Michael Hugh Kelly protested against the war in Iraq during the Republican National Convention in St. Paul in September, 2008. He carried a banner, which was taken from him by police officers. He was shot, soon thereafter, with a “less-than-lethal marking round” in the lower torso. A “marked man,” he was arrested shortly thereafter. (The opinion of U.S. District Court Judge John R. Tunheim (D. Minn.) points out, incidentally, that being hit by a “less-than-lethal marking round” feels “roughly similar to [to being hit by] a ‘professionally-thrown baseball.’”)
The issue in the case is whether the Cities of Minneapolis and St. Paul, the police officers involved, specifically Officers Lucas Peterson, Ernster and unnamed officers “A-J,” deprived Kelly of his constitutional rights or were they just trying to do their job in the face of an unruly anarchic crowd.
Kelly survived defendants’ motions for summary judgment, but just barely. Judge Tunheim awarded defendants summary judgment on many of Kelly’s claims. While holding that it is a close question, however, Judge Tunheim will let the “excessive force” claim go to trial.
How the testimony will play out at trial is anyone’s guess (or at least the province of those with greater knowledge of the testimony and evidence in the case than Minnesota Litigator) but it appears from Judge Tunheim’s opinion that Kelly’s claim will difficult to win (and, regardless, would likely face a spirited appeal if he were to prevail at trial).