Opinion
Case No. 18-CV-2179
2021-03-23
Lonnie MITCHELL, Plaintiff, v. CITY OF DECATUR and Andrew Wittmer, Defendants.
Basileios John Foutris, Foutris Law Office Ltd., Daniel P. Kiss, Meyer & Kiss LLC, Chicago, IL, Louis J. Meyer, Meyer & Kiss LLC, Peoria, IL, for Plaintiff. Jerrold H. Stocks, Featherstun Gaumer Stocks Flynn & Eck, Decatur, IL, for Defendant Andrew Wittmer. John T. Robinson, City of Decatur, Decatur, IL, for Defendant City of Decatur.
Basileios John Foutris, Foutris Law Office Ltd., Daniel P. Kiss, Meyer & Kiss LLC, Chicago, IL, Louis J. Meyer, Meyer & Kiss LLC, Peoria, IL, for Plaintiff.
Jerrold H. Stocks, Featherstun Gaumer Stocks Flynn & Eck, Decatur, IL, for Defendant Andrew Wittmer.
John T. Robinson, City of Decatur, Decatur, IL, for Defendant City of Decatur.
ORDER
COLIN S. BRUCE, U.S. DISTRICT JUDGE
Plaintiff, Lonnie Mitchell, filed a Complaint (#1) pursuant to 42 U.S.C. § 1983, alleging that Defendants City of Decatur and Officer Andrew Wittmer violated his right to be free from excessive force under the Fourth Amendment to the United States Constitution. Defendants filed a Joint Motion for Summary Judgment (#27) on April 30, 2020, to which Plaintiff filed a Response (#28) on May 20, 2020. Defendants filed a Reply (#29) on June 4, 2020. For the following reasons, Defendants’ Joint Motion for Summary Judgment (#27) is DENIED.
BACKGROUND
The following background facts are taken from Defendants’ Undisputed Statement of Material Facts, Plaintiff's Additional Facts section in his Response, and the exhibits attached by the parties to their filings.
This case arises from a police-involved shooting that occurred in Decatur, Illinois, on July 11, 2016.
Officer Wittmer's Arrival at the Scene
On July 11, 2016, Defendant Officer Andrew Wittmer ("Wittmer") responded to a call in the location of Hilton and Main Streets in Decatur, Illinois, shortly after 1:00 am. The call came from a Derondi Lee. In the call, Lee said that, at that moment, there was a person at the house next door, "Honey Bun's" house. Lee said this person was not wearing a shirt and had a "bag of [sic] backpack full of weapons" and a "big Government .45," which Wittmer understood to be a model 1911 .45 caliber handgun. In his phone call with Wittmer, Lee did not say anything about an argument or disturbance involving this person . Wittmer considered Lee to be a relatively reliable source of information. Before the July 11, 2016, incident, Wittmer had no idea who Plaintiff was, what Plaintiff's name was, and never had any contact with him at all.
It is not entirely clear from the record just what Wittmer knew before the encounter with Plaintiff. In one of part of his deposition, quoted above, Wittmer testified that the only information he had relating to Plaintiff was what Lee told him about the .45 and backpack. However, in the video, Wittmer tells the partygoers he is responding to a call about an argument between a man and a woman. Wittmer testified he was being "intentionally vague" in telling the partygoers that he was responding to a call about a "disturbance."
Plaintiff's Actions Before Wittmer's Arrival
Plaintiff admitted that, before Wittmer's arrival on the scene, he had an argument with Honey Bun. After the argument with Honey Bun, Plaintiff went next door to Derondi Lee's house to "cool off." Plaintiff carried on his person a work knife, which was covered in electrical tape and putty, sheathed in a wrist-guard on Plaintiff's right arm. Tucked into Plaintiff's waist was a BB/pellet gun that he carried to protect himself against stray dogs. After arriving at Lee's house and before the shooting, Plaintiff placed the BB/pellet gun into his waistband, where the gun was visible.
Before Wittmer's arrival, Lee told Plaintiff that the police were coming. Unbeknownst to Plaintiff, Lee had "unexpectedly" called Wittmer to tell Wittmer that there was a person next door at Honey Bun's house with weapons.
Plaintiff left Lee's home in order to go to his own home. Plaintiff testified that as he left Lee's home, he could hear, but could not see, a police officer speaking with people next door at Honey Bun's home.
