Cops Not Immune After Shooting, Circuit Rules

(CN) - San Francisco police officers who fatally shot a man after a warrantless entry into the apartment where he was staying are not immune from charges because they may have "intentionally or recklessly" violated the man's Fourth Amendment rights, the 9th Circuit ruled.

Three San Francisco police officers, the police chief, and the City and County of San Francisco appealed the district court's denial of their request for immunity after the court determined that there were issues regarding whether the officers violated Asa Sullivan's Fourth Amendment rights.

In two opinions, the three-judge appeals panel agreed with the district court and ruled that without a warrant, Sullivan had a reasonable right to privacy since he had not been accused of a crime.

The majority concluded that the officers provoked a confrontation with Sullivan, which led to the use of excessive force. Sullivan was shot at least 25 times at close range, according to the opinion.

After receiving information about possible drug dealing at the apartment where Sullivan was staying, officers showed up and entered the apartment's open door without consent, the opinion states. They searched and found a T-shirt with blood on it and a knife.

The man living in the apartment complied with being handcuffed and put on the floor. When the officers heard Sullivan in the attic, they went up with their guns drawn, according to the opinion.

Sullivan tried to escape through the only door in the attic, and said, "Kill me or I'll kill you," prompting officers to shoot, the opinion states.

The panel ruled that because Sullivan was unarmed and had not caused the situation, he did not pose any danger to the officers or the public.

"There is evidence that the illegal entry created a situation which led to the shooting and required the officers to use force that would have otherwise been reasonable," Judge Procter Hug, Jr., wrote for the San Francisco-based panel.

District Judge George Wu disagreed with the majority's ruling that the officers provoked a confrontation which led to excessive force.

"Although it is not disputed that Sullivan had no firearm to shoot, the question not addressed by the district court is whether (the firing officers) had objectively reasonable beliefs that Sullivan had a gun," Wu wrote.

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