Plaintiff, Theresa Mason-Funk, brought this action under
BACKGROUND
This case arises out of the tragic consequences of a horrendous crime committed by Brian Flatoff on December 5, 2015. At approximately 8:35 a.m. on that day, Brian Flatoff entered Eagle Nation Cycles, a motorcycle shop located at 206 Main Street in the City of Neenah, Wisconsin, with a loaded MAC-10 machine pistol and took Michael Funk, Ryan Moderson, Ethan Moderson, and Michael Petersen hostage. Pl.'s Proposed Findings of Fact (PPFOF) ¶ 1, ECF No. 32. Flatoff instructed Ryan Moderson to call Vance Dalton, with whom Flatoff had a dispute, and tell him to come to the motorcycle shop immediately. After placing the call, Moderson kept the telephone line with Dalton open, and Dalton relayed information about the situation to local authorities.
At approximately 8:56 a.m., Winnebago County Dispatch notified the NPD about a weapons call at Eagle Nation and reported that a shot had been fired. Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 24. The NPD alerted officers to the hostage situation and directed them to proceed to the scene. The responding officers included Lieutenant Shawn O'Bre; Officer Jonathan Kuffel, the NPD SWAT team leader; Officer Craig Hoffer, the assistant SWAT team leader; Officer Robert Ross; and Sergeant Angela Eichmann. Officers from the nearby City of Menasha Police Department also responded. PPFOF ¶ 12.
While en route to the scene, Lieutenant O'Bre learned there was a man inside Eagle Nation with a weapon and that he had several hostages. Beginning at 8:58 a.m., Officer Ross and other officers listening to the Main Channel dispatch learned that there were three possible hostages in the shop, that the hostage taker had a MAC-10 or MOC-10, and that the suspect was a white male with long hair and a beard, wearing a plaid jacket. DPFOF ¶¶ 8 12. The officers did not receive physical descriptions of any of the hostages.
Upon arrival at Eagle Nation, Lieutenant O'Bre advised area units to set up a perimeter around the shop. Shortly thereafter, dispatch informed the officers that an individual who was believed to be the shooter left the shop in a truck. Sergeant Eichmann and Officer Ross stopped the vehicle and identified the driver as Ethan Moderson, who left the shop undetected by Flatoff. Moderson confirmed that there was still a man in the shop with a gun. After the officers released Moderson, Lieutenant O'Bre asked Sergeant Eichmann to manage the perimeter and O'Bre began forming a "Hasty Team" consisting of Kuffel, O'Bre, Ross, Hoffer, and Lieutenant Tyrone Thompson to enter the shop
At approximately 9:21 a.m., the officers learned that Flatoff had threatened to start shooting if Dalton did not show up to Eagle Nation within five minutes.
A dashboard camera on a squad car parked at the west end of the alley facing in an easterly direction (Squad 1 video) captured the outdoor events that occurred next. ECF No. 25-2. The Hasty Team entered the shop at 9:42:07 a.m. PPFOF ¶ 31. Motorcycles and other items were scattered around the rear shop area, limiting the team's ingress. Shortly after the team entered the shop, Lieutenant Thompson and Lieutenant O'Bre fell down a set of stairs just inside the doorway. Upon entry, the officers called out in a loud voice: "Police," "get down," "get down on the ground right now," and "let me see your hands." DPFOF ¶ 34.
At the time the Hasty Team entered Eagle Nation, Funk was seated at a desk facing the rear entrance and Flatoff stood close to Funk. Funk dropped to the floor face down and Flatoff crawled behind Funk and began shooting at the Hasty Team. A bullet struck Officer Hoffer's helmet above his right eye around 9:42:14 a.m. PPFOF ¶ 34. Six seconds later, a bullet struck a fire extinguisher, releasing powder into the air and obscuring the officers' view. The Hasty Team initially returned fire but then quickly withdrew from the shop at approximately 9:43:02 a.m.
Once outside, the Hasty Team shоuted into the shop, which was met with more gunfire. DPFOF ¶ 52. Officers Kuffel and Hoffer thought at the time that there were no hostages inside Eagle Nation and instead believed the officers had walked into an ambush.
At approximately 9:45 a.m., Flatoff instructed Funk to close the shop's rear door, which the Hasty Team had left open, and warned Funk he would shoot him if he tried to escape. PPFOF ¶ 61. Funk proceeded to the door, started to close it, but then dove out of the shop onto the ground outside.
