of this Motion, Lee drives to the scene and sees two men

tussling with one another, with the gun held by the taller man

waving in the air, generally pointed upwards. Knowing that

only one black male is suspected in the earlier crimes and that

one of the two men before him is most likely a victim, he gets

out of his squad car and without any warning or command

aims and fires his shotgun within a period of about three

seconds.° Given this set of facts, a scenario is presented in

which Lee's decision to fire a shotgun at two persons cannot

be said to be reasonable as a matter of law.

Defendants analogize these facts to two Fourth Circuit

cases in which the court found the officers entitled to

qualified immunity for the mistaken shootings of innocent

persons where no prior warnings were given. Milstead v.

Kibler, 243 F.3d 157 (4th Cir. 2001); McLenagan v. Karnes,

27 F.3d 1002 (4th Cir. 1994). In Milstead law enforcement

officials were responding to a 911 call reporting an attack on

a man and woman in their home by the woman's former

boyfriend. 243 F.3d at 160. When the police officer in -

question shot the individual who turned out to be the male

victim, much had transpired since the officer's arrival at the

scene and ht: had seen and heard first-hand the suspect's

propensity for violence. Id. The intruder had pointed a gun at

him and his partner and the officer had reason to believe he

* Lee's deposition testimony outlines very different facts. He states a

greater period of time elapsed before he fired his weapon, that he gave

loud, repeated warnings to drop the g~ul, and that Craighead

acknowledged him and set the gun down, but then picked it back up and

pointed the gun at Lee in such a way as he feared for his life. Lee Dep. at

96.99-100. At triiil the parties will have an opportunity to further develop

and probe this description of the events and other areaq of discrepancy in

the discovery evidence.

A-20

had witnessed the suspect shoot his partner down in front of

him. Id.at 160. Additionally, he had heard the suspect yell he

was going to "kill you all,"" and believed the man running

towards him could only be the intruder because he knew the

male victim had been shot in the neck and therefore thought

he could not have been running. Id.at 165. The court found

under these particular circumstances that when the man came

crashing through the door and turned in the direction of the

officer he appeared to pose an imminent deadly threat

justifying the split-second use of deadly force. Id.at 163, 165.

McLenagan similarly involved a shooting directed at a

single, though mistaken, suspect in circumstances that

appeared to present an immediate threat of serious bodily

harm. In that case, a deputy was repeatedly yelling, "'The man

has got a gun!"' as she came running down the hallway of a

make-shift courthouse to get away from an arrestee she

believed had got hold of a weapon. 27 F.3d at 1005.

Continuing her shouts, the deputy ran past a nearby police

officer, who turned and saw a man running closely behind the

deputy and almost upon the officer. Id. He could not see

whether this man had a gun in his hands, but believing him to

be the armed suspect, he shot him. Id. The man, who turned

out to be another arrestee also trying to flee (he building for

fear of the perceived danger, sustained serious injuries. Id.

The court held the credible warning of imminent danger given

by the deputy and the lack of available reaction time due to

the perceived suspect's close and advancing proximity to the

officer rendered the shooting officer's actions objectively

reasonable. Id. at 1007-08.

Neither of these cases involved a situation in which an

officer, with knowledge of one violent suspect, but not in a

hot pursuit situation, was confronted with two individuals, a

perpetrator and a victim, who fired almost immediate; at the

man with the gun despite indications that a warning was

feasible and that the circumstances may not have posed an

immediate threat to the officer. Thus, these factual scenarios

A-21

are readily distinguishable from the troubling fact pattern in

the case at bar.

Moreover, in considering the third Graham factor for

assessing reasonableness, Craighead was not attempting to

flee or escape capture at the time of the incident. Instead he

was actively grappling with Scott, and Lee concedes this was

apparent, that they gave no indication of acting in concert.

Lee Dep. at 91. Plaintiffs' submissions present sufficient

evidence to permit a reasonable jury to conclude that Lee's

actions were not objectively reasonable under the

circumstances. See generally Goetz Aff. Ex. N 97 (Blaricom

Preliminary Expert Report), Ex. O at 5-10 (Reiter Preliminary

Expert Report).

