It was after midnight when a fight broke out between two men at a bar in Wisconsin in 2017, prompting two other men to try to break up the fight, including Jimmie Sanders, a 33-year-old Black man.
However, one of the men fighting pulled out a gun, and a single shot was fired, sending customers running out of the bar, which drew the attention of Appleton Police Lt. Jay Steinke, who was on foot patrol outside the bar with another cop.
Steinke drew his own gun and entered the bar, firing four shots — one of which struck Sanders in the back and killed him — even though he was trying to break up the fight.
Sander’s mother filed a wrongful death lawsuit, obtained by Atlanta Black Star, arguing that her son’s Fourth Amendment rights were violated when he was shot and killed, even though he was not the culprit.
But last week, a federal judge dismissed the lawsuit on the basis that Steinke was protected from liability through qualified immunity, a legal doctrine that protects cops from being sued unless it can be proved they violated “clearly established” rights.
Evidently, there is no clearly established right that protects innocent bystanders from being killed by police.
Chief United States District Judge Pamela Pepper dismissed the case with prejudice, meaning it cannot be refiled in the same court, but it can be appealed to a higher court.
“The plaintiff has not established that the act of shooting into a crowded place without first identifying himself or issuing warnings violates the Constitution as a matter of law,” wrote Judge Pepper in her 58-page opinion.
“Mr. Sanders’s death was a tragedy, but the court cannot conclude that it happened because the defendant violated a clearly established constitutional right.”
Atlanta Black Star reached out to William Sulton, the attorney representing the estate of Sanders, to inquire if he plans to file an appeal, and to ask for video footage of the shooting that has not been made public, but the attorney has not yet responded.
The Shooting
The shooting took place on May 21, 2017, inside Jack’s Apple Pub after Leander Moffitt and Henry Nellum got into an argument that turned into a fistfight, where they both fell to the floor with Nellum on top of Moffitt.
Sanders and another bar patron pulled Nellum off Moffitt in an attempt to break up the fight, which was when a single shot was fired, prompting customers to flee the bar in fear and drawing the attention of Steinke and Appleton Officer Erick Aguilar, who were on foot patrol outside the bar.
The cops did not hear the shot but were informed by customers fleeing the bar that there was a shooting inside. Steinke entered the bar with his gun drawn.
Attorney Sulton claimed that Sanders had taken the gun away from Nellum, which was when the gun went off, striking Nellum in the arm.
But lawyers representing Steinke claimed that Nellum had the gun in his hand, pointed at the cop, prompting Steinke to open fire, striking Nellum in the arm and inadvertently striking Sanders in the back, killing him.
Steinke’s attorneys said video evidence, which has not been made public, shows Nellum walking toward the cop when he was shot by the cop, but the judge described the video as “blurry and unclear.”
They also say Nellum fell to the floor and handed the gun to his girlfriend, Dree Sullivan, who then tried to hide it from police. In 2018, Sullivan was convicted of harboring and aiding a felon and providing false information and was sentenced to three-and-a-half years’ probation.
After firing the shots, Steinke stepped back outside the bar and described the person he had shot to another officer as wearing “all black.”
Sulton argued that Sanders was the only one wearing all black that night, which they say proved that Steinke intended to shoot him.
But Steinke’s lawyers argued that he meant to shoot Nellum, and the only reason he shot Sanders was because other bar patrons pushed Steinke out the door as they were fleeing, which resulted in him missing his intended target.
“The Fourth Amendment is not implicated because Mr. Sanders was not the intended target of the defendant’s use of force,” argued Steinke’s lawyers, according to the judge’s decision.
“The defendant’s use of force was reasonable under the circumstances; and the defendant is entitled to qualified immunity.”
The Dismissal
Judge Pepper agreed with Steinke’s lawyers in her opinion published on Sept. 30, citing case law stating that because the cop never intended to shoot Sanders, his Fourth Amendment rights were not violated.
The defendant (Steinke) asserts that a “Fourth Amendment seizure occurs only when there is a ‘governmental termination of freedom of movement through means intentionally applied.’”
He contends this means that where a police officer fires his gun at a fleeing suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure.
He argues that Mr. Sanders was an innocent bystander and that any attempt by the plaintiff to create a factual dispute regarding whether Nellum had a gun or the reasonableness of the force is of no consequence, because there is no dispute that Mr. Sanders was not the intended target of the defendant’s bullets.
The defendant says that because Nellum was the sole intended target of the defendant’s bullets, Mr. Sanders’s Fourth Amendment rights were not implicated.
Attorney Sulton argued that Sanders’ Fourth Amendment rights were violated because the cop opened fire without hearing a gunshot and without having a description of the suspect and without seeing any threatening behavior and without announcing himself as a cop when entering the bar.
He also argued that since he described Sanders as wearing “all black,” he was indicating that he had struck his intended target.
However, Judge Pepper pointed out that if the narrative provided by Sulton was true as to whether Sanders had taken the gun from Nellum, the cop would still be protected by qualified immunity because Sanders could have been viewed as the actual gunman who had fired the shot, forcing him to make a “split-second decision.”
“The plaintiff did not cite any case involving an officer who—after observing people fleeing in panic from a building and yelling that people are shooting inside—looks into the building, observes someone holding a gun and makes a split-second decision, in a fast-moving situation, to shoot at the person, let alone a case where a court has ruled that such conduct violates the Fourth Amendment as a matter of law,” Judge Pepper wrote.
Nellum, who survived the shooting, was sentenced to 16.5 years in 2020 after he was convicted of Sanders’ murder as well as being a felon in possession of a firearm, recklessly endangering safety, carrying a concealed weapon, and using a firearm while intoxicated.
In 2022, another judge dismissed another lawsuit on the basis of qualified immunity stemming from a Missouri cop shooting and killing an unarmed Black man named Ryan Stokes, who had been trying to de-escalate a confrontation between his friends and a group of white men who had accused them of stealing a cellphone.
His mother filed an appeal, but the United States Supreme Court refused to hear the case in 2023, affirming qualified immunity for the Kansas City cop who killed Stokes.