Wittmer's Arrival
Wittmer arrived on the scene around 1:08 am. When Wittmer arrived, there was nothing going on except a few people drinking in Honey Bun's driveway. Wittmer testified that this "actually would be the opposite of a problem from that neighborhood[,]" as "[n]ormally there would be dozens of people out[,]" and it "would be extremely loud and boisterous."
Upon arrival, he activated his recording equipment and engaged the people remaining outside Honey Bun's residence. While Wittmer was engaging those persons, Plaintiff exited Lee's residence, walking west towards Wittmer's parked squad car, which drew Wittmer's attention. Plaintiff fit the description provided to Wittmer by Lee. Plaintiff was not wearing a shirt and the gun was plainly visible to Wittmer in Plaintiff's waistband.
What the Video Shows
The court has viewed the video recorded on the camera from Wittmer's squad car. The video is grainy, and it is not easy to make out small details.
Wittmer arrives and makes contact with people on the driveway of Honey Bun's house at 1:08:48. Wittmer tells one of the people on the driveway that he has been called out for an argument between a man and woman. At 1:09:00, Wittmer can be heard speaking with the people in the driveway, asking them to keep their hands out of their pockets.
At around 1:09:08, Plaintiff can be seen coming from the house next door to Honey Bun's and walking into the street. Due to the graininess of the video, it is not possible to distinguish details on Plaintiff's body, such as the knife or gun. At this point, Wittmer is still in Honey Bun's driveway speaking with people.
At 1:09:13, Plaintiff is walking in the middle of the street, and Wittmer calls out "hey sir" to Plaintiff. Wittmer begins walking toward Plaintiff. At 1:09:15, Plaintiff says "yes?" in response to Wittmer. At 1:09:17, Defendant says "Come here. Stop!" to Plaintiff. At 1:09:18, Plaintiff walks off camera. Plaintiff does not come back into view of the camera for the rest of the video. Wittmer at this point advances towards Plaintiff, pointing his service weapon and flashlight in Plaintiff's direction. Wittmer is now a few feet into the street off of Honey Bun's driveway.
At 1:09:20, Wittmer tells Plaintiff to stop and to put his hands on top of his head. At 1:09:26, Wittmer tells Plaintiff to "interlock" his fingers on top of his head.
At 1:09:29, Plaintiff tells Wittmer he has a "pistol" on his person, and a knife on his person. At 1:09:33, Wittmer tells Plaintiff to "leave" his "hands up." At 1:09:35, Wittmer tells Plaintiff "don't go for that or you'll get shot man."
At 1:09:38-39, Plaintiff again states that he has a knife and a pistol on his person. At 1:09:41, Plaintiff tells Wittmer to come "grab it," presumably referring to the pistol. At 1:09:43, Wittmer tells Plaintiff that he is not going to come "grab it," and that he wants Plaintiff to "lay down."
At 1:09:45-47, a woman can be heard in the background, presumably on Honey Bun's driveway, telling Plaintiff to lay down and do what Wittmer is telling him to do. At 1:09:48, Wittmer again tells Plaintiff to interlock his fingers behind his head. At 1:09:50, other people in the background can be heard telling Plaintiff to lay down. At that same time, Wittmer takes a couple of steps forward, and tells Plaintiff to "listen to me." At 1:09:54 Plaintiff yells back "I cannot. I have a knife, on my hand!"
At 1:09:55, Officer Jason Danner comes into view on the camera, also pointing a gun at Plaintiff. Danner never discharges his weapon.
At 1:10:00 Wittmer yells "no, put your hands up, away from that." At 1:10:02-03, a "clinking" sound can be heard, presumably Plaintiff's knife hitting the ground. At 1:10:03, Wittmer again tells Plaintiff to "lay down." At 1:10:05, Wittmer yells at Plaintiff to lay down. At 1:10:06, Wittmer shoots Plaintiff.
Elements of the Encounter Not Shown on the Video
Plaintiff did not believe that Wittmer could see the knife, and, in fact, Wittmer did not know that Plaintiff had a knife on his person at the time.
Plaintiff never told Wittmer that the gun was a BB/pellet gun. Plaintiff agreed that the pistol looked like a real firearm. Wittmer first discovered that the gun was a BB/pellet gun when he recovered it after the shooting and was placing the gun into his squad car.
Plaintiff testified that he kept his hands straight up in the air during the interaction with Wittmer so that Wittmer would not misconstrue him doing anything that could be perceived as reaching for something. Plaintiff was underneath a street light during the entire encounter.
Plaintiff testified that he did understand what Wittmer was saying to him at the time of the shooting.