This rendition of the facts is strictly based on Plaintiffs’

evidence and is contested by Lee's contrary testimony and

Defendants' expert opinions. Law enforcement is a job fraught

with danger and the necessity of quick action. Courts should

not sit to "second guess the split- second judgments of a

police officer to use deadly force in a context of rapidly

evolving circumstances, when inaction could threaten the

safety of the officer or others." Milstead, 243 F.3d at 165.

However, where the record contains disputed facts raising a

question as to whether or not the officer could reasonably

have perceived an immediate threat, summary judgment is

inappropriate. Wilson, 293 F.3d at 454; cf. Hernandez, 340

F.3d at 624 (undisputed evidence established appearance of

significant, serious threat of harm). Further, it is significant

that Defendants' assertion that Lee was protecting the

unarmed man is contradicted by Lee firing a shot gun at two

intertwined persons where either could have easily been hit,

and in fact both were.

Accordingly, "the general prohibition against deciding

qualified immunity questions in the face of disputed historical

facts" applies to this case. Curlev v. Klem, 298 F.3d 271, 273

(3d Cir. 2002) (citing Wilson, 293 F.3d at 454, and cases of

other circuits). Defendants’ Motion for Summary Judgment on

A-22

the federal claims is denied.

C. State Law Claims

Plaintiffs additionally allege direct and vicarious

negligence by Lee and the City, respectively. Compl. § 27.

They voluntarily dismiss their claims of negligent retention

and supervision against the City. Pls.’ Mem. in Support at 30

n.162; Compl. 4 28. Defendants argue for summary judgment

on the sole remaining wrongful death claim on the basis of

official immunity.

The doctrine of official immunity shields public

officials from liability for the performance of discretionary

functions unless the official commits a willful or malicious

wrong. Johnson v. Morris, 493 N.W.2d 3 1'41-42 (Minn.

1990). Additionally, it protects the government entity

employer from vicarious liability for actions that are entitled

to immunity Wiederholt v. City of Minneapolis, 581 N.W.2d,

312, 318 (Minn. 1998). As a general rule, this defense applies

to the duties of law enforcement officers. Johnson, 493

N.W.2d at 42.

Malice is the intentional violation of a known right,

such that an officer acts with malice when the officer willfully

commits an act he or she has reason to believe is unlawful.

State by Beaulieu v. Citv of Mounds View, 51 8 N.W.2d 567,

571-72 (Minn. 1994). This inquiry is usually a question of

fact for the jury. Johnson, 493 N.W.2d at 42. For the reasons

expressed above regarding qualified immunity from the

federal claims, Defendants’ Motion for Summary Judgment

on the state claims is also denied.

IV. CONCLUSION

Based on the foregoing, and all the files, records and

proceedings herein, IT IS HEREBY ORDERED that

Defendants’ Motion for Summary Judgment [Docket No. 37]

is DENIED as to the claims against Defendant Michael A.

Lee, individually, and the wrongul death claim of vicarious

liability against Defendant the City of St. Paul, and is

A-23

GRANTED as to the 42 U.S.C. § 1983 and negligent

retention and supervision claims against Defendant the City

of St. Paul.

BY THE COURT: s/

Date: January 27, 2004 Ann D. Montgomery

UNITED STATES DISTRICT JUDGE

A-24

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 04-1377

Shenita Craighead, et al., *

Appellees, °

* Order Denying Petition for

vs. * Rehearing and for Rehearing

* En Banc

Michael A. Lee, et al., *

Appellants.

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

( 5128-010199)

February 18, 2005

Order Entered at the Direction of the Court

Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

A-25

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Shenita Craighead and Sherell *

Craighead, as Co-Trustees for *

the Heirs and Next-of -Kinof *

Charles Craigheand, Deceased, * Appeal from the

* United States

Appellees, * District Court for the

* District of Minnesota

vs. .

Michael A. Lee and °

the City of St. Paul,

Appellants.

