A jury will now decide whether a Rifle police officer and the city itself are liable for shooting a fleeing suicidal man, as a federal judge on Monday refused to grant immunity for the 2019 killing of Allan George.
Lawyers for Corporal Dewey Ryan and the city argued George posed a threat to others as he ran toward downtown Rifle, and Ryan had reasonably shot and killed George only at the "last possible moment." But U.S. District Court Judge Charlotte N. Sweeney believed the law, in reality, labeled Ryan's conduct as unreasonable.
Even though the district attorney's office declined to charge Ryan with a crime, a jury could plausibly find George's slaying was a constitutional violation, Sweeney decided.
"This gun was not fired at the last possible moment. This gun was fired at the first possible moment," she said in an oral ruling in her courtroom. "This is a situation where a clearly suicidal man in desperate straits has turned, given up all hope, and jogged toward town with a gun in his pocket with no objective intent to use it on officers or anyone else."
The judge further found the city's training and policies appeared to be motivating factors in George's killing, raising questions about whether Rifle's deadly force protocols comply with the U.S. Constitution.
The excessive force lawsuit brought by George's family directly implicated the U.S. Supreme Court's 1985 decision in Tennessee v. Garner, which recognized the use of deadly force against a fleeing suspect is not automatically constitutional simply because the person is wanted for a felony offense. Instead, deadly force is warranted only when an officer believes the suspect poses a serious risk to others.
Accordingly, Sweeney and the parties agreed that was the question hanging over the events of Aug. 5, 2019.
Around 6:30 that evening, Ryan and Officer Shelby Beitzel parked near a bridge connecting Interstate 70 to Rifle, passing over the Colorado River. They were on the lookout for George's work truck as he returned to his home. There was a warrant for George's arrest for the felony offense of allegedly possessing child pornography.
The two officers had learned secondhand that George's wife claimed he was suicidal, carried around a gun he recently bought, and was not going to jail "without a fight." The department decided to apprehend George on the bridge to avoid the risk he would barricade himself or take hostages in a residential area of the city.
Given the existence of audio and video recordings, the parties agreed about what happened in the 10 minutes after the officers pulled George over on the bridge. Ryan and Beitzel covered themselves with their vehicles and pointed their weapons at George, ordering him to exit. Instead, George walked toward Ryan, pulled out his handgun and pointed it at his own chest.
George stood by the guardrail, resisting the officers' nearly four dozen requests to put the gun down.
"No! It's over! I'm not going to jail! I'm not going to be a sex offender," he yelled as Ryan and Beitzel repeatedly attempted to talk him out of killing himself.
At one point, George stepped over the guardrail, put his gun in his pocket and gestured as if he were about to jump into the river. After several more minutes, George opted against jumping and returned to the road. He started walking, then jogging away from the officers with his gun still in his pocket. After eight seconds, and without warning, Ryan shot George twice in the back on the bridge with his rifle.
The encounter lasted from 7:11 until 7:21 p.m. George died at approximately 7:38 p.m. At the time, the city explained the standoff by saying only that officers "made contact with the subject which unfortunately led to shots being fired."
Three months later, District Attorney Jefferson J. Cheney declined to criminally charge either officer for George's death, finding they "exhausted every reasonable opportunity to peaceably disarm Mr. George." Allowing George to escape, Cheney added, would have amounted to a violation of their duties.
George's wife and children filed a civil rights lawsuit against Ryan, the city, and then-police Chief Tommy Klein, who is now Rifle's city manager. The family's attorneys argued Klein and the city, aside from being responsible for training Ryan, affirmed after the shooting that the officer's use of force complied with the department's policies.
"Not only did he not get charged with first-degree murder, which he should have been," said David Lane, a lawyer for the plaintiffs, on Monday, "not only did he not get fired, which he should have been, but he got promoted and, as far as I know, is still a police officer in Rifle."
Last year, a judge declined to dismiss the lawsuit outright, finding Ryan was not entitled to qualified immunity. This spring, the defendants renewed their attempt to end the lawsuit by again asserting qualified immunity, which shields government employees from civil liability unless they violate a person's clearly-established legal rights. The defendants argued there was no prior court decision that would have put Ryan on notice it was constitutionally-unreasonable to shoot a felony suspect in the back under the specific circumstances that unfolded on the bridge.
"We concede Mr. George never pointed the gun at the officers," attorney Eric M. Ziporin told Sweeney. "But his refusal to drop the gun after 43 commands over nine minutes leads a reasonable officer to conclude he could use that gun, and would use that gun at a moment’s notice."
With the plaintiffs insisting George never threatened anyone but himself and the defendants countering George could have turned the gun on others at any moment, Sweeney observed the facts of the encounter contradicted the notion Ryan was worried about an imminent threat to public safety.
"The guy is sitting there for nine minutes with a weapon. Traffic has not stopped. There's no effort made to get cars to stop driving right by the scene of this," she said, adding that George never pointed his gun at anyone else on the bridge, despite the opportunity to do so.
The judge concluded Ryan did not have a reasonable belief George posed a threat, and a jury could also reach that conclusion.
"We have a 58-year-old man, clearly frail," she said. "It is clear from the video, at no time did this turn from a potential suicide to a potential homicide. Indeed, throughout the entire nine minutes before George left the guardrail, he was looking up at the sky, seeming to be pleading with a higher power, making utterances that he doesn't know what to do, he’s embarrassed for his family."
Those were signs, she continued, "this individual is suicidal, not homicidal."
In Sweeney's view, George would have never made it into downtown Rifle, which the officers claimed was their fear if he were allowed to escape. Consequently, she believed the law clearly established Ryan acted unreasonably by shooting George without warning eight seconds after George started to leave the scene. Sweeney also refused to dismiss the claims against Klein and the city itself, noting Ryan had shot George according to the city's use-of-force policy.
"It does highlight the concern that the level of training at the city of Rifle is not in accord with the Fourth Amendment," she warned.
Both parties indicated they are prepared for a jury trial, which could take place as soon as February. Lane, the attorney for the plaintiffs, said there is one lingering issue that could affect whether there is a settlement: the degree to which jurors are allowed to hear about George's alleged crime of possessing child pornography.
The case is Estate of Allan George v. City of Rifle et al.