After telling Wittmer that he could not put his hands behind his head because of the knife, Plaintiff testified that he slowly moved his left arm toward his right arm - thereby forming an "A" shape with his body - in order to unsnap the knife from his hand. Plaintiff flicked a strap, whereupon the knife fell to the ground. Wittmer heard the knife hit the ground.
Wittmer testified that Plaintiff was walking away from him while he was approaching Plaintiff with commands for Plaintiff to stop for approximately 9 seconds.
The Parties’ Different Versions of the Moments Before the Shooting
Wittmer
Wittmer testified that, after the knife hit the ground, he was giving Plaintiff commands to get on the ground, but that Plaintiff's "gestures [were] getting larger with his hands." Wittmer described Plaintiff as "angry" and that Plaintiff was yelling that "he cannot[.]" Wittmer testified that Plaintiff was "gesturing" as Plaintiff was talking, while at the same time Wittmer was giving him commands to get down on the ground. Instead of reaching forward to put his hands on the ground, Wittmer testified that Plaintiff brought "his right hand in as if to draw the weapon." Wittmer testified that Plaintiff's right hand went "[d]own and in towards the area of his waist where he had the firearm." As soon as he observed that happening, Wittmer fired his weapon, "believing [Plaintiff] was reaching to draw that firearm either to use it against me or whoever was behind me."
Plaintiff
Plaintiff testified that as soon as he heard Wittmer call for him to stop, he turned around and put his hands in the air, as if he were motioning for a field goal in football. However, this is not on the video. Plaintiff does turn around and acknowledge Wittmer, but his hands were not yet up by the time he moves off camera.
Plaintiff testified that after he unhooked the knife, he placed his left hand back to where it had been positioned - above his head.
Plaintiff testified that he never made any movement towards his waist or the gun before he was shot and that, other than removing the knife, he was standing motionless during his encounter with Wittmer and Danner. Other witnesses to the shooting, Lawson Gomiller ("Honey Bun"), Cedric Gomiller, Cerinity Gomiller, and Marcus Johnson similarly testified that, after releasing the knife, Plaintiff did not make any further movements with his hands, or move his hands toward his waist.
Plaintiff testified that, as soon as he unlatched the knife and it fell to the ground, he was shot. The shooting happened as soon as Plaintiff heard the "tink" from the knife hitting the ground.
Plaintiff testified he could not comply with the commands to lay down because doing so would require him to drop his hands.
After the Shooting
Medical assistance was rendered to Plaintiff at the scene due to his injuries from the shooting. Plaintiff survived the shooting.
At the time of the shooting, apart from the physical description provided by Derondi Lee, Wittmer had no idea who Plaintiff was, and had never before interacted with him.
Photographs Attached to Defendants’ Motion As Exhibits
Attached to Defendants’ motion is a photograph of Plaintiff's knife, sheathed in a cuff attached to his right arm. Also attached is a photograph of Plaintiff's pellet gun, which appears, for all intents and purposes, to be a real handgun. Also attached is a picture of Plaintiff with the gun in the front of his waistband. On the night of the shooting, the handle of the gun would have been visible.
Wittmer and Danner both testified that an officer cannot just shoot someone because they believe the individual has multiple weapons on their person. Wittmer testified that, if Plaintiff had flicked off the knife and just stood there with his hands above his head while motionless, there would be no justification for the use of deadly force.
ANALYSIS
In their summary judgment motion, Defendants contend that Wittmer is entitled to qualified immunity. Defendants argue that the undisputed facts, even taking as true Plaintiff's assertion that he was not reaching towards his waist at the time of the shooting, establish that Wittmer's use of force was reasonable under the circumstances. Defendants further argue that, even assuming arguendo that Wittmer's use of force was unreasonable, the then-existing federal case law in July 2016 did not clearly establish that a reasonable officer would know that the use of force in these circumstances violated Plaintiff's Constitutional rights.
Summary Judgment Standard
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a district court "has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Singer v. Raemisch , 593 F.3d 529, 533 (7th Cir. 2010). However, a court's favor toward the nonmoving party does not extend to drawing inferences which are only supported by speculation or conjecture. See Singer , 593 F.3d at 533. In addition, this court "need not accept as true a plaintiff's characterization of the facts or a plaintiff's legal conclusion." Nuzzi v. St. George Cmty. Consol. Sch. Dist. No. 258 , 688 F. Supp. 2d 815, 835 (C.D. Ill. 2010) (emphasis in original).
