Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Benton, Circuit Judge.
Submitted: February 11, 2010
Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
Katie J. Felder sued two police officers and the City of Minneapolis under 42 U.S.C. § 1983 and state law. The district court*fn1 granted summary judgment to the City, but denied qualified immunity to the officers. The officers appeal. This court dismisses for lack of jurisdiction.
Dominic Aries Felder lived with his girlfriend, Tiana Monique Wilson, and their daughter. At about 11:30 p.m. on September 20, 2006, officers Jason Wayne King and Lawrence Patrick Loonsfoot were dispatched to deal with a domestic disturbance. Dispatch told the officers that Dominic Felder was in front of his house, "threatening to kill a resident and her son." He was described as a "black male, 27, 5 foot, medium build, brown shirt, blue jeans."
When the officers arrived, Felder approached and said, "I need to talk to you guys." Officer Loonsfoot asked to pat him for weapons. Felder responded, "I ain't got nothing," lifted his shirt, and moved his hand around his waist. He turned and jogged slowly away from the officers.
Wilson and her mother approached the officers from the house and talked with them briefly. The women said Felder did not have a gun. The officers got back into their squad car and drove slowly after Felder, with Wilson and her mother following on foot. Felder stopped jogging and walked back toward the squad car. The officers got out.
The events of the next 15 seconds are disputed. The officers' description follows. Officer King drew his gun, ordered Felder to the ground, and knelt on Felder's back to cuff him. An "incredibly strong" Felder forced his way back to his feet and reached for his waistband. Officer King twice struck him on the head with his gun without fazing him. After both officers wrestled him back to the ground, Felder fought into a sitting position, grabbed the barrel of Officer King's gun with both hands, and pulled it toward himself. Officer King fired, shooting Felder, who kept struggling for the gun. Officer King yelled, "He's got my gun!" Officer Loonsfoot -- who had rolled away after the initial shot and now stood behind Officer King -- fired six shots, killing Felder. Another officer, arriving to assist, states she saw Officer King on the ground struggling with Felder, and Officer Loonsfoot firing his gun repeatedly.
Wilson and her mother, watching from across the street, tell a different story. Wilson said she saw the officers holding Felder up by his arms (one holding each arm, his feet 6 to 10 inches off the ground). Felder begged to be let go. She then heard one officer say "get down on the ground." She lost sight of Felder and heard shots.
Katie J. Felder, as trustee for the next of kin of Dominic, sued officers King and Loonsfoot, alleging excessive force under § 1983, and state law assault and battery.
The trustee contends that medical and forensic evidence contradicts the officers' account. One expert witness concludes from an autopsy report that Officer King's shot entered Felder's groin, and thus he "must have been lying on his back or his stomach when this shot was fired." This expert also says that four of the six shots fired by Officer Loonsfoot entered Felder from behind. The officers' own expert concludes that five of the seven "gunshot wounds are inconsistent with Officers King and Loonsfoot's description of Mr. Felder remaining in a sitting position until after Officer Loonsfoot's sixth shot was fired."
The trustee's ballistics expert observes that "the relative lack of gunshot residues on [Felder's] clothing brings into question just how close the officers were to the victim during [the] shooting event." He also notes that the trajectories of two of Officer Loonsfoot's shots suggest Felder was in a defensive posture.
Forensic handwipings revealed gunshot residue (only) on Felder's left hand. The trustee stresses that this evidence is inconsistent with Officer King's statement ...