540 F.Supp.3d 815
E.D. Wis.2021Background
- On Oct. 19, 2018 Jonathon Tubby was arrested by Green Bay officers, handcuffed, placed in a patrol car, and later transported to the Brown County Jail sally port.
- While in the rear seat Tubby maneuvered his handcuffed hands to his front and put his right hand under his shirt, saying words interpreted as threats (“I’ll do it”), causing officers to believe he had a gun.
- Multiple GBPD and BCSO officers responded; officers broke out the patrol car’s rear windshield, deployed OC spray, used beanbag rounds and a K‑9; Tubby exited through the broken rear window, fell, rose, and moved toward the sally port.
- Officer Erik O’Brien fired five shots at Tubby within roughly ten seconds after Tubby exited the car; Tubby was unarmed when officers ultimately secured him and rendering aid was attempted.
- Plaintiffs (Tubby’s estate) sued under 42 U.S.C. § 1983 for excessive force (O’Brien), failure to intervene, Monell/failure‑to‑train (City and County and chiefs), state‑created danger, and related state claims; defendants moved for summary judgment.
- The district court granted summary judgment for all defendants on federal claims (dismissing them), denied supplemental jurisdiction over state claims (dismissed without prejudice), and ruled on evidentiary/housekeeping motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive‑force (O’Brien) | O’Brien used unreasonable deadly force on a subdued/handcuffed Tubby who was not armed. | O’Brien reasonably believed Tubby was armed and an imminent threat based on Tubby’s conduct, statements, and timing. | Granted for defendants — force was objectively reasonable under the circumstances. |
| Qualified immunity (O’Brien) | Law clearly established that shooting a subdued arrestee is unconstitutional. | No controlling precedent squarely governs these facts; split‑second decision entitles officer to immunity. | Granted — O’Brien entitled to qualified immunity in alternative. |
| Monell / failure to train (City & Chief Smith) | City and chief failed to train on extraction and excessive‑force avoidance; culture of dishonesty. | No municipal liability without an underlying constitutional violation by an employee. | Granted — Monell claim fails because no individual constitutional violation. |
| Failure to intervene (Deputies Mleziva & Winisterfer) | Deputies failed to stop O’Brien from using excessive force. | Deputies lacked realistic opportunity to intervene in the seconds between events. | Granted — no liability; deputies had no realistic time/opportunity to prevent the shooting. |
| Failure to train (County, Sheriff Delain, Capt. Michel) | County failed to train deputies on duty to intervene and related policies. | Municipal liability requires underlying officer liability which is absent. | Granted — claim fails with respect to federal law; official‑capacity claims redundant. |
| State‑created danger (Lt. Zeigle, City, County) | State actors created/increased danger by forcing Tubby from car and not using SWAT/negotiators. | Doctrine doesn’t apply where state actors themselves inflicted harm; conduct not conscience‑shocking. | Granted — claim fails on applicability/merits and on qualified immunity grounds. |
Key Cases Cited
- Tennessee v. Garner, 471 U.S. 1 (U.S. 1985) (deadly force permissible if officer has probable cause to believe suspect poses serious threat)
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (use‑of‑force claims judged by objective reasonableness under totality of circumstances)
- Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (reasonableness depends on officer’s reasonable belief that suspect was armed; evidence suspect was unarmed is often irrelevant)
- Kisela v. Hughes, 138 S. Ct. 1148 (U.S. 2018) (qualified immunity requires specificity; officers entitled to immunity absent precedent squarely governing facts)
- Mullenix v. Luna, 577 U.S. 7 (U.S. 2015) (courts must consider split‑second nature of police decisions when evaluating force and immunity)
- Sheehan v. City & County of San Francisco, 575 U.S. 600 (U.S. 2015) (officers’ split‑second judgments receive deference; importance of qualified immunity review)
- Harlow v. Fitzgerald, 457 U.S. 800 (U.S. 1982) (qualified immunity balances accountability and protection from litigation)
- Strand v. Minchuk, 910 F.3d 909 (7th Cir. 2018) (officer may not use force against a suspect who has become subdued and compliant)
- Weinmann v. McClone, 787 F.3d 444 (7th Cir. 2015) (context matters where firearm is visible but facts distinguishable from this case)
- DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (U.S. 1989) (no general constitutional duty to protect individuals from private harm; limits state‑created danger claims)