Can police officers fire at a person after calling them several times, not announcing their presence to a person walking out of their house and then shooting them in the leg? And, after those actions have claims against them dismissed?
Not so, according to a majority of 10th Circuit Court of Appeals judges who reversed the lower court dismissal of claims against the officers and remanded it to lower court. But, there was dissent from Chief Judge Timothy Tymkovich.
In a panel consisting of Judges Harris Hartz, Gregory Phillips and Tymkovich, a majority reached a conclusion that in the case St. George v. City of Lakewood, police officers used unusual methods to contact a person accused of having engaged a prostitute and fired a gun in a somewhat-threatening way.
“The shooting culminated a bizarre late-night police investigation involving Trimmer, LPD Sergeant Jason Maines (another defendant), and two other LPD officers,” according to the opinion.
The case started one evening back in 2016, when St. George browsed a website known for advertising prostitutes and sex workers. He ordered an escort, who arrived around 9 p.m., and he placed the agreed $220 service fee for an hour on a counter. The escort took the money, but after about a half-hour, she announced that she was leaving.
Demanding his money back, but not grabbing or restraining her, St. George who allegedly was afraid of being robbed, or harmed by a pimp or bouncer, took a handgun from his pants on the floor and pursued the escort, according to the order adopting a magistrate’s recommendation.
Reaching her vehicle, the escort confronted St. George with a can of mace and St. George raised his gun into the air and fired — allegedly as a warning. The order described that St. George aimed the weapon at the escort but didn’t fire. She left, and St. George went out for dinner and drinks.
About 20 minutes after the gunshots, the escort contacted the LPD about the incident and officers headed to St. George’s home. Two of the defendants, Agent Devon Trimmer and Sgt. Jason Maines, were on site when St. George came home from dinner.
After this point, multiple phone calls were placed between St. George and the LPD, sometimes being answered and other times not. According to the 10th Circuit opinion, officers called him six times in 15 minutes instructing him to exit his apartment and speak with them in his yard.
“Yet on the three occasions that he emerged, the officers hid from view and failed to identify themselves,” according to the opinion. The first two times that St. George walked out of his home he was unarmed. However, on the third time he came out with a weapon.
St. George allegedly believed that someone was impersonating the police to lure him out for an attack. Sometime later, St. George went out of his house with a shotgun in hand, pumped it, and the officers announced over the radio that he was armed, according to the order.
According to the opinion, on the fourth phone call it was apparent that St. George didn’t believe the callers were police officers.
Eventually, after moving around the house, St. George came into view of Trimmer. St. George and his shotgun in front of him, and Trimmer opened fire hitting St. George in the leg, according to the motion. Apparently, Trimmer fired “without a prior word,” according to the opinion.
Multiple shots were fired by both St. George and police, and eventually St. George returned to his house where he called 911. By 1 a.m., St. George was in custody and formally arrested, then taken to a hospital.
At the time of the incident, however, police didn’t have any warrant for St. George’s arrest.
St. George filed suit in the district court, raising several state-law claims and claims that his Fourth Amendment rights were violated because Trimmer used excessive force in shooting him and Maines failed to prevent the shooting. The district court granted a motion to dismiss based on the ground that the complaint failed to state an excessive-force claim. He appealed to the 10th Circuit.
The panel saw it as their duty to determine whether, from the perspective of a reasonable officer on scene, the total circumstances justified the use of force. In the highly “fact-dependent inquiry” the panel had to balance the nature and quality of intrusion on St. George’s Fourth Amendment interests against the governmental interests at stake.
In the case Graham v. Connor, the U.S. Supreme Court said that proper application of a reasonableness test for use-of-force requires considering the severity of the crime; if the suspect posed an immediate threats to safety of others and officers; and whether the person is actively resisting arrest or attempting to evade arrest by flight.
While the severity of the crime tilted in favor of the officers, the opinion states that both officers were investigating a report of two offenses committed by St. George: unlawful sexual contact and attempted murder, due to his firing two shots.
However, when looking at evading arrest by flight or resisting arrest the scale tips toward St. George. The opinion states that the officers had determined before the shooting that they had no basis to arrest St. George. Because the officers refused to identify themselves to St. George, the panel found that caused him to doubt the officers and to “think that his carrying a shotgun when he exited the third time indicated any lack of respect.”
Further review under the Estate of Larsen, compelled the majority to the conclusion that St. George pleaded it was unreasonable for the officers to believe that he posed a grave danger threat to them or anyone else.
The officers never knocked on St. George’s door, the officers didn’t place their vehicles in obvious view and they didn’t contact him anyways except phone calls, according to the opinion.
“Not only did the officers acknowledge that they lacked probable cause to believe that St. George had fired a shot at the escort; but they had no reason to believe that he would refuse to comply with orders from properly identified police officers,” the opinion states.
Concluding that since the officers never identified themselves, the lower court concluded that the facts failed to support the idea that a reasonable officer would have had probable cause to feel threatened by St. George’s actions.
“St. George’s carrying a gun in the low-ready position to protect himself as he walked around his house late at night to see who it was that wanted him to come outside and talk was not a hostile or threatening action,” the opinion states.
Further, according to the opinion, the officers acknowledged that they lacked probable cause to believe that St. George fired a shot at the escort, they had no reason to believe that he would refuse to comply with orders from properly identified police officers, according to the opinion.
“When he did carry a firearm on the third occasion, he had already expressed doubts … that there were officers outside his home who, for inexplicable reasons, would hide and not even verbally identify themselves,” according to the opinion. The opinion also states that St. George’s carrying of the weapon wasn’t threatening and he was “obviously carrying it for protection.”
Further, Trimmer’s shot at St. George came only 21 seconds after she was alerted that he was walking around the building and close to six minutes after he had left his home, according to the opinion.
However, on the topic of Qualified Immunity, a type of legal immunity for public officials from lawsuits alleging violation of a plaintiff’s rights, the officers could’ve been entitled to qualified immunity if the law they violated wasn’t clearly established at the time of the episode. But they didn’t seek affirmance on that ground on appeal.
Specifically, the 10th Circuit stated in the opinion that qualified immunity matters be left to the district court on remand and “we agree that that is the appropriate course to follow.”
“But in light of the officers’ prior failure to identify themselves and Muller’s report to the other officers after the fourth phone call that St. George did not believe that the callers were police officers, it would have been unreasonable of those officers to think that St. George believed that he was dealing with law enforcement,” the opinion states.
In his own dissent, Chief Judge Tymkovich stated that the majority opinion concludes that Agent Trimmer should’ve revealed herself to a hostile suspect with a loaded and racked shotgun before attempting to use force.
“But it is not for judges ‘from the comfort of [their] chambers’ to determine whether an officer’s actions in making a high-pressure, life-threatening and split-second decision were unnecessary or incorrect,” the dissent states.
He disagreed with the majority’s use of the Graham and Larsen cases to weigh in favor of St. George.