The 8th Circuit U.S. Court of Appeals today affirmed a lower court ruling that two Little Rock police officers are not immune from lawsuit in the shooting of Eugene Ellison, 67, in his apartment at a complex where the officers were providing private security.
Donna Lesher and Tabitha McCrillis had argued the suit against them should be dismissed because they acted lawfully when Ellison was shot by Lesher when he objected to their entry to his apartment to check on his well-being.
The 8th Circuit upheld the finding that both officers did not have immunity for entry to his apartment and for unreasonable use of force by Lesher. The 8th Circuit did hold that Lesher was entitled to qualified immunity for use of nonlethal force inside Ellison’s apartment and that McCrillis was entitled to immunity on all of the count pertaining to use of force.
The unanimous three-judge ruling, affirming the lower court’s denial of summary judgment in favor of the officers, means the case can go to trial on the remaining allegations against the two officers over Ellison’s killing in December 2010. The claim for immunity can be renewed at trial.
The 8th Circuit noted:
On the claim that the officers unlawfully entered Ellison’s apartment, the district court reasoned as follows: “Viewing the facts in the light most favorable to Ellison, it cannot be concluded as a matter of law that an objectively reasonable basis existed for the officers to believe that they needed to enter the apartment because
Ellison or someone else within the apartment needed immediate aid.” The district court also said “[i]t is clear that entering a home without a warrant, absent consent or exigent circumstances, violates a clearly established right.”
On the use of force, the opinion said:
On the claim that Lesher used excessive force when she shot and killed Ellison, the district court concluded:
Simply put, the facts, when viewed in the light most favorable to Ellison, indicate that Ellison, a 67 year old man, was standing in his own home when he was killed by Lesher, after she and McCrillis unlawfully entered his apartment and ignored his requests for them to leave. Although he was refusing to lie on the ground as the officers directed, the four officers, two male and two female, did not try to physically subdue him and it is undisputed that he was making no attempt to flee. Lesher also never warned him that she had a gun and would shoot if he did not drop his cane. As a result, a reasonable jury could find that Lesher used deadly force against a person who did not pose an immediate threat of serious physical injury or death to them.
The district court further ruled that Lesher was not entitled to qualified immunity, because “existing case law made it sufficiently clear to a reasonable officer that a suspect cannot be apprehended by use of deadly force unless that individual poses a threat of serious physical harm.”
The case has dimensions beyond the killing of Ellison, father of one former and one current Little Rock police officer. It’s part of several cases in which attorneys Michael Laux and Flint Taylor have asked the Justice Department to consider as part of a pattern and practice of excessive use of force by Little Rock police.
PS — The city’s defense in this case gives a little insight into police attitutdes that Laux noted in identifying his favorite line in the opinion, a response to the officers’ claim that Ellison had gotten “mouthy.”
“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.”
Laux said he hopes to see the case go to trial within the next six months.
UPDATE: Judge Brian Miller has set the trial for Nov. 2.