The federal appeals court based in Denver dismissed an excessive force lawsuit earlier this month from a man who alleged Lakewood police hid outside his home, failed to identify themselves as law enforcement, then shot him.

In Eric St. George’s telling, police officers planted themselves outside his building close to midnight and called him multiple times on the phone. Although the caller said they were police and asked him to come out, St. George did not see anyone when he exited his home. Fearing he was being set up, St. George walked outside with a shotgun.

After six minutes of wandering and not encountering anyone, St. George finally came close to an officer hiding behind a truck. She shot him in the leg, prompting a gunfight.

A jury subsequently convicted St. George of attempted murder of the officers.

St. George sued the city and the officers alleging excessive force, but a trial judge dismissed the lawsuit. On Aug. 7, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld that outcome, finding the officers were immune from liability.

“It was not clearly established that an officer violates the Fourth Amendment by using deadly force without warning when facing an armed suspect under the circumstances in this case,” wrote Judge Richard E.N. Federico.

In the underlying case, St. George got into an argument in July 2016 with a hired escort at his home. Believing she was robbing him, St. George fired a handgun in the air as the escort was getting into her car. St. George then left for a restaurant and the escort called police to report St. George for unlawful sexual contact and the shooting.

Officers reached St. George’s neighborhood after 10 p.m. and allegedly found nothing amiss. St. George came home an hour later and officers watched him from outside. After midnight, police repeatedly called St. George from a blocked number. When St. George picked up, officers identified themselves and asked St. George to come outside. However, when St. George opened the door, he did not see anyone.

After the callers repeatedly asked him to exit, St. George allegedly began to fear the escort’s associates were luring him into a trap. He picked up a shotgun, pumped it loudly and began walking around his building. Police concealed themselves, while preparing for a “crossfire situation.”

Nearly six minutes after St. George began walking, he approached a truck where Agent Devon Trimmer was concealing herself. According to St. George, when Trimmer saw St. George, she shot him in the leg, setting off a 90-second gunfight. St. George eventually surrendered.

Following a guilty verdict in his attempted murder case, St. George filed an excessive force lawsuit. A trial judge originally concluded St. George failed to credibly allege a violation of his constitutional rights, but a different 10th Circuit panel reinstated the case in 2021 by a vote of 2-1, leaning heavily on the fact that officers neglected to identify themselves outside the home.

“It seems like their conduct was not typical police behavior and will end up in this exact same result more often than not, which is a citizen is shot when he didn’t need to be,” Judge Gregory A. Phillips observed at the time.

Upon further litigation in the trial court, U.S. Magistrate Judge Scott T. Varholak recommended once again that St. George’s claims be dismissed. First, he cited qualified immunity, which generally shields government officials from civil lawsuits unless they violate a person’s clear legal rights. Although the officers “can certainly be criticized for not employing their flashing lights — which would have indisputably identified them as police,” Varholak wrote, he did not find Trimmer was clearly on notice her conduct would have violated St. George’s rights.

Second, Varholak invoked Heck v. Humphrey, a U.S. Supreme Court decision holding that plaintiffs cannot prevail in a lawsuit if it would necessarily invalidate a criminal conviction. 

Because St. George’s jurors convicted him of attempted murder despite his assertion of self-defense, “any conclusion that Agent Trimmer used unlawful and excessive force against Plaintiff would be inconsistent with the jury’s rejection of Plaintiff’s defense,” Varholak wrote.

U.S. District Court Senior Judge William J. Martínez agreed with the recommendation and dismissed the case.

St. George, representing himself on appeal, maintained the Lakewood officers were the ones responsible for the gunfight.

“When Mr. St. George came out to talk the LPD hid in the shadows. LPD never once properly identified themselves. They never once announced their presence,” he wrote. “It was these reckless and deliberate actions that created the circumstances where force was used.”

However, the 10th Circuit panel agreed with Varholak that the jury’s conviction of St. George and the rejection of his self-defense argument necessarily meant the force Trimmer used against him was lawful. As long as his convictions remained intact, he could not claim a constitutional violation.

Further, “the officers were responding to reports of a serious crime with shots fired, they identified themselves three times (on the phone), and St. George was advancing on Trimmer having already behaved in a threatening manner,” added Federico in agreeing Trimmer’s actions were not clearly unreasonable.

The case is St. George v. City of Lakewood et al.