JUDGMENT

This appeal from the United States District Court was

submitted on the record of the district court, briefs of the

parties and was argued by counsel.

After consideration, it is hereby ordered and adjudged

that the judgment of the district court in this cause is affirmed

in accordance with the opinion of this Court.

(5172-010199) January 10, 2005

Order Entered in Accordance with Opinion:

Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth

A-26

a JUL 1 1 2005

: No. 04-1695 |_ OFFICE OF THE CLERK |

On the

Supreme Court of the Hnited States

Michael A. Lee,

Petitioner,

Shenita Craighead and Sherell Craighead as

Co-Trustees for the Heirs and Next-of-Kin of

Charles Craighead, Deceased,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RESPONSE IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

GOETZ & ECKLAND, P.A. SCHWEBEL, GOETZ &

Frederick J. Goetz SIEBEN, P.A.

Counsel of Record John C. Goetz

Exposition Hall Sharon L. Van Dyck

at Riverplace 5120 IDS Center

43 Main Street S.E., Suite 400 80 South Eighth Street

- Minneapolis, MN 55414 Minneapolis, MN 55402

(612) 874-1552 (612) 344-0316

Attorneys for Respondent Attorneys for Respondent

Sherell Craighead Shenita Craighead

2085 — Bachman Legal Printing & (612) 339-9518 @ 1-806-715-3582 B Fax (612) 337-8053

QUESTIONS PRESENTED

Is a police officer entitled to summary judgment on

qualified immunity grounds as a matter of law when

the facts alleged by Respondents establish that he shot

and killed a man who posed no immediate threat to

anyone and failed to give a warning before using

deadly force though it was feasible to do so?

