Lakewood police called a man six times asking him to come outside — yet they refused to show themselves when he peered out twice in the darkness. The man, fearing he was being set up for an attack, then grabbed his shotgun and exited.
That is when an officer shot him in the leg.
On Friday, the federal appeals court based in Denver reinstated the lawsuit of Eric St. George against the city of Lakewood and Agent Devon Trimmer after a lower court dismissed the case. A majority of the three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined, under the totality of the circumstances during that night in Lakewood, Trimmer had not acted reasonably when she shot St. George.
"I’m just trying to figure out what were they doing," said Judge Gregory A. Phillips of the officers during oral arguments. "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."
Matthew Cron, a civil rights attorney with the Denver firm Rathod Mohamedbhai, said after reading the decision that what happened to St. George was a "textbook case of what constitutes terrible policing."
"What was Mr. St. George supposed to do in this situation?" he asked. "Just trust that these people hiding in the shadows and were refusing to identify themselves are law enforcement who only have law abiding intentions? No rational person would have that trust."
According to St. George's federal lawsuit claiming excessive force, he arranged for a female escort to meet him at his Lakewood home on July 31, 2016. A payment dispute arose, requiring St. George to speak with her agency. Thirty minutes later, the escort reportedly said she was leaving, prompting another payment dispute.
St. George grabbed his handgun and went after her. She allegedly brandished mace and he reportedly raised his gun and fired a warning shot in the air. The escort fled the scene, called 9-1-1, and reported St. George had made unlawful sexual contact and fired a shot at her. Police, including Trimmer, responded to the apartment complex and found no bullet casings, nor anyone who heard a gunshot. They decided they lacked probable cause for an arrest warrant.
Meanwhile, St. George had gone out to dinner and was sitting at his computer drinking a glass of wine. The officers reportedly called St. George six times over 15 minutes, beginning just after midnight. Each call was from a blocked number, and St. George thought the lack of caller identification meant it was a prank caller or telemarketer.
On the second call, St. George reportedly answered and a police agent identified himself and told St. George to exit the home. St. George reportedly opened his door, but did not see the hidden officers.
St. George answered the fourth call, and Sgt. Nathan Muller reportedly said his "friends" were watching St. George through his apartment windows. Muller allegedly learned that St. George did not believe he was speaking with actual police officers, and that he seemed "paranoid."
After the fifth call, St. George exited and looked around using his cell phone as a light. The officers still remained hidden and did not announce their presence. After the sixth and final call, St. George told Muller, "you aren't there." St. George believed he was receiving calls from someone impersonating the police, and exited with a shotgun, pumping it and ejecting a live shell, which the officers heard.
After six minutes of standing outside with no sign of the police, St. George began to walk around his building toward where Trimmer was hidden. At one point, Trimmer fired at St. George, hitting him in the leg. He returned fire, but missed her.
Allegedly, it took sixteen minutes after Trimmer shot St. George until the officers identified themselves.
"We know that Agent Trimmer fired immediately after seeing him, but we know that she had six minutes from the time that he stepped out of his house and he fired his warning pump action," argued Danielle Trujillo, a University of Colorado law student representing St. George, to the appellate panel. "She had six minutes at that time to identify herself and yet she still chose not to.”
Some of the judges on the panel voiced skepticism of the Lakewood police's tactics.
"It seems to me everything they did was perfect for making the plaintiff think that there were some people out there who wanted to get him," Judge Harris L Hartz observed. "They were claiming to be police — they said it over the phone, but they wouldn’t show their faces. [They didn't] do anything when he walked in front, even though he didn’t have a gun at that time and there would’ve been no danger in showing up at that point."
Malcolm S. Mead, an attorney defending the city and its officers, shifted the blame to St. George, saying that instead of doing something reasonable, he "grabs the shotgun and goes outside on the hunt."
Representing himself as an inmate, St. George filed his lawsuit in July 2018. Last year, U.S. District Court Judge William J. Martínez agreed to dismiss the complaint, finding Trimmer had acted reasonably by shooting St. George in the leg.
By a 2-1 decision, the 10th Circuit panel reinstated the lawsuit. Hartz, writing for himself and Phillips, acknowledged that St. George was reported to have committed a serious crime. But he was not resisting arrest, never received warning that Trimmer would use deadly force, and his possession of a shotgun did not indicate a hostility toward law enforcement.
Any reasonable officer, Hartz wrote, "would have realized that it was the act of a frightened man facing hidden foes who were acting nothing like one would expect from the police."
Chief Judge Timothy M. Tymkovich dissented, noting that St. George did not do anything to alleviate his suspicion that the officers were instead police impersonators. He did not, for example, call 9-1-1 or ask them to show their badges.
Trimmer "had no reason to believe St. George would have been responsive to a police warning when he had ignored instructions from police officers in the six phone calls prior to his exit from his house," Tymkovich wrote. "A warning in these fast-moving circumstances would have revealed her location and could have even cost her life."
He concluded that she acted reasonably in shooting St. George.
Cron, the civil rights attorney, believed the majority reached the right decision by focusing on what the officers knew about St. George's state of mind during the interaction.
If someone receives a call "well after midnight to say come outside and we have friends waiting in the shadows, and you go outside and don't see police, any reasonable person would be frightened in that scenario," he said. "The officers here had ample reason to know Mr. St. George did not believe police were on the scene."
The panel noted that although the case is returning to the district court, there could still be another opportunity for Trimmer to seek immunity. The 10th Circuit appointed attorney Matthew R. Cushing to represent St. George, who in turn worked through the University of Colorado Law School Appellate Advocacy Practicum, in which Trujillo and Neil Sandhu conducted oral argument under Cushing's supervision.
Cushing said on Friday that the legal appointment will cease when St. George's case returns to the trial court.
A Jefferson County jury convicted St. George in 2018 on nine counts stemming from the night's events, including including attempted murder, first-degree assault, menacing, illegal discharge of firearm and unlawful sexual contact. The Denver Post reported at the time that St. George fired three shots at a police officer, who then "returned fire, injuring St. George."
St. George had also attempted to sue the First Judicial District Attorney's Office and various news organizations for making false statements about his criminal case. The Colorado Court of Appeals dismissed that lawsuit last year.
The case is St. George v. Lakewood et al.