The party opposing summary judgment may not rely on the allegations contained in the pleadings. Waldridge , 24 F.3d at 920. "[I]nstead, the nonmovant must present definite, competent evidence in rebuttal." Butts v. Aurora Health Care, Inc. , 387 F.3d 921, 924 (7th Cir. 2004). Summary judgment "is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Koszola v. Bd. of Educ. of City of Chicago , 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Johnson v. Cambridge Indus., Inc. , 325 F.3d 892, 901 (7th Cir. 2003). Specifically, to survive summary judgment, the nonmoving party "must make a sufficient showing of evidence for each essential element of its case on which it bears the burden at trial." Kampmier v. Emeritus Corp. , 472 F.3d 930, 936 (7th Cir. 2007), citing Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548.
Qualified Immunity
Qualified immunity is an immunity from suit rather than a mere defense to liability. Pearson v. Callahan , 555 U.S. 223, 237, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson , 555 U.S. at 231, 129 S.Ct. 808. The U.S. Supreme Court has mandated a two-step sequence for resolving government officials’ qualified immunity claims: (1) a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) if the plaintiff has satisfied this first step, the court must decide whether the right at issue was "clearly established" at the time of defendant's alleged misconduct. Pearson , 555 U.S. at 232, 129 S.Ct. 808. Judges of the district courts and the courts of appeals are permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first, in light of the circumstances in the particular case at hand. Pearson , 555 U.S. at 236, 129 S.Ct. 808.
What Facts the Court Will Consider
The court must determine whether the facts, taken in the light most favorable to Plaintiff, depict a violation of Plaintiff's Fourth Amendment right to be free from excessive force. See Weinmann v. McClone , 787 F.3d 444, 448 (7th Cir. 2015). Thus, because the court is considering a claim of qualified immunity on summary judgment, where the facts are in dispute or left open, the court will accept Plaintiff's version of the facts, without vouching for their ultimate accuracy. See Weinmann , 787 F.3d at 446. However, this case does have video of the incident. When video footage firmly settles a factual issue, there can be no factual dispute about it, and the court will not indulge factual assertions that clearly contradict the video. See Horton v. Pobjecky , 883 F.3d 941, 944 (7th Cir. 2018). Of course here, as in other cases, the video is sometimes unclear and incomplete, and thus can be open to varying interpretations. See Horton , 883 F.3d at 944.
Although the court accepts Plaintiff's version of conflicting facts, excessive force cases such as this one are evaluated for objective reasonableness based on the information the officers had at the time. Horton , 883 F.3d at 949-50. Further, the belief of Defendant Wittmer and Officer Danner that the use of deadly force was not justified if Plaintiff was not reaching for his gun and that they cannot shoot someone just because they have multiple weapons on their person, is irrelevant to the court's analysis. "The actual officer's subjective beliefs and motivations are irrelevant[,]" as " ‘an officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.’ " Horton , 883 F.3d at 950, quoting Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Whether Wittmer's Actions Constituted Excessive Force Under the Fourth Amendment
The court first looks to whether a genuine issue of material fact exists as to whether Wittmer's decision to use deadly force on Plaintiff constitutes excessive force under the Fourth Amendment.
It is well established that a police officer's use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable. Siler v. City of Kenosha , 957 F.3d 751, 757-58 (7th Cir. 2020). In Tennessee v. Garner , 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the U.S. Supreme Court held that it was constitutionally reasonable for a police officer to prevent escape by using deadly force when the suspect poses a threat of serious physical harm to the officer or to others. Kisela v. Hughes , ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449, citing Garner , 471 U.S. at 11, 105 S.Ct. 1694. The Court elaborated on the deadly force analysis in Graham v. Connor , 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), where it held that the question of whether an officer had used excessive force depended on the facts and circumstances of each case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Kisela , 138 S.Ct. at 1152, citing Graham , 490 U.S. at 396, 109 S.Ct. 1865 ; see also Siler , 957 F.3d at 759 (there can be no question that deadly force may be used if the officer has probable cause to believe that the armed suspect (1) posed a threat of serious physical harm, either to the officer or to others, or (2) committed a crime involving the infliction or threatened infliction of serious physical harm and is about to escape).
The standard is an objective one, in which the court assesses the totality of the circumstances from the perspective of a reasonable officer on the scene. Siler , 957 F.3d at 759, citing Graham , 490 U.S. at 396, 109 S.Ct. 1865. In seeking to understand the perspective of the officer, the court considers: the information known to the officer at the time of the encounter; the duration of the encounter; the level of duress involved; and the need to make split-second decisions under intense, dangerous, uncertain, and rapidly changing circumstances. Siler , 957 F.3d at 759.