TABLE OF CONTENTS

COSES TICONG PRISER EAR ocsicestnrasdiinsscccdecacnscenaes i

TABLE OF CONAN ss ols iS i Ria ii

TABLE OF BUT ais hs sek abcde saccvisksens ce ssncel ili

STATEMENT OF THE CASE. uci oes cssccwvesssssssscacsaces 1

I. Incident Giving Rise to the Case.............. ]

II. ENS EPOBEIMMNE TICIOW 5S Shad eccvinisesci 10

REASONS FOR DENYING THE PETITION............... 14

I. The case involves a classic factual dispute

and not an issue of any constitutional

OUUIINI 56ss cas sas vices soecsieaucewbaasesst 13

Il. The Eighth Circuit’s decision does not create

any conflict between the circuits on any issue

OR IN oi oss sc cs oi scream saeenaeaies 15

Ul. The Eighth Circuit’s decision is faithful to and

in accord with Supreme Court precedent that a

police officer is not entitled to summary

judgment on qualified immunity grounds when

Respondent’s evidence showed that the officer

used deadly force against a victim who was not

posing an immediate threat of death or great

bodily harm to anyone and where it was

feasible for the officer to give a warning before

using deadly force but he failed tu do so.... 17

SU ISIN IUN ES ance pins Cimcn ss sakaiee oak WILT eseanniene Rees 20

TABLE OF AUTHORITIES

Cases

Brosseau v. Haugen,

EAS to, Mts SP TIMID isi chp ss ducdcancohushantacesreschiGosonbahacsinioats 19

Craighead v. Lee,

2004 WL 190290, at p. 4 (D. Minn. 2004) 0.0... 10

Craighead v. Lee,

399 F.3d 954, 958-60 (8th Cir. 2005).11, 12, 13, 14, 16, 18

Gardner v. Buerger,

Be Fe Be CE TFS) iis vessnsccccssinccaidssptecteisocsnstczic 18

Graham vy. Connor,

WE IB AO I oa oksk sda icsss icincaaeiocitcdaaaicsesachies 10, 12

Hope v. Peizer,

SEE EE I hash ia casa cy ddlchaks usted bekptnsadeiwaseavacdamctaiakecs 17

Howerton v. Fletcher,

BES We BEL CO COME, PO) ovis visscescnnanicasasdeasnacapseos 16, 17

Ludwig v. Anderson,

DST Wr OD I hls NPD Ditinnccnisasaseisscgacseacacsgusnisnolaaies 18

McCaslin v. Wilkins,

US Fe 2 0 EOD isisisinntnkcscencabdaastdinpiucinhecctend 18

Ribbey v. Cox,

Ee Se TOW LON CHE, ZOOS sce iidcsascascccasoscasnsacsvbace 18

Saucier v. Katz,

Se lee Bs tastseiestccedcvecsstacidoakccanmmiicnes 10. 12,13

Tennessee v. Garner, 3

ie et SES)» 9} GE epiestanne aren ry errr 10,12, 13, 18, 19, 20

Woolfolk v. Smith,

BE FB FF CI Ce, FO i avississecnctvictncaricacincdeatecactstecne 18

ii}

STATEMENT OF THE CASE

I. Incident Giving kise to the Case.

i. The information dispatched to Michael Lee before he

arrived at 217 North Oxford did not provide any reasonable

basis to believe that Charles Craighead was the suspect in the

earlier shootings that day.

The initial descriptions of the suspect involved in the

two earlier shootings on December 3, 2001, were extremely

vague and limited. A summary of the information dispatched

is as follows:

Incident 1: Shooting at Minnehaha and Victoria

Time Information

* 9:13:01 single shooter in black Blazer, no other

description

® 9:13:28 suspect described as black male

*® 9:14:59 suspect vehicle changed to newer green

Ford Explorer

Incident 2: Shooting at Chatsworth and Iglehart

Time Information

*® 10:20:10 [Dispatcher] “All I had is a Black male

running towards Marshall. I don’t know

if that is the victim or the shooter.”

= 10:20:46 [Dispatcher] “All I have so far is a Black

male and I haven’t had anything

else....Black male running, that’s

towards Marshall. That’s all I have.”

Incident 3: 217 No ford

Time Information

*® 10:23:43 [Dispatcher] “Squads, we got a Black

male with a gun at 217 North Oxford

across from Central High School. We

have somebody on the phene reporting

this. Unknown if it’s one er two parties

with guns.”

The suspect in the earlier incidents was a single black

male. Officer Lee had no reports that the suspect had an

accomplice. St. Paul Police Officer Rob Stanway also

testified that the extent of the suspect description that he had

as he headed toward 217 North Oxford was a single black

male.

2. Information was dispatched to Michael Lee before he

shot Mr. Craighead that the person with the gun, Mr.

Craighead, was not the suspect.

On the morning of December 3, 2001, all

communications from St. Paul Police Department dispatch to

the on-duty officers went out over one radio channel. At

10:24:18 the following information was broadcast to all

officers about the ongoing events at 217 North Oxford:

One of the man (sic) the males took a gun away

from another male....

At 10:24:30, some 12 seconds after the above transmission

began, squad 559, Lee, reports “one down” at 217 North

Oxford.

Z, Lee shot Mr. Craighead though he would have then

known that the person with the gun, Mr. Craighead, was not

the suspect.

Lee took just 3 seconds to shoot Mr. Craighead once

he stepped from his squad. Meredith Price, an eyewitness to

these tragic events, testified that Lee “arrived, got out of the

car, and shot [Craighead]. It was pretty much that quick.”

Ms. Price testified that Lee had been out of his car for only a

few seconds, three, maybe, before he fired.

Another eyewitness, John Doe, was looking out a

window in a house just a few doors down from the shooting.

He also testified that Lee fired his shotgun “very quickly,”

“very, very fast” after he got out of his car. Doe described

how Lee got out of his squad and fired seemingly in a fluid

motion:

The officer got out. It looked like he had a shotgun.

And I heard another shot. And then I seen, you know

— | just seen another shot go off. Not seen. I heard it

and I seen the shot go off.

St. Paul Police Officer Rob Stanway was three to four

car lengths behind Lee’s squad as they were both driving

toward 217 North Oxford. Stanway remained at this distance

as he and Lee stopped their respective squads on Oxford.

