# Petition for Writ of Certiorari — Lee v. Craighead

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 957

## Text

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,
v.

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.

il

TABLE OF CONTENTS

NITE rT cc tansesnessoubdoeinehbedeesianndadanel i
PARTIES TO THE PROCEEDING AND STATEMENT
IES St IIE BID ss oniuniis dates usndbcnteeneisebabsiaiaiianniiiadeusas li
Ee TEs ccsncesccsnasessesadaitincninbsanentbibesessussoniis ill
ETE SUPE RTO cicosessnshenssesntnnssavedecennnisncemancsyi iv
Ne ae eee es ene Vii
EE oe a Cae l
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

iv

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

vi

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.

l

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-

2

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.

3

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!”

4

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

5

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

6

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

7

(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

8

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

9

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.”).

10

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.

1]

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

13

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

14

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

15

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

16

i
i
.

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

17

|

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:

18

ET

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

19

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

20

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,

21

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

22

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.

23

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

24

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
*
ot
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.

I.

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

A-9

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

A-11

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.

A-14

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
s/

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:
s/

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,

V.

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

i

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

2

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.

3

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.

4

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.

5

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1050%3A1. Public record. Not legal advice.