Importantly, courts must remember that:
Law enforcement officers on the scene do not have the luxury of knowing the facts as they are known to us, with all the benefit of hindsight, discovery, and careful analysis. Officers must act reasonably based on the information they have. We must always keep in mind that encounters in the field require officers to make split-second decisions of enormous consequence.
Siler , 957 F.3d at 759
Thus, if a reasonable officer in Wittmer's shoes would have believed Plaintiff posed an imminent threat of serious physical harm, or that he had committed a crime involving serious physical harm and was about to escape, Wittmer's use of force was reasonable. See Siler , 957 F.3d at 759.
The court is mindful that it is sitting safely in judgment of these facts from afar, long after the smoke has cleared, with the luxury of pausing, rewinding, and playing the video at its leisure while taking time to contemplate its decision, a luxury that Wittmer, for whom events "unfolded in heart-pounding real time, with lives on the line[,]" did not have. See Horton , 883 F.3d at 950.
The Graham Factors
As an initial matter, the court finds inapplicable an analysis of whether Plaintiff was attempting to evade arrest by flight. He clearly was not. He stopped walking seconds after Wittmer called to him, and there is no evidence he attempted to run away or evade apprehension by Wittmer.
Concerning the first factor, the "severity of the crime at issue," Wittmer was called to the scene because of a report from Derondi Lee of someone with a .45 caliber handgun and a backpack "full of weapons." Based on the video, Wittmer may have known there was an argument between a man and a woman. However, Wittmer was not aware of any actual violence or threat of violence having taken place. This was not an assault or battery, violent robbery, murder, or carjacking. No shots had been fired. There is no evidence that Plaintiff had committed a crime involving the infliction or threatened infliction of serious physical harm and was about to escape. See Siler , 957 F.3d at 759.
Perhaps the most important factor in the court's analysis is whether Plaintiff posed an immediate threat to the safety of officers Wittmer and Danner and the bystanders behind Wittmer. See Pekrun v. Puente , 172 F.Supp.3d 1039, 1045 (E.D. Wisc. 2016), citing Young v. County of Los Angeles , 655 F.3d 1156, 1166-67 (9th Cir. 2011) ("Our conclusion comports with the logical notion that it is rarely necessary, if ever, for a police officer to employ substantial force without warning against an individual who is suspected only of minor offenses, is not resisting arrest, and, most important , does not pose any apparent threat to officer or public safety.") (emphasis added).
As noted above, Plaintiff was armed. However, the mere possession of a firearm by a suspect is not enough to permit the use of deadly force, and several facts the court must take as true for summary judgment purposes show Plaintiff did not pose a threat of imminent physical harm. See White v. City of Topeka , 489 F.Supp.3d at 1233, citing Cooper v. Sheehan , 735 F.3d 153, 159 (4th Cir. 2013). For the entire encounter, the gun was tucked in Plaintiff's front waistband. He never held the gun, nor did Plaintiff make any move to take the gun out of his waistband. Plaintiff never advanced on Wittmer, nor did Plaintiff ever make any threatening gestures or comments toward Wittmer. Plaintiff did tell Wittmer to "come get it[,]" but that does not appear to be a threat, and, because the court must make all reasonable inferences in Plaintiff's favor at summary judgment, could be construed as a request that Wittmer take the gun out of Plaintiff's possession. Plaintiff did move his hand to take the knife out of the wrist cuff, but that was to drop it to the ground. Wittmer heard the knife hit the ground, which can also be heard on the video.
Further, Wittmer had never met Plaintiff before this encounter, and did not know of him, and thus had no knowledge of any violent propensities Plaintiff might have had. Wittmer told the partygoers there had been a report of a disturbance or argument between two people, but Wittmer had no reports from Derondi Lee that Plaintiff had made threats to anyone that night, or had been involved in any violent altercation or criminal activity that night, or at any prior time.
One factor that is a wash in terms of the threat is the physical distance between Wittmer and Plaintiff. This was not a tight, confined space where Wittmer's range of motion was limited. The shooting took place outside on a city street, with Plaintiff several feet away from Wittmer. Still, the fact that Plaintiff had a gun negates any argument that the distance between Plaintiff and Wittmer lessened any threat of physical harm to Wittmer or the bystanders behind him. A gun is just as lethal at ten feet as it is at one.
