296 F. Supp. 3d 1006
E.D. Wis.2017Background
- On Dec. 5, 2015 Brian Flatoff entered Eagle Nation Cycles with a MAC-10, took several people hostage, and fired on police during an attempted rescue.
- Responding Neenah officers formed a "Hasty Team" and entered the shop; officers were fired upon and Officer Hoffer was struck in the helmet.
- Minutes later Michael Funk, a hostage, exited the shop carrying a handgun; he ran/turned across the alley toward officers while holding the gun.
- Officers Hoffer and Ross fired repeatedly at Funk over a ~5-second span, striking and killing him; no verbal warning was given immediately before shooting.
- Plaintiff (Funk's wife/personal representative) sued under 42 U.S.C. § 1983 (excessive force) and asserted state wrongful-death claims; defendants moved for summary judgment.
- The court granted summary judgment for defendants on the federal claim (including qualified immunity) and dismissed the state-law claims without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force under the Fourth Amendment | Shooting an armed hostage was unreasonable; officers had time (3–4 sec) to assess, gave no warning, and should prioritize hostages | Officers reasonably (though mistakenly) believed Funk was the shooter who had just fired on them and posed an imminent threat | Use of force was objectively reasonable given split-second risk; no Fourth Amendment violation |
| Qualified immunity | Existing law required warnings / distinguished hostage protections and put officers on notice their conduct was unlawful | No controlling precedent with similar facts; reasonable officers in these unique, rapidly evolving circumstances lacked fair warning | Officers entitled to qualified immunity; right not "clearly established" in these circumstances |
| State-law wrongful-death and battery claims | State claims remain viable against officers / city | Federal claims resolved; district court should decline supplemental jurisdiction | State claims dismissed without prejudice (district court declines supplemental jurisdiction) |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (use-of-force standard: objective "reasonableness" under the Fourth Amendment)
- Tennessee v. Garner, 471 U.S. 1 (deadly force permissible only for imminent threat; warning when feasible to prevent escape)
- Hill v. California, 401 U.S. 797 (reasonable mistake regarding identity can validate seizure)
- Brosseau v. Haugen, 543 U.S. 194 (qualified-immunity analysis; need for factually similar precedent)
- Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework)
- White v. Pauly, 137 S. Ct. 548 (clearly established law must be particularized; late-arrival/unique circumstances protect officers)
- Milstead v. Kibler, 243 F.3d 157 (4th Cir.) (officer reasonably mistaken identity in active-shooting context; summary judgment for officer)
- Ashcroft v. al-Kidd, 563 U.S. 731 (clearly established standard; existing precedent must place question beyond debate)
- Weinmann v. McClone, 787 F.3d 444 (7th Cir.) (deadly force on suicidal/unthreatening individual unreasonable)
- Cooper v. Sheehan, 735 F.3d 153 (4th Cir.) (armed but nonthreatening suspect: warning and context matter for clearly established violation)