(03-09) 16:38 PST SAN FRANCISCO -- The family of an unarmed man who was shot to death by San Francisco police in the attic of an apartment can go to trial in a suit accusing the officers of illegal
entry and excessive force, a federal appeals court ruled Tuesday.
Asa Sullivan, 25, was killed by a barrage of gunfire in June 2006 in the dark attic of a Villas Parkmerced townhouse near Lake Merced. Officers had entered the apartment without a warrant based on a neighbor's report of possible drug activity, found Sullivan in the attic, and said they had shot him when he appeared to reach for a gun.
Lawyers for Sullivan's mother and 6-year-old son accused police of falsely claiming that he had been holding a dark object - an eyeglasses case - and had told officers he was prepared to die rather than go back to jail.
The Ninth U.S. Circuit Court of Appeals in San Francisco upheld a federal
refusal to dismiss the suit and said a jury should hear the case.
"Sullivan had not been accused of any crime," Judge Procter Hug said in the 2-1 ruling. "He had not initially caused this situation. He had not brandished a weapon, spoken of a weapon, or threatened to use a weapon," and there are "genuine issues of fact" about whether police used unreasonable force, Hug said.
City Attorney Dennis Herrera's office, which represents the three officers named in the lawsuit and the city, is considering a possible further appeal to the full Ninth Circuit or the Supreme Court, said spokesman Matt Dorsey.
The court majority "did not consider facts about what Mr. Sullivan did to threaten the police officers, which is the reason force was used," Dorsey said.
Sullivan was living in the apartment with the tenant's permission, the court said. Police said
they had learned afterward that he spent nine months in jail for a 1999 robbery conviction.
The court said the first officer at the apartment, Paul Morgado, had pushed the front door open and had seen a bloody shirt hanging inside. Officers John Keesor and Michelle Alvis followed him.
They kicked open a locked bedroom door on the second floor, handcuffed the resident and found a knife near him. They then heard noises from the attic and went upstairs.
They said they had shone their flashlights on Sullivan, who refused to cooperate, kept one of his hands concealed and told them to "kill me or I'll kill you."
Keesor and Alvis said they had opened fire after seeing Sullivan hold a dark object and make a sudden move with his arm.
The officers said afterward that they had found an eyeglasses case under Sullivan's arm. But Julie Houk, a lawyer for the family, said an officer had initially reported finding the case in Sullivan's jacket pocket, and had changed the story later to justify the shooting.
Police accounts of Sullivan's statements, to support a theory of "suicide by cop," were equally questionable, said James Chanin, another lawyer for the family. "Why would he hide from them if he wanted to commit suicide?" Chanin said.
The court majority said the central issues in the case - whether police had evidence of an emergency that justified their entry into the apartment, and whether they had reason to believe Sullivan posed a threat - required a jury trial to sort out.
In dissent, George Wu, a federal judge from Los Angeles temporarily assigned to the panel, said police had acted reasonably when confronted with an
uncooperative, possibly armed man who "would have ... survived the encounter" if he had complied with their orders.