Finally, it could be said that Plaintiff's failure to comply with Wittmer's orders to drop the gun and/or lie down on the ground constituted resisting arrest. However, such actions on Plaintiff's part, if qualifying as resistance, are passive resistance, not the active resistance required by Graham to justify the use of deadly force. Graham , 490 U.S. at 396, 109 S.Ct. 1865 ("... whether he is actively resisting or attempting to evade arrest by flight.") (emphasis added); Strand v. Minchuk , 910 F.3d 909, 917 (7th Cir. 2018) (beyond debate that a person has a right to be free from deadly force unless he is "actively resisting arrest and the circumstances warrant that degree of force.") (emphasis added). Concerning the distinction between "active resistance" and "passive resistance," the Seventh Circuit has written:
It is also clear that Phillips was never "actively resisting arrest," a touchstone of the Graham analysis. 490 U.S. at 396, 109 S.Ct. 1865. Phillips never exhibited any sort of aggressive behavior toward the officers before or after they located her car, nor did she make any attempt to escape. The officers argue that Phillips demonstrated continuous "defiance" by failing to follow their commands to exit the vehicle. This characterization strains credulity given the circumstances. But viewing the evidence in the light most favorable to the defendants, we presume that the officers reasonably believed that Phillips heard their orders and chose not to obey. Even so, leaving oneself exposed to repeated police fire does not represent "active resistance." To the extent that Phillips's perceived conduct could be considered "resistance" at all, it would have been passive noncompliance of a different nature than the struggling that we have found warrants escalation of force. Indeed, in Smith , we noted this distinction, finding that what the officers perceived as willful noncompliance was not the same as "actively resisting" but instead a passive "resistance requiring the minimal use of force. "
Phillips v. Community Ins. Corp. , 678 F.3d 513, 524-25 (7th Cir. 2012), quoting Smith v. Ball State University , 295 F.3d 763, 771 (7th Cir. 2002) (emphasis in original in Phillips ).
Thus, under Phillips , Plaintiff's actions, or inaction, in response to Wittmer's commands, are best characterized as passive noncompliance of a different nature than the active resistance of "struggling" that the Seventh Circuit has found warrants escalation of force. See Phillips , 678 F.3d at 524-25.
The court acknowledges that several facts from the encounter do favor a finding of reasonableness. Foremost among them was the fact that Plaintiff appeared to be armed with a real gun. Although it turned out to be a pellet/BB gun, the gun looked real to Wittmer, and Plaintiff conceded as much. Second, Wittmer gave Plaintiff a verbal warning with which Plaintiff failed to comply.
Case Law
The court has found several Seventh Circuit and district court cases to be instructive and persuasive.
In Weinmann v. McClone , 787 F.3d 444 (7th Cir. 2015), the police were called to the home of Jerome Weinmann by his wife Susan. Susan said her husband was in the garage threatening to kill himself, and that he had access to a long rifle. Within minutes of arriving at the Weinmann home, officer McClone decided forced entry was necessary. He peered into the garage from the window, but could not see Jerome. He then knocked on the door to the garage, but received no response. McClone did not try to speak to Jerome through the door. McClone decided to make an unannounced entry to the garage after hearing something that sounded like pattering on cupboard doors and fearing that Jerome was about to commit suicide.
McClone kicked in the door. Jerome was sitting in a lawn chair with the shotgun across his lap, resting on the armrests. Jerome said he never pointed the gun at McClone or did anything to make McClone believe that the officer or anyone else was at risk of harm. McClone also recalled that Jerome never pointed the gun at him, but stated that he "perceived" the weapon as being pointed in his direction. McClone shot Jerome four times, but Jerome survived. The district court denied McClone's motion for summary judgment, finding that a material dispute of fact precluded qualified immunity.
The Seventh Circuit affirmed. At the outset of its analysis, the court recognized that "a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force." Weinmann , 787 F.3d at 448. Despite McClone knowing that Jerome had access to a firearm and maybe ammunition, was suicidal, did not want to talk to the dispatcher, and had made noise inside the garage, such facts fell short of suggesting anything more than that Jerome was putting himself in danger, because neither Susan nor Jerome told the dispatcher Jerome was going to harm the responding officer, and Jerome did not threaten McClone when he arrived. Weinmann , 787 F.3d at 449.