In the meantime, upon hearing the shots Flatoff had fired at Funk when he dove out the door, Officers Hoffer and Ross moved back toward the alley and joined City of Menasha Police Officer Raymond Berna, who was stationed at the southeast corner of Vicky's Beauty Salon, where they could see the rear door of the motorcycle shop.
From the time Funk exited Eagle Nation until he was shot, neither Officer Hoffer, Officer Ross, nor any other police officer gave him a warning or any sort of instruction.
After Funk was down in the alley, Officer Hoffer and Sergeant Eichmann discussed whether an officer should retrieve Funk to provide medical attention. Officer Hoffer instructed the officers to leave Funk because "he could care less right now if he sits there and dies." PPFOF ¶ 97. Officer Hoffer contends he chose not to retrieve Funk because the officers did not have proper equipment and cover if Funk was lying on the ground merely waiting for an opportunity to shoot at them. DPFOF ¶ 79. Funk ultimately passed away as a result of the shooting.
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). All reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette ,
ANALYSIS
A. Excessive Force
A claim that police officers have used excessive force "should be analyzed under the Fourth Amendment and its 'reasonableness'
Had it been Flatoff, or someone aligned with Flatoff, that exited the shop, gun in hand, and after briefly scanning his surroundings, begun to turn in the direction of the officers while moving across the alley, the use of deadly force by Officers Hoffer and Ross would clearly have been justified. Only three minutes earlier, Flatoff had opened fire on police, striking Officer Hoffer in his helmet just above the eye, as the officers had attempted to enter the shop in an effort to rescue the hostages whom Flatoff had repeatedly threatened to kill. Having returned to the alley at the sound of more shots being fired, and seeing the perpetrator turning in their direction or attempting to flee between the buildings across the alley from the shop, a reasonable police officer could justifiably conclude that deadly force was warranted.
Unfortunately, as we now know, the person who exited the shop minutes after Flatoff fired on police was not Flatoff or someone acting in concert with him. It was Funk, one of Flatoff's hostages. Officers Hoffer and Ross made a mistake, a tragic mistakе, but it does not follow that they violated Funk's Fourth Amendment rights. See Hill v. California ,
In affirming the district court's decision granting summary judgment in favor of Officer Kibler on the excessive force claim brought by Milstead's estate, the Court of Appeals noted that "a mistaken understanding of the facts that is reasonable in the circumstances can render a seizure based on that understanding reasonable under the Fourth Amendment."
The same reasoning applies here. Only three to four minutes earlier, police had been met with a barrage of gunfire as they attempted to rescue the hostages that Flatoff had threatened to begin killing within minutes. Indeed, Officer Hoffer had been struck in his helmet by a bullet. Officers Hoffer and Ross retreated behind the east wall of Vicky's Beauty Solon and only returned to the alley when they heard more shooting. By the time they arrived at the corner and saw him, Funk was already outside with his gun in hand and began turning counter-clockwise in their direction as he moved across the alley. The last thing they expected was that one of the hostages whose life Flatoff had been threatening for the last hour would be armed. In the split-second of time they had to make a decision before Funk was either out of their view or completely turned toward them, Officers Hoffer and Ross fired. Their mistake was tragic, but it was not unreasonable.
Plaintiff argues that the claim by Officers Hoffer and Ross that they were justified in using deadly force against Funk is objectively unreasonable for several reasons. First, Plaintiff argues that the view
The fact that there may also exist innocent explanations for the observations of Officers Kuffel and Hoffer, however, does not make their suspicions unreasonable. It is not unreasonable to think that, if a lone gunman is holding a group of people as hostages, he would keep them close together. Nor is it unreasonable to think that people who had been held at gunpoint by a person who had made several threats to kill them over the last hour would appear anxious and distressed. We now know, of course, that the fusillade of gunfire that met them was caused by Flatoff's MAC-10, but in the heat of the moment and based on their experience, it seemed to Kuffel and Hoffer like more than one person was firing at them. Finally and more importantly, regardless of what Officer Hoffer may have thought about the hostages at the time he entered the shop, it was Funk's possession of a gun upon exiting the shop so soon after Hoffer and the other officers had been fired on that led Hoffer and Ross to conclude that Funk could not have bеen a hostage and was a threat to the safety of the officers.
Plaintiff also criticizes Officers Hoffer and Ross for failing to comply with police standards. For example, Plaintiff cites the "Priorities of Life" standard under which the lives of innocent hostages are to be given priority above those of police officers in responding to hostage situations. Plaintiff notes that "it is standard police practice in hostage situations to operate on the assumption that any individual involved in such a situation is innocent until reliable evidence shows that he is a suspect." Pl.'s Mem. in Opp. at 17. Plaintiff offers the reports of several experts to the effect that Officers Hoffer and Ross violated this and other standards in assuming that Funk was a threat and in using deadly force without first warning him to drop his gun.
