LDF Faces U.S. Supreme Court on a Fatal San Francisco Police Shooting

Posted on Thursday, December 01, 2011 at 12:00PM
Posted by Mike Rains

The Plaintiffs in this civil rights action were survivors of Asa Sullivan, who was shot and killed by San Francisco police officers on June 6, 2006. The individual officers who had shot Sullivan sought to be dismissed from the lawsuit on a grant of qualified immunity, which was denied by the Federal District Court Judge in San Francisco. The officers appealed the denial of qualified immunity to the Ninth Circuit Court of Appeal.

The Ninth Circuit upheld the District Court’s ruling denying summary judgment to the individual officers based on qualified immunity, because the Court found there were “genuine issues of fact regarding whether the officers violated Asa Sullivan’s Fourth Amendment Rights.” The Ninth Circuit further held that “those unresolved issues of fact are also material to a proper determination of the reasonableness of the officers’ belief in the legality of their actions.”

The officers thereafter filed a Petition for Certiorari in the Supreme Court of the United States, asking that Court to review and overturn the decisions of both the District Court and the Ninth Circuit. The facts of the case and the rulings of the lower courts were brought to the attention of the PORAC Legal Defense Fund and its Board of Trustees, who recognized the importance of this decision to all California law enforcement officers and sought to intervene in the matter, along with the San Francisco Police Officers’ Association, by filing an Amicus Curiae Brief in the United States Supreme Court.

Attorney Lara Cullinane-Smith and I were given the great honor of representing the PORAC Legal Defense Fund and the San Francisco Police Officers’ Association by filing the Amicus Curiae Brief in the United States Supreme Court. It is our belief that if the decision of the lower courts is allowed to stand, police officers throughout California will be placed in a perilous legal position if they draw and point their firearm at suspects when they reasonably fear the suspect may be armed, or when they fire their weapons at a suspect who engages in conduct and/or speech causing officers to believe the suspect poses a threat of death or great bodily injury.

Facts of the Case

On June 6, 2006, San Francisco police officers were sent to an apartment building after a caller reported that the front door of an apartment was swinging open and that the unit might be a “drug house.” Officer Paul Morgado, who arrived initially, was told by a security guard that the front door lock was not an approved lock installed by the landlord. Officer Morgado pushed on the door with minimal force, causing the door to open and allowing Morgado to observe a bloody shirt hanging on an interior door. Moments later, Morgado and two other San Francisco police officers entered the apartment to determine if there were occupants inside and to determine if someone was injured.

On the second floor of the apartment the officers located and handcuffed a young man with a 4-inch “Ninja” style knife. As the officers were handcuffing that individual, they heard movement above them in what later was determined to be an attic.

When the officers entered the dark attic, an individual named Asa Sullivan was crouched between two exposed beams and partially covered in insulation. The officers displayed their firearms and ordered Sullivan to show his hands but he refused.

Over the next several minutes, Sullivan made statements such as, “Kill me or I’ll kill you,” and “Are you ready to shoot me?” After numerous attempts to coax Sullivan to show his hands and to come out of the attic, the officers saw Sullivan, who had a “weird look” on his face, bring up his right hand while holding a dark object. As the dark object in his right hand came upward, all the officers heard a “pop” and fired at Sullivan, killing him. It was determined that Sullivan had been holding a dark eyeglass case that he apparently snapped closed, causing the pop. Sullivan did not possess a firearm or other weapon when shot.

Ninth Circuit Decision

The Ninth Circuit Court of Appeals rejected the request, filed by the officers who entered the apartment and who subsequently shot and killed Sullivan, for dismissal from the civil action based on the doctrine of “qualified immunity.” The Appellate Court found that a reasonable jury could determine that the officers illegally entered the apartment either intentionally or recklessly, and essentially “provoked” the confrontation with and shooting of Sullivan. Denying qualified immunity for the shooting of Sullivan, the Ninth Circuit found that the suspect was later determined to be unarmed and the officers did not know with certainty what the dark object was in Sullivan’s hands before they fired. The Ninth Circuit’s decision essentially held that when officers intentionally or recklessly enter a residence illegally, their authority to use reasonable force against a suspect they encounter is eliminated.

Why the Ninth Circuit Was Wrong in Refusing to Dismiss the Individual Officers Based on Qualified Immunity

The qualified immunity analysis has two steps: First, the Court determines whether there was a constitutional violation at all. If the officers’ actions did not cause a constitutional violation, the officers and their employer are entitled to dismissal.

Even if the officers committed a constitutional violation, the Court goes to the second step of the analysis and determines whether the law regulating the officers’ conduct was clearly established at the time of the incident, an analysis which must be considered in light of the specific facts of the individual case.

