Ngo v. Storlie

Decision Date26 July 2007
Docket NumberNo. 06-2771.,06-2771.
PartiesDuy NGO, Plaintiff-Appellee, v. Charles STORLIE, in his individual capacity as an officer of the Minneapolis Police Department, Defendant-Appellant, John Doe, in his supervisory capacity as ranking Minneapolis Police Officer; Richard Roe, in his supervisory capacity as ranking Minneapolis Police Officer; City of Minneapolis, Minnesota, Defendants.
CourtU.S. Court of Appeals — Eighth Circuit

Before WOLLMAN and MELLOY, Circuit Judges, and NANGLE, District Judge.1

MELLOY, Circuit Judge.

Former Minneapolis Police Officer Duy Ngo brought this action under 42 U.S.C. § 1983 against Charles Storlie, an officer with the Minneapolis Police Department ("MPD"), as well as the City of Minneapolis and two unnamed MPD supervisors (collectively, "the City"). Ngo alleged that Storlie used excessive force in violation of Ngo's Fourth Amendment rights during an incident in which Storlie shot Ngo with an MP5 semi-automatic machine gun while Ngo was working as an undercover police officer. Ngo also brought failure to train and unconstitutional custom claims against the City. The City moved for summary judgment, and the district court2 granted the City's motion. Ngo does not appeal the grant of summary judgment to the City. Storlie also moved for summary judgment, arguing that qualified immunity applied. The district court denied Storlie's motion, and Storlie appeals. In response, Ngo filed a motion to dismiss Storlie's interlocutory appeal based on lack of jurisdiction. For the following reasons, we deny Ngo's motion to dismiss, and we affirm the district court's denial of Storlie's motion for summary judgment on the issue of qualified immunity.

I. Background

For purposes of summary judgment, we view the evidence in the light most favorable to Ngo, the non-moving party. Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007); Henderson v. Munn, 439 F.3d 497, 503 (8th Cir.2006). Storlie does not dispute Ngo's version of the facts for purposes of summary judgment.

In the early morning hours of February 25, 2003, Ngo was conducting plainclothes surveillance for the Minnesota Gang Strike Force ("Strike Force") in Minneapolis. Ngo was driving an unmarked green Buick. He was wearing a black hooded sweatshirt with a zip-up front, light blue jeans, brown boots, and a wig. Under his sweatshirt, Ngo was wearing a bullet-proof police vest with his police badge and portable microphone attached. Ngo's vest had "POLICE" written on the front and back. His badge was on the upper-left side of his vest.

At 12:59 a.m., Ngo called the MPD dispatcher and told the dispatcher that he was going to be working in the vicinity of East 36th Street and 3rd Avenue South. The police dispatcher sent out a text message to all squad cars, stating: "GANG 115 DOING SURVEILLANCE IN GRN BUICK. AREA OF 36 ST/3 AV. S. WILL CALL CH. 1 WHEN DONE." Metro Gang 115 was Ngo's Strike Force call number.

Approximately one hour later, Ngo was parked in an alley north of 36th Street between Clinton Avenue and 3rd Avenue. The driver's side window was open. Ngo saw the figure of a person, identified as a black male over six feet tall, appear in his rearview mirror walking southbound toward the rear of Ngo's car. The man walked up to the driver's side of Ngo's car and asked Ngo what he wanted. Ngo told him to "Get the fuck out of here." The man then produced a pistol and pointed it in Ngo's face. Ngo attempted to wrestle it away. During the struggle, the man shot Ngo in the left abdomen, but the bullet was stopped by the bullet-proof vest. The man fired several more times, putting four bullet holes through the passenger door. The man then pulled away and took off running southbound across 36th Street into the next alley. Ngo rolled out of his car, ripped open his hooded sweatshirt, and pulled it down from his shoulders. Ngo's sweatshirt was completely off his shoulders.

At this point, Ngo sent out a broadcast stating, "Metro Gang 115, Emergency. Officer shot 36th and 36th and 3rd. Suspect running south, southbound in the alley." An alert tone sounded for a citywide broadcast and the dispatcher broadcasted "All cars officer needs help 36th and 3rd. Officer down. All cars officer detail 36th and 3rd come to channel one."