The standards cited by Plaintiff provide little guidance in this particular situation, however. What is "reliable evidence" that a person is a suspеct? Most of the standards cited do not speak to the specific situation where the potential suspect is armed. Under the circumstances in which they found themselves, Officers Hoffer and Ross obviously thought the fact that Funk had just come out of the shop where minutes earlier police had been met with a barrage of gunfire, and was turning in a counter-clockwise motion in their direction with a gun in his hand was "reliable evidence" that he posed an imminent and deadly threat. Are they required to wait for more evidence in the form of the suspect completing his turn and firing at them before they are justified in using deadly force? If so, no federal court has yet to say so, which raises the question of good faith immunity discussed below.
Finally, Plaintiff argues from an analysis of the video evidence, including a disputed synchronization of the Squad 1 video with the video taken by the dashboard camera in Squad 8, that Officers Hoffеr and Ross may have had as much as three to four seconds to assess the situation after they moved into the alley where they could see Funk before they began shooting. Although Funk was already outside of the shop and had his gun in hand by that time, Plaintiff argues that a reasonable jury could rationally conclude that the officers were not entitled to use deadly force. "Given the standard police practice of using deadly force only as a last resort, (PPFF 91), and the fact that [Funk] never pointed his pistol at Hoffer and Ross (or any other officer) and did not run toward them, (PPFF 63-77), the jury could conclude that a reasonable officer, viewing [Funk's] actions during that span of three to four seconds, (PPFF 73-78), would have concluded that he or she did not have enough information to support use of deadly force and should refrain from using it." Pl.'s Mem. in Opp. at 21.
Having arrived at the tragically mistaken but reasonable conclusion that Funk was Flatoff or someone acting in concert with him, however, the officers needed to act quickly to prevent him from escaping or causing serious injury or death to others. In their view, he had already made clear that he was willing to use deadly force against police only minutes earlier when he fired on them repeatedly as they attempted to rescue the hostages that were being held in the shop. Despite this understanding, Officer Hoffer initially thought that he had first ordered Funk to show his hands before he fired. Officer Ross, on the other hand, thought any warning at the time was not feasible. In the view of Officers Hoffer and Ross, waiting longer would have put at risk their lives or the lives of others. Though they turned out to be wrong, in fact tragically wrong, their mistake was reasonable under the circumstances they confronted.
Plaintiff argues that the fact that neither Menasha Police Officer Berna nor Sergeant Eichmann fired their weapons supports her аrgument that the use of deadly force was not justified. Both testified by deposition, however, that they were not in a position to shoot. Officer Berna was holding a shield and would have been in Officer Hoffer's way had he stood up. Berna Dep. 50:25 51:5, ECF No. 34-7. And Sergeant Eichmann testified that she lost sight of Funk when Ross arrived at her location. Eichmann Dep. 66:14 16, ECF No. 34-6. But even if they had elected not to shoot out of caution, it does not follow that Officers
This was not a case where police were confronted with a suicidal drunk seated in a lawn chair in his garage with a shotgun lying across his lap who voiced no threat to anyone but himself. See Weinmann v. McClone ,
B. Qualified Immunity
The doctrine of qualified immunity "balances two important interests the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan ,
"Although qualified immunity is a defense to a § 1983 suit, the burden of meeting the elements of this two-part test rests on the plaintiff." Spiegel v. Cortese ,
In recent years, the Supreme Court has "repeatedly told courts ... not to define clearly established law at a high level of generality" and has reversed federal courts in qualified immunity cases where the lower courts "wrongly subject individual officers to liability."
In its most recent term, the Supreme Court reaffirmed this messagе in White v. Pauly , --- U.S. ----,
Daniel brought suit against the officers, alleging that they used excessive force, and all three officers moved for summary judgment on qualified immunity grounds.
Before engaging the qualified immunity analysis, the Supreme Court remarked: "[I]t is again necessary to reiterate the longstanding principle that 'clearly established law' should not be defined 'at a high level of generality.' As this Court explained decades ago, the clearly established law must be 'particularized' to the facts of the case. Otherwise, '[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.' "
The panel majority [of the court of appeals] misunderstood the "clearly established" analysis: It failed to identify acase where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment. Instead, the majority relied on Graham , Garner , and their Court of Appeals progeny, which as noted above lay out excessive-force principles at only a general level. Of course, general statements of the law are not inherently incapable of giving fair and cleаr warning to officers, but in the light of pre-existing law the unlawfulness must be apparent. For that reason, we have held that Garner and Graham do not by themselves create clearly established law outside an obvious case.