The Seventh Circuit also rejected McClone's argument that McClone believed his life was in danger because of the way Jerome was holding the gun, finding that the way Jerome was holding the gun was disputed, concluding:
Our task is to determine, under Jerome's version of the facts, if McClone was objectively reasonable in his belief that his life was in danger. At the moment McClone kicked down the door and saw Jerome, McClone only knew the four relevant facts we reviewed earlier. Those facts are not enough to justify the instant use of deadly force. It does not matter for purposes of the Fourth Amendment that McClone subjectively believed that his life was in danger. The test is an objective one, and taking the facts as Jerome presents them, it is not met.
Weinmann , 787 F.3d at 449.
The court went on to note that, if Jerome had the gun raised to his shoulder and pointed at McClone, then McClone would have been justified in using deadly force and thus entitled to qualified immunity. Weinmann , 787 F.3d at 449-50.
In Williams v. Indiana State Police Department , 797 F.3d 468 (7th Cir. 2015), decided four months after Weinmann , police were once again called to the home of an armed man threatening suicide. Nancy Brown, the mother of 22-year old John Brown, called 911 and told the dispatcher that her son was attempting to commit suicide and had a knife, and that there were no other weapons in the bedroom. She also informed dispatch that John was bipolar, was not taking his medicine, was drinking heavily, and had cut himself in the past. Deputy Such arrived first, spoke with Nancy, and then went to the door to John's room and identified himself. Such claims John responded "fuck you" but Nancy said he did not respond in that way. Shortly thereafter Deputy Blanchard arrived. Within two minutes of Blanchard's arrival, Blanchard had shot and killed John.
Blanchard spoke with Nancy, and then with Such. Blanchard removed his gun from its holster and proceeded to John's door, while Such went outside and looked through John's bedroom window. Blanchard declined Nancy's offer of a key, deciding instead to kick in the door so that John would not have time to access any other weapons. Nancy then went downstairs to a sofa, not able to see the subsequent events, but she could hear them.
According to Blanchard, he kicked down the bedroom door and then took a step back to position himself. Such then ran back into the mobile home and positioned himself behind Blanchard, drawing his taser in the process. They observed John sitting at the computer desk. Blanchard ordered John to show his hands, but John briefly glanced at Blanchard and ignored the order. Blanchard repeated the order and John again ignored it. John then stood up and turned toward the officers in a "Frankenstein-like" manner. They observed blood on John's left arm, and he was holding a folding knife in his hand. John gave them a "thousand-yard stare," walked to the bedroom door and slammed it closed. Blanchard immediately kicked the door in a second time, pointed the gun at John who was halfway between the door frame and his desk, and ordered John to drop the knife. John told Blanchard that Blanchard would have to shoot him, and then, according to both deputies in yet another similar description, John "rolled his shoulders forward," started moving the knife "in an upward position" and began advancing towards Blanchard. When John was within 5 or 6 feet of Blanchard, Blanchard fired two shots at him resulting in his death.
Nancy stated that she did not hear Blanchard tell John to drop the knife, but before Blanchard kicked in the door, she heard one of the deputies call John's name twice. She heard John say "fine, come in and shoot me between the eyes and kill me." She then heard the door being kicked, slammed shut, and kicked in a second time, followed directly by two gunshots. In Nancy's version, after the door was kicked in the second time, John was never ordered to drop his knife and did not state that the deputies would have to kill him. The district court denied qualified immunity for Blanchard.
On appeal, Blanchard argued that, even absent John advancing on him with the knife, John's possession of the knife in the circumstances described were sufficiently threatening that Blanchard was entitled to qualified immunity.
The Seventh Circuit rejected Blanchard's argument. The court began its analysis by noting that it is well-established that a person has a right not to be seized through the use of deadly force unless he puts another person in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force. Williams , 797 F.3d at 484. Under Nancy's version of events, which the court had to credit at the summary judgment stage, deadly force was used even though "John was merely passively resisting [the officers’] entreaties, and in the absence of any threats of violence by John toward the deputies or anyone else." Williams , 797 F.3d at 484. The court found that, based on the record, at no point had John threatened anyone involved with physical violence, and there was no indication that John posed a threat to others. Williams , 797 F.3d at 484-85. The court compared its case to Weinmann , and concluded:
We are aware that officers responding to a scene in which a suicidal person is locked in a room are faced with the difficult determination as to whether delay in responding will allow the person to further harm himself or to become aggressive toward others. It is clearly established, however, that officers cannot resort as an initial matter to lethal force on a person who is merely passively resisting and has not presented any threat of harm to others. Blanchard is not entitled to qualified immunity under that theory of liability, and thus the district court properly denied the motion for summary judgment.
