Decedent v. Andersen
| Decision Date | 12 August 2010 |
| Docket Number | No. 09-2771.,09-2771. |
| Citation | 616 F.3d 803 |
| Parties | Youa Vang LEE, trustee for the heirs and next-of-kin of Fong Lee, Decedent, Appellant, v. Officer Jason ANDERSEN; City of Minneapolis, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Richard William Hechter, argued, Michael B. Padden, on the brief, St. Paul, MN, for Appellant.
James Anthony Moore, argued, Gregory P. Sautter, on the brief, Minneapolis, MN, for Appellee.
Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
Youa Vang Lee (Lee), as trustee for the heirs and next-of-kin of Fong Lee, filed suit against Minneapolis Police Officer Jason Andersen and the City of Minneapolis, among others, alleging a federal cause of action pursuant to 42 U.S.C. § 1983 as well as state law tort claims arising from the death of Lee's son Fong Lee on July 22, 2006. Following a six-day trial, the jury returned a verdict finding that Andersen did not use excessive force against Fong Lee. The district court 1 entered judgment in favor of Andersen and the City of Minneapolis and denied Lee's subsequent motion for a new trial.
Lee appeals from the adverse judgment, arguing that the district court erred in excluding expert testimony that Fong Lee did not have a gun in his hand, in admitting evidence of Fong Lee's gang affiliation, and in formulating the special verdict form. Lee also appeals from the denial of her motion for a new trial, contending that the evidence cannot be reconciled with the verdict. We affirm.
On Saturday, July 22, 2006, Fong Lee, age 19, and his friends, Too Xiong, Nhia Lor, Bobby Vang, and Phong Xiong, were riding bicycles near Cityview Elementary School in North Minneapolis. Cityview is located in a residential neighborhood and is monitored by surveillance cameras.
Officer Andersen and State Trooper Craig Benz were patrolling North Minneapolis in a marked police car that Andersen was driving. When they approached Cityview, they encountered the young men riding bicycles toward the school. Although the men were not doing anything suspicious when the squad car approached, Andersen decided to follow them. As the squad car caught up with the men, Fong Lee and Too Xiong, who were riding near the front of the group, jumped the curb and rode away from the squad car. Andersen activated the squad car's lights and drove it over the curb into a grassy area on school grounds in pursuit of the two men.
Fong Lee and Too Xiong appeared to come together on their bicycles. Andersen and Benz testified that they saw Too Xiong hand something to Fong Lee. Benz was unable to determine what the item was, but Andersen saw that it was a gun. Lor heard an officer say, “He's got a gun,” and Andersen testified that he yelled, “He's got a gun.”
According to Andersen and Benz, Fong Lee dropped his bicycle and started running. Other witnesses testified that the squad car hit Fong Lee, knocking him off his bicycle. The other young men left the scene, biking to Lor's house. They testified that they were frightened by the way Andersen had approached Fong Lee. They did not hear the officers issue any commands or warnings.
Andersen stopped the squad car, and both he and Benz exited the car with their service weapons drawn. As Benz exited, he yelled “police” and “gun” because he saw the handle of the gun. Andersen and Benz chased Fong Lee on foot, keeping their service weapons drawn and with Andersen in the lead. Benz slowed down and considered retrieving the squad car, but decided to continue to pursue Fong Lee on foot so that he would be able to provide backup to Andersen. Andersen reported on his radio that he was chasing an armed person. Andersen testified that he commanded Fong Lee to drop the gun, repeatedly yelling, Several neighbors testified that they did not hear Andersen's commands, but one neighbor heard two or three commands to put the gun down.
Andersen chased Fong Lee around a corner of the school, between the school and a retaining wall. As they were rounding the corner, Fong Lee turned back towards Andersen. Andersen testified that he could see a gun in Fong Lee's right hand and felt threatened as Fong Lee pivoted. Andersen fired one shot, which missed, and Fong Lee continued to run. After rounding the corner, Fong Lee turned back a second time. According to Andersen, Fong Lee turned his upper body to the right one-hundred-eighty degrees, with the gun still in his hand. Although Fong Lee did not point the gun at him, Andersen testified that he believed his life was in danger and Fong Lee was going to shoot him. Andersen fired three more shots, all of which struck Fong Lee, and saw one bullet hit Lee in the lower right abdomen. Upon being struck by the bullets, Fong Lee fell to the ground and Andersen continued to yell, “Drop your gun.” Andersen perceived that Fong Lee was trying to get up from the seated position, whereupon Andersen fired five more shots. As Fong Lee fell backwards, Andersen saw a gun fly out of his hands. Andersen adopted a defensive stance and ceased firing. Fong Lee was hit by a total of eight bullets and died at the scene from his wounds.