This is not a case where it is obvious that there was such a violation of clearly established law under Garner and Graham . Of note, the majority did not conclude that White's conduct such as his failure to shout a warning constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that this case presents a unique set of facts and circumstances in light of White's late arrival on the scene. This alone should have been an important indication to the majority that White's conduct did not violate a "clearly established" right.
With this guidance in mind, the court must determine whether a constitutional rule applies with obvious clarity such that it placed the officers in this case on notice that their conduct was unlawful. Plaintiff relies on a collection of cases to demonstrate that the officers violated Funk's clearly established Fourth Amendment right to be free from excessive force. Although the cases relied upon by Plaintiff establish the contours of excessive force generally, none of these cases are factually similar to this case or define Funk's Fourth Amendment right with the specificity rеquired by the Supreme Court. Stated differently, no controlling case law exists involving sufficiently similar circumstances that would have put Officers Hoffer and Ross on notice that what they did violated a clearly established right.
Plaintiff points to Tennessee v. Garner for the proposition that the use of deadly force is permissible only when an officer could have held an objectively reasonable belief that the suspect posed an imminent threat to the officer or others, and in such a situation, deadly force may be used to "prevent escape only if, where feasible, some warning has been given."
The events in Wells did not involve a hostage situation. In that case, Harold Wells accompanied his friends to the residence of Shawn Robinson, without knowing that police were en route to Robinson's apartment as a result of Robinson placing a firearm to a woman's head earlier that evening.
Plaintiff's second case, Hulstedt v. City of Scottsdale , involved a situation where the plaintiff, an unarmed man, held his infant daughter hostage and threatened to "pile drive" her into the ground if the officers did not send his brother into the house.
Neither case adequately warns the officers in the instant case that their conduct violated a constitutionally-protected right because they do not remotely involve a situation similar to the instant case simply by virtue of the fact that the individuals in these cases were unarmed when the officers opened fire. Here, the parties do not dispute that Funk was armed with a pistol at the time he was shot, and he had just emerged from a building in which hostages were being held at gunpoint and one or more perpetrators had opened fire on police as they attempted a rescue operation. This alone is enough to establish that these cases do not "squarely govern" the factual circumstances present here. Brosseau v. Haugen ,
Plaintiff also references cases holding that the use of deadly force is unconstitutional when an individual, though armed, is not pointing his gun at the officer and there is no other indicia of an imminent threat. But again, these cases are not factually similar to the instant case. In Cooper v. Sheehan ,
In Baker v. Putnal ,
In Weinmann v. McClone , the plaintiff was arguing with his wife and then went out to his garage, drank half a bottle of vodka, and threatened to kill himself with a shotgun.
Again, these cases are factually distinguishable from the case at hand. Most importantly, the victims' conduct in Plaintiff's cases do not suggest that they posed a threat to thе officers or the public at large. They made no sudden movements, made no threats to officers, and ignored no police commands. Importantly, in these cases, the officers did not identify themselves as law enforcement before they opened fire they did not warn the victims that officers would use deadly force or give them an opportunity to surrender, even though the victims posed no present threat of danger.
By contrast, Officers Hoffer and Ross in the instant case were confronted with an active hostage situation. Although they were told there were at least three hostages in Eagle Nation, they did not get any information about the hostages' identities or a description of their appearances. The gunman inside the shop had already threatened to kill the hostages if Dalton did not show up, which clearly was not going to occur. Police were told that the suspect was armed with a gun, and thе responding officers and had already been fired upon by what they believed to be more than one person. When Funk appeared outside moments later after additional gunfire was heard coming from the shop, armed with a pistol and looking around in a manner suggesting that he was looking for a target, police reasonably concluded he was the person, or one of the persons, who had shot at them earlier and was likely to do so again. In short, the facts in this case are substantially different from those in Plaintiff's collection of cases. Plaintiff's cases are "inherently incapable of giving fair and clear warning" to Officers
II. State claims
Plaintiff has also asserted state law claims against Defendants. Retention of a plaintiff's state law claims is contrary to the usual practice. Under
CONCLUSION
Accordingly, for the reasons set forth above, it is hereby ordered that Defendants' motion for summary judgment (ECF No. 22) is GRANTED with respect to the federal claims, and such claims are DISMISSED . It is further ordered that the remaining state law claims are DISMISSED without prejudice. The Clerk is directed to enter judgment forthwith.