The United States Supreme Court, in a case entitled Saucier v. Katz, 533 U.S. 194, 201, 205 (2001), has made it clear that officers who make a reasonable mistake of the state of the law pertaining to the facts of a particular case will not be subjected to liability. Under the doctrine of qualified immunity, officers are not liable for mistakes in judgment, whether they result from mistakes of law, fact or application of the law to the facts of a particular situation (Butz v. Economou, 438 U.S. 478, 507 (1978)).

Our Arguments to the Supreme Court

In our Amicus Brief, we pointed out that California peace officers are among the most highly trained law enforcement officers in the nation. This is particularly true concerning the legal justification to use lethal force. We emphasized that, prior to this decision, California law enforcement officers knew and understood, from training they received, that the Ninth Circuit, in a previous decision entitled Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) had disfavored court decisions that would “induce … tentativeness by officers and thus deter police from protecting the public and themselves … and which would … also entangle the courts in the second guessing of police decisions under stress and subject to the exigencies of the moment.”

We reminded the Supreme Court of the reluctance of our courts (prior to this decision) to “second guess” decision making of police officers under the precise circumstances of this case:

“… Under Graham (v. Connor) we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face everyday. What constitutes ‘reasonable’ action may seem quite different to someone facing a possible assailant and to someone analyzing the question at leisure.” (Martinez v. County of Los Angles, 47 Cal.App. 4th 334 (1996))

After pointing out that this decision essentially contravenes previous decisions that caution against the “Monday Morning Quarterbacking” by courts, we pointed out the flawed analysis of the Ninth Circuit and the likely result of its decision if it is allowed to stand.

First, the court erred in determining that, since Officer Morgado initially and allegedly illegally forced opened the door to the apartment, all of the San Francisco police officers, including those who arrived shortly after, were liable for “provoking” the confrontation with and shooting of Sullivan. We pointed out that the court’s holding improperly imputed knowledge to Sullivan, which he likely did not have, i.e., that he was “provoked” to flee from the police and later to threaten them after realizing they had entered his apartment illegally. We pointed out that the legal issue concerning the initial entry into the apartment was such a “close and esoteric question” that reasonable police officers and reasonable courts could differ on this issue, and there was no evidence whatsoever that Sullivan, during his subsequent confrontation with police, accused them of illegally entering the apartment or requested them to leave.

We also pointed out that the Ninth Circuit, by issuing this decision, has effectively changed the law concerning when officers can draw and point weapons at suspects by denying the officers qualified immunity for pointing their weapons at a non-compliant suspect who was later determined to be unarmed. By doing so, the Ninth Circuit departed from its previous holding in Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003) that “from the viewpoint of an officer confronting a dangerous suspect, a potential arrestee who is neither physically subdued nor compliantly yielding remains capable of generating surprise, aggression, and death.” The decision also ignores the holding of a Seventh Circuit case, entitled Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009), in which the court stated “while police are not entitled to point their guns at citizens when there is no hint of danger they are allowed to do so when there is reason to fear danger.”

Finally, we argued that the Ninth Circuit misapplied the law regarding the right of officers to use lethal force by observing that the officers had not positively identified the dark object in Sullivan’s hand as a firearm before firing, and concluding after the fact that Sullivan was unarmed. We pointed out that such a determination ignored a multitude of countervailing facts:

  1. Sullivan had fled the officers;
  2. It was in a dwelling where a weapon had already been found;
  3. He was purposely concealing himself;
  4. He was non-compliant with orders to show his hands;
  5. He had made statements to the police such as, “Kill me or I’ll kill you” and “Are you ready to shoot me?”;
  6. And he rapidly moved his hand and arm while holding the dark oblong object that made a “pop” noise that sounded like a gun shot in a small enclosed space.

We asked the court to consider and follow decisions in Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir. 2001), where the court held that officers were “not constitutionally required to wait until [they] set eyes upon the weapon before employing deadly force,” and Lamont v. New Jersey, 637 F.3d 177, 183 (3rd Cir. 2011), in which the court emphasized that “police officers do not enter into a suicide pact when they take an oath to uphold the Constitution.”


It is our sincere belief that the Ninth Circuit has departed from its own previous legal precedent in denying the officers qualified immunity relating to the initial entry into the apartment, their pointing of weapons at Sullivan and their ultimate decision to fire those weapons. The net effect of the court’s erroneous holding will most assuredly result in officers being tentative in decisions to draw and point their weapons at possible assailants in the first place and will preclude an officer from receiving a grant of qualified immunity in a civil suit where the officer cannot say with certainty that the object in a suspect’s hands that was suddenly raised and pointed at the officer or others was known to be a firearm.

It will be a great honor for me to represent the PORAC Legal Defense Fund and all of its members and the outstanding officers from the San Francisco Police Department in making these and other arguments before the United States Supreme Court. We are enthusiastic that the Court will grant certiorari and invite our appearance.

ABOUT THE AUTHOR: Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has more than 25 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.

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