Stanway agreed that Lee could only have been stopped for a

matter of a very few seconds when the shooting occurred.

Lee always had his police car radio on. When Lee

was not in his squad, he maintained contact with police

dispatch through his portable communications unit known as

a “pack set.” Lee testified that he would turn his pack set on

by reflex as he exited his squad. His pack set was certainly

on when he reported “one down” at 10:24:30. Lee’s reflexive

turning on his pack set as he gets out of his squad is

consistent with the common practice among St. Paul police

officers to turn their pack sets on as they get out of their

squads.

The above evidence flatly contradicts Lee’s claim that

before he fired he did not hear the broadcast effectively

informing all St. Paul police officers that the “good guy,”

Craighead, was now the one with the gun.

Reasonable inferences from the above facts are:

« Lee was still in his squad at 10:24:18 with the

radio on when dispatch relayed the information

about one man taking the gun from the other.

= If Lee did exit his squad before the broadcast,

which appears very unlikely given the timing of

the events, he had his pack set on and would still

have heard the information before he fired.

4. The circumstances existing at the scene when Lee

arrived did not give him or any reasonable yolice officer

probable cause to believe that Charles Craighead was the

suspect involved in the earlier shootings or any other crime

involving the infliction or threatened infliction of serious

physical harm.

As discussed above, the information about the suspect

in the earlier shootings was very limited and vague. It is

undisputed, however, that only a single black male was a

suspect.

When Lee pulled up in front of 217 North Oxford he

saw two black males involved in a physical tussle in which

they appeared to be pulling back and forth at each other.

Officer Stanway also saw the two men struggling with each

other when he pulled up. Stanway was approximately 50 feet

away from the men and on the same side of Oxford Avenue

as Lee when he arrived. It was obvious to Stanway that the

men were not cooperating with each other.

Based on all the circumstances present when he

arnved, Stanway could not and did not make any assumptions

about which of the two men was in fact the suspect the police

were looking for in connection with the two shootings that

occurred earlier that day. While Stanway assumed one of the

two men was the suspect, he did not know which one.

Officer Stanway acknowledged that at no point could

he tell which of the two men was the “good guy” and which

one was the “bad guy.” Lee also admitted that when he got

out of his squad he did not know who was the “good guy” and

who was the “bad guy.”

3. Officer Lee shot Mr. Craighead even though there was

no reasonable basis to believe that Craighead posed a threat

of death or great bodily harm to Lee or anyone else.

Meredith Price, the proprietor of MAP industries, is in

the business of fixing up older homes. She hired Charles

Craighead to paint the interior of the house at 217 North

Oxford Street in St. Paul. This address is across the street

from the scene where Charles Craighead was killed.

On the morning of December 3, 2001, sometime after

10:00 a.m., Charles and Meredith were meeting in the house

at 217 North Oxford. Joyce McDougle, Mr. Craighead’s life-

partner, was waiting in their car in front of the house.

Charles left the meeting to get some paperwork from

his car so he could prepare an estimate of the cost for the

painting. Ms. Price followed him outside.

Price testified that she then saw an individual who she

did not know walk up to Charles Craighead. She heard

Charles say something to the effect of “don’t pull that piece

on me.” Craighead then grabbed the other man, later

determined to be Carlos Scott, in a bear hug. Craighead

continued to hold Scott in a bear hug as the two men

struggled and shuffled across the street towards a dumpster.

' Lee’s testimony on this point is fraught with contradictions. He goes on

to testify that he beiieved Craighead was the “bad guy,” then

acknowledges that he didn’t know which of the two men was the suspect,

then states that Craighead must have been the suspect, a conclusion he

bases solely on the fact that Craighead was the one holding the gun.

Price watched as Craighead managed to get Scott’s

gun away from him during the struggle. Craighead then held

the gun up over his head away from Scott. Craighead was a

good six inches taller than Scott. He was therefore able to

continue holding the gun up over his head away from Scott

after Lee arrived.

Price never lost sight of the gun before Lee shot. She

testified that Craighead never pointed the gun at or in the

direction of Officer Lee before he fired. Craighead always

held the gun high up over his head pointed towards the sky.