Police backup arrived shortly thereafter. Officer Bruce Johnson, the first to arrive, saw Andersen standing with his gun pointed at Fong Lee. Neither Andersen nor Benz had approached Fong Lee's body. Numerous law enforcement officials arrived within seconds of Johnson. Johnson took steps to segregate Andersen from the responding officers, as department policy requires. Benz was sequestered separately. Johnson approached the body and observed Fong Lee on his back with a gun a few feet away from his left hand. The gun was a Russian-made Baikal .380 caliber semi-automatic pistol.
Three school surveillance cameras captured parts of the incident. Video from camera 1 shows the bicyclists approach the school, the squad car approach the bicyclists, and Fong Lee drop his bicycle. Video from camera 2 shows part of the foot chase, with Fong Lee in the lead followed by Andersen and Benz. Video from camera 3 captured the end of the chase, including images of Andersen with his gun drawn, Fong Lee's body, and the squad cars arriving approximately two minutes after the chase ended.
Lee filed suit in February 2007. 2 Lee later amended the complaint to claim punitive damages against Andersen. In the answer, Andersen pleaded the affirmative defenses of qualified and official immunity. The City moved for partial summary judgment, seeking dismissal of the Monell § 1983 claims 3 and the state claims for negligent hiring, supervision, control, and retention. The district court granted the City's motion. The claims remaining for trial were the § 1983 claim and the state law torts of assault, battery, and wrongful death against Andersen, and vicarious liability against the City for the alleged torts.
In their pre-trial filings, Lee moved to exclude any evidence of Fong Lee's gang affiliation, and Andersen and the City moved to exclude expert testimony regarding whether Fong Lee had a gun in his hand. As set forth more fully below, Lee's motion was denied and the defendants' motion was granted.
Trial commenced in May 2009. Lee's theory of the case was that Fong Lee did not have a gun; that he ran from the officers out of fear after they had knocked him off his bicycle; that Andersen had no reason to use force against Fong Lee; that the gun found near his body was planted by one or more law enforcement officers; and that a “young, aggressive cop committed a horrible wrongful killing.” Lee argued that the images captured by the surveillance cameras constituted conclusive evidence that Fong Lee was not carrying a gun. Andersen and the City argued that Andersen shot Fong Lee after reasonably perceiving a threat to his life. They conceded that the images were unclear, but maintained that the physical evidence was consistent with Andersen's and Benz's testimony.
At trial, Lee attempted to establish that the gun found near Fong Lee's body may have been in police custody prior to July 22, 2006, and thus could have been placed at the scene by Andersen, by Johnson, or by some other law enforcement officer. Without detailing the extensive testimony regarding this issue, suffice it to say that the weapon was identified by its owner as having been stolen from his home in mid-February 2004 and that it was never in custody of the Minneapolis Police Department prior to its being recovered at the scene of the shooting.
Lee also made an issue of the fact that there was no trace evidence-that is, no blood, fiber, fingerprints, or smudges-found on the gun. In response, the police department's forensic scientist testified that it is not unusual to examine a gun without finding trace evidence and that about twelve percent of guns have an identifiable latent print.
Lee identified Richard Dierks as an expert under Federal Rule of Civil Procedure 26(a)(2). Dierks used digital video recording and processing technology to increase the contrast of the video images captured by the surveillance camera. He clarified seven individual frames captured by camera 3, covering a period of 1.3 seconds near the end of the foot pursuit. Dierks's expert report opined that When asked what methods and principles he used to interpret images, Dierks replied that the first method is “simple observation.”
Andersen and the City moved in limine to exclude Dierks from testifying as to whether the seven images showed that Fong Lee had an object in his hand. The district court granted the motion because “the jury does...
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