WASHINGTON – A federal appeals court ruled Friday that two Tucson police officers who shot and killed a man as he came at them, snarling and wielding a broken hockey stick, are protected for their actions by qualified immunity.
The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals overturned the U.S. District Court of Arizona, which had said the officers could not claim immunity because they did not have a warrant to enter the apartment where they shot Michael Duncklee.
But the appeals court said that since Duncklee was trespassing in the apartment – the woman he was with had previously been evicted from it – he did not have a Fourth Amendment right against unreasonable search and seizure and the officers were consequently protected.
An attorney representing Duncklee’s mother did not immediately respond to a request for comment on the appellate decision. But Tucson City Attorney Michael Rankin said Friday he was “pleased with the ruling.”
Court records say the case began May 21, 2014, when police got a call from a Tucson apartment complex worker who was worried about trespassers in one of the complex’s vacant apartments. Because the complaint was listed as a low priority, Tucson Officer Allan Meyer was not dispatched until after 11 p.m., almost two hours after the call came in.
Meyer arrived to find both the metal security door of the complex and the door to the apartment unlocked, at which point he backed away and called for support. Officer Robert Soeder arrived 10 minutes later, and the two drew their guns, knocked and announced their presence.
When they got no answer, they entered and made their way through a cluttered apartment, the front room half-full of stacked belongings. The apartment appeared to be empty, except for the sound of a radio coming from behind the closed door of the bedroom.
The officers stood on either side of the door and knocked, guns drawn. When there was no answer, Soeder opened the door.
Meyer, who could see directly through the doorway, said Duncklee charged him, yelling, with a stick aimed at his head. In a statement later, Meyer said he perceived Duncklee to be “a serious and potentially deadly threat,” according to court documents. Meyers said he yelled, “Police, stop,” before firing at Duncklee’s chest.
Soeder said he heard an animal-like growling noise from the room just before Duncklee burst through the doorway, raising what later turned out to be a broken hockey stick. As he tried to back up, Soeder tripped and began to fall backward as he fired, striking Duncklee in the head.
Duncklee fell to the floor. A woman who had been standing behind him, Amber Watts, was hit in the leg during the shooting. Soeder moved to help Watts. Meyer radioed for help but did not assist the wounded Duncklee for fear he might be armed or there might be others in the apartment.
Duncklee died on the scene. Watts recovered from two gunshot wounds to her leg.
Irma Woodward, Duncklee’s mother and the trustee for his estate, sued the city and the officers, claiming excessive use of force and that the officers unlawfully entered the apartment. The officers claimed they were protected by qualified immunity, but the district court disagreed and issued a partial summary judgment for Woodward.
But the appeals panel reversed, noting that Duncklee and Watts were trespassing in an apartment from which Watts had been evicted, turned over the keys and arranged a later date to come pick up her belongings stacked there.
“All of the district court’s conclusions rest on the premise that Duncklee deserved constitutional protections because of his presence within the vacant apartment,” the panel’s ruling said.
“Because Duncklee had no reasonable expectation of privacy while trespassing in the apartment, we reverse its denial of qualified immunity regarding the warrantless entry and seizure of the apartment,” the court said.
Rankin said after the ruling that he does not believe Woodward will be able to build a successful new case, but he noted that she still has avenues of appeal remaining.
“We’ll see what the plaintiffs do in terms of a rehearing,” he said.