Law and order

PHOENIX — A federal appeals court has blocked a lawsuit against two Tucson police officers in the 2014 shooting in what was supposed to be a vacant apartment.

The 9th Circuit Court of Appeals overturned a trial judge’s ruling that the officers acted illegally in entering the apartment where they shot and killed 28-year-old Michael Duncklee without first getting a search warrant to enter the unit. Judge Eduardo Robreno, writing for the unanimous three-judge panel, said while Duncklee was a guest of Amber Watts, she had been evicted from the apartment, meaning neither she nor Duncklee had any privacy rights.

And the appellate court also said the officers are entitled to qualified immunity in the actual shooting. The judges said that, given the situation, a reasonable officer would not have known that shooting Duncklee violated any clearly established rights.

“Indeed, the case law makes clear that the use of deadly force can be acceptable in such a situation,” Robreno wrote.

The shooting stems from a call to police from a woman who said she was employed by an apartment complex landlord for the property in the 3800 block of East Monte Vista Drive and that former tenants were inside a unit that was supposed to be empty. She said she was not at the property and did not provide other identification other than a first name.

Police arrived nearly two hours later. After finding the security door and front door unlocked he radioed for backup.

Officers Robert Soeder and Allan Meyer entered the apartment with guns drawn, finding numerous belongings against the wall, filling about half the room. On entering an interior room, Meyer said he saw Duncklee holding “a large stick,” with a woman behind him, saying the man charged at him.

The officer said he could not back up because of the clutter and yelled, “police, stop,” but fired at Duncklee’s chest when he kept coming at him.

Irma Woodward, Duncklee’s mother, sued the city and the officers.

U.S. District Judge Rosemary Marquez rebuffed a bid by the city to have the case dismissed.

She said the woman who called police initially did not identify herself, did not want to be part of the investigation, and may not have had the same legal authority as the landlord. The judge said that meant there was no legal right for the officers to enter the apartment, meaning the entry “violated Mr. Duncklee’s right to be free from unreasonable searches and seizure.”

Robreno said the entire ruling was flawed.

“All of the district court’s conclusion rest on the premise that Duncklee deserved constitutional protections because of his presence within the vacant apartment,” he wrote.

In essence, Robreno said, Duncklee’s claim of privacy rights are linked to his contention that he was an overnight guest of Watts.

“However, Watts had no privacy rights to assign to Duncklee,” the judge said.

“The reality is that Watts was a trespasser, as she had been evicted from the property,” he continued. “One who has been formally evicted has no reasonable expectation of privacy in his or her previous residence.”

And Robreno said Watts was aware of her status, with her key having been taken away.

There was no immediate response from the attorney representing Duncklee’s mother.

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