Bruce Kelley Jr.

Courtesy of the Kelley family

Bruce Kelley Jr. holds his niece, Aujalae “Lady Bug” Lyle.

An appellate court is allowing the lawsuit of a Washington County family that lost a member when two Allegheny County Port Authority police officers shot him to proceed.

The Third Circuit court vacated a federal judge’s previous decision to dismiss Bruce Kelley Jr.’s family’s excessive force claim against Sgt. Brian O’Malley and Officer Dominic Rivotti, who shot Kelley in Wilkinsburg, Allegheny County, on Jan. 31, 2016.

Police approached Kelley and his father because they were allegedly drinking alcohol outside in a gazebo.

Kelley walked away while officers dealt with his father, and drew the knife that he carried for protection because he was homeless.

Police went after him, and by the time O’Malley and Rivotti arrived with a trained German shepherd, more than a dozen officers had already “cornered” Kelley in front of a house, the decision notes.

He reportedly was refusing to drop the knife and threatened to defend himself if the dog attacked him. Kelley stabbed the dog when O’Malley went on to release it.

The Third Circuit judges said there were “fact questions about why the officers did not attempt to use alternative, less lethal means,” and it was possible that a “rational jury could conclude that (O’Malley’s and Rivotti’s actions) were beyond the bounds of reason.” Therefore, the lower court was mistaken in finding that the pair were protected by the “qualified immunity” that protects police officers from lawsuits over their “objectively reasonable” conduct.

“A jury could properly say, on these facts, that it was not at all reasonable for officers to shoot someone who they have cornered and set an attack dog on, when that person poses little threat to anyone, is vastly outnumbered by armed officers, and is only defensively wielding a knife,” the panel wrote.

Meanwhile, the appellate court affirmed the dismissal of other portions of the case, which Washington-based attorney Noah Geary filed for Kelley’s mother, Johnnie Mae Kelley, and sister, Calisia Kelley, both of Washington, in 2017.

Those aspects included claims against the county government, the Port Authority Police Department, Chief Matthew Porter and two unidentified officers.

The Allegheny County district attorney’s office previously said later in 2016 the officers’ use of force was justified.

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