Police Officers Who Shot And Killed An Unarmed Man Are Not Entitled To Qualified Immunity Because Questions Of Fact Exist Regarding Whether They Violated Fourth Amendment Rights

In Espinosa v. City and County of San Francisco, (— F.3d —-, C.A.9 (Cal.), March 9, 2010), the United States Court of Appeal considered whether police officers were entitled to qualified immunity for alleged Fourth Amendment violations after the police officers shot and killed an unarmed man during a warrantless search of an apartment.

The court ruled that the officers were not entitled to immunity because questions of fact existed about whether their actions violated the man’s Fourth Amendment rights.


In 2006, three San Francisco police officers – Paulo Morgado, Michelle Alvis, and John Keesor entered an apartment after a neighbor phoned police to report that the door was open and a drug deal may have been occurring inside. The officers arrived to find the door closed, but pushed it open and entered the apartment. Finding a locked bedroom door inside, they kicked it open, found resident Jason Martin inside, handcuffed him, searched him and found a knife. Hearing noises coming from the attic, the officers entered it with their guns drawn, and found Asa Sullivan hiding inside. They ordered Sullivan to raise his hands, but he did not comply. Officers Keesor and Alvis then fired their guns at Sullivan, killing him. They claimed they thought they saw an object resembling a gun in his hand, and that he had moved his arm as if to shoot. Sullivan, however, was unarmed.

Sullivan’s survivors, including Kathleen Espinosa, brought suit in federal district court alleging that the officers violated Sullivan’s fourth amendment rights by entering and searching the apartment, using unreasonable force, and provoking a confrontation. The officers moved for summary judgment based on qualified immunity. The district court denied their motion, and the officers appealed.


To determine whether the officers could claim qualified immunity, the court said it must determine whether the officers’ conduct violated a constitutional right, and whether the right was clearly established at the time of the violation. A right is clearly established if a reasonable officer would clearly know that his conduct was unlawful in the situation he confronted, the court added, quoting Headwaters Forest Defense v. County of Humboldt, 276 F.3rd 1125 (9th Cir. 2002).

In this case, the appellate court determined the district court properly denied the officers’ motion for summary judgment because there are genuine issues of fact regarding whether the officers’ conduct violated Sullivan’s rights.

First, the court said, a warrantless search such as this one violates the Fourth Amendment unless an exception such as emergency, exigency, or consent exists. The officers failed to demonstrate that any of those exceptions existed. The officers had no reasonable ground to believe that an emergency threatening anyone’s life or safety existed, nor was there an exigency that a crime was being committed and that entry was necessary to prevent an escape or the destruction of evidence. Additionally, no one at the apartment consented to the search.

There were also questions of fact regarding whether the officers used unreasonable force when they shot Sullivan. Shooting Sullivan was clearly using a high level of force, Sullivan had not been accused of a crime, he had no means to escape from the attic, and no evidence suggested that he posed a threat to the public. Questions of fact also remained about whether the officers provoked a confrontation by entering the apartment without a warrant and drawing and firing their weapons.
The court concluded that because the officers failed to show, as a matter of law, that they did not violate Sullivan’s Fourth Amendment rights, the district court properly denied their motion for summary judgment. The judgment was affirmed.


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