(CN) – An off-duty St. Louis Park, Minn., police officer who shot and killed an unarmed, intoxicated former-Marine who had been celebrating a friend’s birthday, is not eligible for a summary judgment and will stand trial, a federal judge ruled.
According to the opinion written by U.S. District Judge Ann D. Montgomery, former Marine Jason Martin and his friend Karl Foster were leaving the casino they had been celebrating Foster’s birthday at about 2:20 a.m. on the night November 2009 night the shooting occurred.
Foster had taken the wheel of Martin’s truck because the latter had been drinking, but he missed the highway entrance ramp that would have led them home, and pulled into a nearby parking lot to turn around.
While in the lot, an orange traffic cone became lodged under the truck and Foster pulled onto a side street to attempt to dislodge it. After parking, Foster climbed under the truck and continued to remove the cone, which was stuck on the front axle.
According to the opinion, it was while Foster and Martin were still in the parking lot that defendant Officer John Herman first saw the truck and deemed its off-hours presence suspicious.
Herman would later say he observed the truck drive over a folding metal construction barrier and sparks coming out from under the truck as it exited the lot.
Herman’s decision to investigate led to “an encounter which lasted only minutes but which ended with one of the men dead from two gunshot wounds to the chest,” Montgomery wrote.
What happened next is uncertain, as Foster and Herman’s accounts are at odds. The officer claims that Martin approached him confrontationally, repeatedly telling him he did not need to be there.
Herman said he identified himself as an officer and clearly showed his badge to Martin, who said “you ain’t no cop” and “I’m a United States Marine and you owe me respect,” before becoming extremely agitated and punching Herman in the side of the head multiple times.
The officer said he repeatedly told Martin to “back off” while keeping his right hand outstretched and his left hand over his gun. He claimed that he was attempting to back his car away, when Martin issued one last punch that caused to see stars and his knees to buckle.
Herman said at this point Martin reached for his service revolver and he believed the inebriated man intended to kill him. It was only then, he said, that he fired the deadly shots.
Foster, who was under the truck at the beginning of the altercation, said he never heard Herman issue any commands as he ran toward the two men yelling “stop,” the opinion continues.
Foster said as he approached, Martin and the officer threw “a few body punches” at each other. But he flatly denied seeing the blow that Herman said caused him to upholster his gun and fire. Foster described that event as wholly unexpected.
As he ran to his friend’s side, Foster said, Herman called 911 and stated, “he started attacking me. He hit be four times.”
Montgomery noted that it is uncontested that during this 911 call, Herman never mentioned that Martin had grabbed for his gun. Three other officers responded to the scene and placed Foster in a squad car.
It was then that Herman told one of the officers that Martin had grabbed at his gun. Martin died at the scene. Montgomery wrote that it is uncontested that he was unarmed.
Martin’s fingerprints were not found on the officer’s gun, and his holster was never fingerprinted. Herman was not criminally charged in connection with the shooting, but Martin’s heirs brought suit.
Because of these varying accounts, Montgomery found that the conditions necessary for qualified immunity for a police officer, and therefore a summary judgment, were not met.
More specifically, Montgomery considered whether Herman violated Martin’s constitutional rights by exposing him to deadly force without a clear warning, something Herman said he did not have time to issue.
“Because of the lack of a warning, the admitted feasibility of a clear warning, and the disputed nature of the events preceding the use of deadly force, Officer Herman is not entitled to qualified immunity and summary judgment is improper,” Montgomery wrote.
The Judge also weighed whether the constitutional rights in question were clearly established.
“Here, the right of Martin to be free from excessive force was a clearly established right, and no reasonable officer in Officer Herman’s position would have had sufficient probable cause to believe that Martin posed a threat of serious physical harm to him or to others,” Montgomery wrote. “No crime had occurred, Martin was unarmed, and the scuffle between Officer Herman and Martin did not threaten serious physical harm.”
The Judge adds that the analysis must also be performed in a light favorable to the plaintiff and that, using that legal standard, “a reasonably jury could find that Officer Herman committed a malicious wrong, and therefore he is not entitled to official immunity.”