As he was broadcasting, Ngo took a 9 millimeter Beretta pistol out of the holster on his right hip. He began running after the suspect and repeatedly fired at him. Mid-block in the alley between 36th and 37th Streets, the suspect turned and ran eastbound between two houses. Ngo then drew a second pistol, a laser-sighted 9 millimeter Beretta. He held the first pistol in his right hand and the second in his left hand. At this time, still standing mid-block in the alley between 36th and 37th Streets, Ngo made a second broadcast, "Metro Gang 115 the suspect cut eastbound, black male, black male, black jacket, be advised I'm plainclothes. Black male, black jacket, white tennis shoes." Ngo then dropped his radio microphone and "let it hang." For purposes of this appeal, Storlie acknowledges receiving the dispatcher's text message, the dispatcher's citywide broadcast, and both of Ngo's radio transmissions in their entirety.

Ngo came out of the alley onto the southernmost lane of 36th Street, where he saw a squad car coming eastbound on 36th Street. Ngo was directly under a street lamp. With a pistol still in each hand, he waved his arms over his head, attempting to flag down the squad car. The squad car passed within three or four feet of Ngo, but did not see him and drove past.

Meanwhile, after hearing the radio transmissions, Storlie and fellow officer James Conway activated their squad car's siren and headed toward the area detailed in the transmission. Conway, who was driving, headed north on Highway 35W at a speed of approximately 100 m.p.h. He exited the highway at 36th Street. While Conway drove, Storlie loaded an MP5 semi-automatic machine gun before arriving at the scene. When the squad car exited the highway, the siren and lights were shut off. Conway then drove eastbound on 36th Street, which is an eastbound one-way street.

After failing to attract the attention of the first squad car, Ngo felt an intense pain in his abdomen. He dropped the pistol he had been holding in his left hand, and it fell behind him to his left. He kept the other pistol in his right hand. Ngo then fell to his knees. While on his knees, and with the pistol still in his right hand, Ngo began waving his arms over his head in an attempt to flag down the next squad car he saw. Storlie and Conway were in this car. Ngo continued to wave his arms over his head, with a pistol in his right hand, until "right before they stopped."

About mid-block between Second and Third Avenues, Conway first observed an individual just out of the alley in the southernmost lane of 36th Street. Before stopping the car, Conway said, "There he is." Conway stopped the squad car approximately nine to twelve feet from Ngo. "Almost immediately" after Ngo got the attention of the officers in the squad car, he fell forward from his kneeling position. As he fell forward, he dropped the pistol he had been holding in his right hand on the ground. His left hand never touched the ground. At that point, Ngo's right hand was on the blacktop near the pistol and his left hand was clutching his left side where he had been shot by the suspect. From the moment Ngo saw the car until the time he was shot, Ngo never attempted to stand up. His radio microphone was hanging out through the front of his unzipped hooded sweatshirt. While he had pulled his sweatshirt down off his shoulders, it is unclear whether the officers could see the "POLICE" written on the front of his bullet-proof vest or the police badge that was attached to his vest. Ngo fell forward and dropped the pistol that was in his right hand "pretty much simultaneously" with the stopping of Conway and Storlie's squad car. Ngo's head was up and he was looking at the officers.

After the squad car came to a stop, both Conway and Storlie exited the squad car and Storlie fired his MP5 semi-automatic machine gun at Ngo a split-second later. Ngo did not have enough time to say anything. Ngo was hit several times, through his left side, arm, groin, and leg area. Ngo suffered six independent gunshot wounds related to shots fired by Storlie.

Following the incident, Ngo commenced this action for damages under 42 U.S.C. § 1983 against Storlie and the City, alleging that: (1) Ngo's Fourth Amendment rights were violated by Storlie's use of deadly force in such circumstances; (2) the City failed to provide training on identifying plainclothes officers in the field; and (3) the City's custom or practice of allowing officers to use excessive force was unconstitutional. Storlie and the City both moved for summary judgment.

The district court granted the City's motion for summary judgment on Ngo's failure to train and unconstitutional custom claims. However, after looking at the evidence in the light most favorable to Ngo, the district court concluded that Storlie was not entitled to summary judgment on the basis of qualified immunity. Storlie then filed this interlocutory appeal, asserting that he is entitled to qualified immunity because he did not violate Ngo's constitutional rights, and, even if Ngo's constitutional rights were violated, Storlie's actions were objectively reasonable in light of clearly established law.

Ngo filed a motion to dismiss Storlie's interlocutory appeal,...

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