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
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
The Ninth U.S.
Circuit Court of Appeals in San Francisco upheld
a federal judge's refusal to dismiss the suit and said a jury
should hear the case.
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.
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.
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
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.
would he hide from them if he wanted to commit suicide?" Chanin
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.