Cops Who Shot ‘Mouthy’ Senior Denied Immunity

(CN) - Police had no right to enter a "mouthy" old man's apartment without a warrant, where they started a physical altercation, shot and killed him, the Eighth Circuit ruled.

Officer Donna Lesher and detective Tabitha McCrillis had been working off-duty as security on Dec. 9, 2010, when they were patrolling the Big Country Chateau apartments in Little Rock, Ark.

Noting an open apartment door, they peered in and saw 67-year-old Eugene Ellison sitting on his couch and leaning on his cane. They testified that the apartment was disheveled, and Ellison was sitting behind a broken glass table.

Lesher and McCrillis asked Ellison if he was OK, and received a vague answer - "What does it look like?" Telling the officers he did not want their help, Ellison said to leave him alone.

McCrillis thought Ellison was being "mouthy" with her, walked into the apartment, and asked Ellison what was his problem, according to court records.

Ellison stood up and approached the officers. Then McCrillis shoved Ellison, Ellison pushed her back, and a physical altercation began. The officers repeatedly struck Ellison, knocking off his glasses, while he repeatedly told them to get out of his apartment.

Though the officers commanded him to lie down on the ground, Ellison refused and at some point reached for his cane. Lesher then fired two shots, killing the old man.

The Eighth Circuit in St. Louis affirmed Thursday that Lesher and McCrillis are not entitled to immunity for their actions.

"The Fourth Amendment generally requires a warrant before police may enter a residence, and while there are exceptions to the warrant requirement in exceptional situations, 'mouthiness' of a resident is not one of them," Judge Steven Colloton wrote for a three-judge panel.

Discrepant testimony from the police officers does not clearly support Lesher's claim that Ellison charged at her swinging his cage, the court found.

"If Lesher shot Ellison while he was simply standing in his apartment and holding no cane, then there were not reasonable grounds to believe that Ellison posed a serious threat of death or serious physical injury to the officers or others," Colloton said.

"Ellison's refusal of a command to lie down on the floor did not, by itself, make reasonable the use of deadly force."

At this stage, the court must view the evidence in the light most favorable to the plaintiff.

It is a jury's role to evaluate the evidence the officers can present at trial to support their version of events, the opinion notes.

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