Christine Almas Rose, Individually and as Mother of Jessie Lee Rose, et al. v. City of Utica, New York, et al.

Did the Second Circuit commit legal error when it granted qualified immunity to the police officer when: a. the officer’s testimony about being shot at is a lie, contradicting the objective facts; being shot at was a physical impossibility because the gun was pointing at the deceased as stated in the autopsy (the wadding and shell casing were in the deceased’s abdomen and in the shotgun wound) at the time of the shooting and the witnesses (including the officer) state that only one shot was fired from the shotgun; there was no second ejected shell in the vicinity of the deceased and the casing was still in the breach from the shot; b. Did not strike the officer’s testimony for untruthfulness; c. Said court found a reasonable apprehension of imminent harm when;

1. the deceased did not at any time threaten anybody and always pointed the gun barrel either in the air (in the ready position) or at himself and;

2. The officer admitted he could see that the gun slide and therefore the direction of the gun barrel, based on the objective evidence of the autopsy and the eyewitnesses (the shotgun wound, slugs, wadding, etc. were in the deceased Petitioner’s abdomen), indicates that the gun barrel was pointed at the Deceased Petitioner Jessie Rose and away from the officer and bystanders;

3. the eyewitnesses state that they felt safe and were not threatened;

4. The officer orders the person to stand, then shoots at him and misses, then orders him to drop