Jury says Minn. officer's use of force 'within the law'

Sunday, May 31, 2009

By Rochelle Olson
Star Tribune

MINNEAPOLIS, Minn. — The Minneapolis police officer who shot and killed 19-year-old Fong Lee in 2006 acted within the law, a federal jury decided Thursday, rejecting a lawsuit's allegations that police planted a gun and orchestrated a coverup.

After nearly six hours of deliberations the jury answered a single question: Did officer Jason Andersen, who claimed Lee had a gun, use excessive force when he shot Lee eight times during a foot chase? The jury said no, so there was no need for it to consider further questions, such as how much money would compensate the slain man's family.

The verdict brought at least some closure to a painful chapter in Minneapolis police-community relations, in which police and supporters who said Andersen behaved heroically were pitted against segments of the Hmong community and neighborhood activists who decried the killing. Their arguments rested in part on a video of part of the foot chase randomly captured by a school security camera that didn't appear to show a gun in Fong Lee's hand.

Defendants in the suit maintained the gun was there but couldn't be seen clearly because of the video's grainy quality.

Police Chief Tim Dolan said he was relieved by the verdict and hoped it would relieve some of the strain endured by Andersen and his family.

"The allegations were basically about how law enforcement does business throughout this country and what we feel is reasonable and fair," he said. "This was something we needed to win." He said the department will work to heal some of the rifts the lawsuit's well-publicized allegations caused between the department and the Hmong community.

The verdict upset family members, who were plaintiffs in the suit against Andersen and the city.

"Our quest for truth doesn't end today; we will continue to seek answers," Fong Lee's older sister Shoua Lee said to reporters. Lee and her mother, Youa Vang Lee, hugged as they cried outside the courthouse.

For weeks leading up to the trial, Lee family lawyers Michael Padden and Richard Hechter were vocal in their accusations that Andersen gunned down Lee without justification, and that Andersen or other officers then planted a gun at the scene to save the officer from the consequences.

But at trial, Padden stumbled early, incurring U.S. District Judge Paul Magnuson's wrath for projecting on courtroom televisions -- mistakenly, Padden claimed -- a photograph of Lee's bullet-riddled body.

Expert impeached

And as the five-day trial progressed, assistant Minneapolis city attorneys Jim Moore and Greg Sautter picked apart key plaintiffs' witnesses, for example, using a video recording to force one to admit that Andersen's squad car didn't knock Fong Lee off his bicycle, as the witness first claimed.

In cross-examining Philip Corrigan, the plaintiffs' expert on the use of force, Moore elicited that although Corrigan spent 20 years on the Tucson (Ariz.) Police Department, he was not certified to teach the use of force. Corrigan also acknowledged that until Moore told him, he had been unaware of the main U.S. Supreme Court case on deadly force.

In contrast, the city's expert, Michael Brave, has taught deadly force and cited many Supreme Court cases. He testified that "officers do not have to be shot before they return fire. ... The relevant factor is whether officer Andersen perceived a gun, not whether or not I can speculate he could see a gun."

Both Andersen and his partner that night, state trooper Craig Benz, testified they saw a gun in Lee's hand.

A low point for the city, however, was the testimony of Lt. Mike Fossum, whose handling of a gun found in a snowbank in 2004 raised questions.

A .380-caliber Russian-made Baikal handgun was found near Lee's body. The gun was reported stolen in February 2004 by North Side resident Dang Her.

Her testified Fossum called him in 2004 and told him the gun had been recovered. But the city said misunderstandings and paperwork mistakes by Fossum only made it later appear to be in custody. The city said the gun recovered from a snowbank in February 2004 was a 7.65 caliber FNH, not Her's gun.

Fossum's testimony was confusing at best.

Magnuson read the verdict shortly after 1 p.m., before the many Lee family members had returned from lunch. Neither Andersen nor the lawyers were in the courtroom.

Lee family members expressed anger and sadness at the jury's decision and how it was read without them.

Tou Ger Xiong, a member of the Coalition for Community Relations, which he described as a group of concerned citizens, angrily said he had many questions. He called the verdict "beyond disappointment and beyond disbelief."

The message, he said, is "Watch out. If a cop thinks you pose a threat, you will be shot and you will be killed."

He questioned the lack of diversity on the jury. Although there were racial minorities in the jury pool of 77, all 12 jurors appeared to be white.

Xiong said he wants a "federal, independent" investigation of the shooting.

In 2007, a Hennepin County grand jury cleared Andersen of criminal wrongdoing. Then, in a move critics said could be perceived as bad public relations, the Minneapolis department in July awarded him the Medal of Valor, one of the department's highest honors for bravery, for his actions in the shooting.

Lt. John Delmonico, head of the police federation, said he wasn't surprised by the verdict. He said Andersen was doing his job. "When somebody confronts somebody with a gun, the police chase after him to get the gun and the bad guy off the street," Delmonico said.


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