Cops remain in lawsuit over 2017 rooftop shooting of unarmed man

Even body camera video doesn’t settle the question of whether qualified immunity should insulate two Milwaukee police officers from a lawsuit by the unarmed man they shot on a rooftop in 2017, a federal appeals court has ruled.

In a 2-1 decision, a panel of the 7th U.S. Circuit Court of Appeals concluded it has no jurisdiction to decide the city’s claim that a judge erred when he declined to dismiss Jerry Smith Jr.’s civil rights lawsuit against the officers

In dissent, Chief U.S. Circuit Judge Diane Sykes said there really is no factual dispute, and that the court should have reversed and granted the officers’ qualified immunity, thereby ending the lawsuit before trial.

In August 2017, police had responded to a call of someone with a gun near N 29th and Wells streets. Smith, 19, at the time, fled from the officers as they approached to try and talk to him. One of the officers thought he saw a gunshaped object in Smith’s pants, and that Smith was trying to secure it as he ran.

The officers found Smith on a nearby garage roof, where he had hidden behind an air conditioning unit, and engaged him verbally from the top of some stairs for several minutes. Meanwhile, two other officers arrived — Adam Stahl and Melvin Finkley — who climbed up onto the roof and ten seconds later each shot Smith.

Smith said he was surrendering. The officers said they thought Smith was reaching for a gun behind the AC unit. He did not have a gun, and none was found elsewhere on the roof.

Smith sued in 2018. The city tried to have the suit dismissed. But U.S. District Judge Lynn Adelman ruled the officers’ actions were not reasonable, given they were told by colleagues already on the scene that Smith did not have a gun in his hand, and that Stahl’s body camera shows Smith’s hands were both empty when Stahl says he believed Smith had a gun.

Adelman also found the officers were not entitled to qualified immunity because a jury could reasonably find — based on information obtained through discovery in the case so far — that neither officer had probable cause to believe they were in imminent danger from Smith.

The city appealed Adelman’s ruling on qualified immunity.

The appellate court majority said it can only review pure questions of law at this stage in a case, not questions that mix law and fact, and that factual questions are too entwined with whether qualified immunity should protect the officers.

Qualified immunity saves police from lawsuits that might amount to interference with their duties, and from liability for reasonable mistakes. But if their actions violate a clearly-established constitutional right — such as the right not to be subjected to excessive force by police as you try to surrender — qualified immunity may not apply.

The majority found that, while Smith’s flight, the officers’ belief he had a gun, and his earlier refusal to follow orders from the first officers on the scene, and the tension of the situation all weighed in the officers’ favor, Smith’s actions in the last four seconds of the encounter leave two key questions unsettled -- how to characterize Smith’s movement to the ground and whether he was an imminent threat to Stahl and Finkley.

“If we were to resolve these factual disputes, we could be evaluating the quantity and quality of proof, not ruling on an abstract legal question,” U.S. Circuit Judge Michael Brennan wrote for the majority, joined by U.S. Circuit Judge Amy St. Eve.

Sykes believed someone denied dismissal on qualified immunity can always appeal that decision before the merits of a case are resolved, and that it is indeed a legal question, even if some underlying facts remain in dispute.

But Sykes’ opinion notes that the officers’ body cam video preserved the historical facts, which she characterized as “not disputed.” Both Finkley and Stahl admit shooting Smith, but argue it was a lawful response, or that a reasonable officer would not have clearly understood that it was unconstitutional to use deadly force in those circumstances.

“Would every reasonable officer have recognized that using lethal force was unlawful in this specific situation? That’s the core qualified-immunity inquiry, and it is a legal question for the court,” Sykes wrote.