As Price described the scene, when one looked at Craighead

and Scott struggling by the dumpster, their actions were as if

an older taller sibling was holding a toy high above his head

thereby preventing the younger shorter sibling from grabbing

it.

Price’s testimony was unequivocal: Craighead did

nothing to threaten Lee or anyone else. Price never felt

threatened though she was just across the street from

Craighead and Scott, almost directly behind Officer Lee.

John Doe’s testimony also establishes that Craighead

never posed a threat to Lee or anyone else. Doe was standing

10 to 15 feet away on Oxford when he saw Carlos Scott

tussling with an older gentleman by a red car. The older man,

Craighead, was taller than Scott.

Doe saw the two men struggling over Scott’s gun. The

tussle began by the red car and then continued across the

street by a dumpster. Doe heard the gun go off at which point

he went in the house at 1044 Marshall.

Once inside the house Doe watched the events unfold

from a window that looked out upon the scene. Doe saw Lee

pull up. From his vantage point Doe had a clear view of the

dumpster area and the officer with the shotgun.

It_was evident to Doe that Craighead was trying to

stop whatever was going on. Doe never saw Craighead point

a gun in Lee’s direction.

Joyce McDougle gives a similar account to that of

Price and Doe. She saw Craighead wrestle the gun away

from Scott. Craighead continued to hold the gun in his hand

as Scott tried to take it back from him. Craighead was taller

than Scott. Craighead held the gun up in the air — pointed up

in the air. Scott was jumping up trying to get the gun. He

could not get it because Craighead was taller.

The gun was always pointed up in the air. Craighead

never pointed the gun at Lee.

Officer Stanway also testified that he did not see

Craighead point the gun at Lee. Stanway testified that

Craighead did not point the gun at him or at Scott. Stanway

could not tell what the man holding the gun was attempting to

do. Considering the totality of the then existing

circumstances, Stanway testified that he did not have any

reason to discharge his firearm.

Lee did not claim that he shot Craighead solely

because he believed he was the suspect from the earlier

shootings. Contradicting the arguments of his counsel, Lee

claims that certain supposed actions by Craighead gave him

reason to fear for his life and therefore fire his shotgun.

According to Lee’s testimony, the basis for his claimed

justification for the use of deadly force is that after Lee told

Craighead to put down the gun, Craighead set the gun in the

dumpster then, after two seconds or so, Craighead picked the

gun back up, pointed it directly at Lee, pointed it directly at

Scott, then pointed it directly at Lee again, at which point Lee

fired. Lee testified that he did not fear for his life until after

these supposed actions occurred.

Whether Craighead did or did not put down the gun,

did or did not pick it up again, and did or did not then point it

at Lee are all material facts in controversy in this case. Price

testified that Craighead never put the gun down and picked it

up again. Officer Stanway testified that he did not see

Craighead put the gun down before Lee fired. Stanway also

did not see Craighead pick the gun up again. According to

Stanway, the gun was always in the hand of the man who held

it until Lee fired.

6. Lee failed to give any warning before he resorted to

deadly force though it was feasible to do so.

Whether Lee did or did not give any warning before

he used deadly force is another controverted fact in this case.

Lee claims he did. He testified he yelled to Craighead:

“...police, drop the gun, drop the gun, drop the gun, loud. I

screamed it. I was clear.”

Price testified that Lee did not say anything before he

fired. She testified that she did not see or hear Lee yell

anything before he killed Craighead.

McDougle also testified that Lee never said anything

before he killed her life partner. Lee just pulled up real fast,

jumped out of his car, and “just shot.” Doe also testified that

he never heard the officer say or yell anything before he fired.

Officer Stanway also testified that he did not hear Lee shout

any instructions before he opened fire.

7. Respondents’ Experts.

Respondents had the circumstances of this case

reviewed by two experienced and highly qualified police

practices experts, both of whom agree that no reasonable

police officer would have believed it was lawful to shoot

Craighead as Lee did.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.