(AP) - The lawyer for a former Minneapolis undercover officer who was shot by another officer in 2003 said a federal appeals court ruling Thursday sends the lawsuit stemming from the shooting back to federal court in Minneapolis.
A trial could start this year, said Bob Bennett, the attorney for Duy Ngo.
Minneapolis officer Charles Storlie shot Ngo several times without warning or provocation when he responded to a call for help from Ngo after the undercover officer was shot during a confrontation with a black man, according to court records.
When he radioed for help, Ngo described the suspect, who was running away from the scene.
When Storlie responded, Ngo was down on one knee under a streetlight waving his arms, according to court papers. Storlie jumped out of his squad car and began firing his submachine gun, hitting Ngo several times.
Ngo sued Storlie and the city, alleging that Storlie used excessive force, denying him of his constitutional rights. U.S. District Judge Richard H. Kyle ruled last year that the city was entitled to immunity in the case, but Storlie was not.
A three-judge panel of the appeals court agreed and unanimously rejected an appeal by Storlie, who resigned from the police department to do contract security work in the Middle East. However, the panel also denied Ngo's motion to dismiss Storlie's appeal, sending the case back to District Court.
The Appeals Court panel ruled that a reasonable jury could find that Storlie deprived Ngo of his constitutional rights when he shot him without warning or provocation.
Bennett, Ngo's lawyer, said the court's ruling was consistent with a previous 8th Circuit opinion saying officers must issue a warning before using deadly force when they know there are good guys - such as a good Samaritan or a plainclothes officer - in the area.
When Ngo was shot, Bennett said he had a radio microphone dangling from his chest and other police insignia visible and obviously didn't match the description of the suspect.
While the city has been dismissed from the case, it still must indemnify Storlie for his actions, Bennett said. That puts the city on the hook for any damages that may be awarded if the case isn't settled out of court.
The opinion was written by Judge Michael J. Melloy of Cedar Rapids, Iowa, who was joined by Judges Roger L. Wollman of Sioux Falls, S.D., and John F. Nangle of St. Louis.
The court said Storlie might have been entitled to immunity if he had made a reasonable mistake. But Melloy wrote that "it was unreasonable for Storlie to fire on the first person he saw, without first making the determination of what that person was."
(Copyright 2007 by The Associated Press. All Rights Reserved.)
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