Williams , 797 F.3d at 485.
The court has also found informative, and persuasive, several recent district court decisions. In Estate of Smith by Haynes v. City of Milwaukee , 410 F.Supp.3d 1066 (E.D. Wisc. 2019), the officers involved radioed that they wanted to check a certain area of town known for drug dealing, and wanted to get into a "foot chase." Officer Heaggan-Brown observed an individual exit an illegally parked vehicle, see Heaggan-Brown's squad car, and quickly walk away. Smith, the driver of the illegally parked vehicle, then exited the vehicle and began to run. Officers Heaggan-Brown and Malafa then pursued Smith. Smith possessed a handgun as he fled. Smith lost his footing and fell as he came upon a chain-link fence on the side of a house. He dropped the handgun. He then got up, grabbed the gun, and, while glancing back at Heaggan-Brown, picked up the gun by the muzzle and threw it over the fence.
The plaintiffs emphasized that Smith was attempting to resume his flight and was generally non-threatening. The plaintiffs also disputed that any verbal warning was given.
Heaggan-Brown shot Smith in the bicep. Smith fell to the ground. The officers yelled for Smith to show his hands, and perceived him to move his hand toward his waistband, as if reaching for a second weapon. The plaintiffs contended that Smith fell on his back, face-up, hit his head, and had his hands up near his head. Heaggan-Brown then shot Smith a second time. The court found uncontested the fact that, at the point he was shot a second time, Smith was on his back, feet raised in the air, hands above his head, and located in the corner of a yard between a fence and house.
The district court denied the officers qualified immunity. First, the court noted that the "officers did not engage Smith in response to reports of a serious crime, as is common where courts grant police qualified immunity." Smith , 410 F.Supp.3d at 1072. Indeed, the court noted, under the plaintiff's version, there was no illegal conduct at all on Smith's part, "much less a crime involving the infliction (or threatened infliction) of serious physical harm necessary to justify deadly force." Smith , 410 F.Supp.3d at 1072 (emphasis in original).
The court found that: (1) Smith was not in the midst of committing a violent crime nor did he pose a threat of serious physical harm to either the officers or those around him prior to the officers’ engagement; (2) Smith had not, under the plaintiffs’ version of events, done anything to even give officers probable cause to believe that he had committed a crime involving serious physical harm or threatened harm; and (3) there was no hard, undisputable evidence that either of the officers in pursuit gave Smith any kind of verbal warning prior to Heaggan-Brown shooting him. Smith , 410 F.Supp.3d at 1072-73.
The court further found that, "[e]ven accepting that Smith reached down to retrieve the gun while looking back at Heaggan-Brown, the fact that Smith possessed a gun is not controlling and does not grant Heaggan-Brown an irrebuttable or ironclad presumption that Smith posed an imminent threat, particularly where Smith grasped it by the muzzle instead of the handle." Smith , 410 F.Supp.3d at 1073. The court also went on to reject the officers’ arguments with regard to the second shot, finding that a reasonable jury could certainly find that Heaggan-Brown's belief that Smith might be armed with a second weapon was unreasonable. Smith , 410 F.Supp.3d at 1073.
In White v. City of Topeka , 489 F.Supp.3d 1209 (D. Kan. 2020), two police officers, after responding to a call reporting several gunshots in the area, encountered the decedent White. During a discussion with White, one officer saw White had a firearm in his left pocket. He ordered White to lie down and stop, which White ignored. White broke free from the officers’ grip and started to run away. The officers drew their guns and fired at White as he fled, killing him.
In considering the totality of the circumstances under the Graham factors, the court recognized that mere possession of a firearm by a suspect is not enough to permit the use of deadly force, and that an officer does not possess unfettered authority to shoot someone simply because the person is carrying a weapon. White , 489 F.Supp.3d at 1232-33, citing Cooper , 735 F.3d at 159. The court, viewing the evidence in the light most favorable to the plaintiffs, concluded that the totality of the circumstances showed:
(1) Mr. White was in the vicinity of a "high crime" area when someone had reported hearing gunfire near Ripley Park, (2) Mr. White initially ignored officers’ commands to stop, (3) Mr. White spoke to officers while in a bent-over position, (4) the officers knew Mr. White had a firearm in his pocket, (5) the officers knew nothing about Mr. White's criminal history or right to possess a firearm legally, (6) Mr. White never threatened the officers physically or verbally, (7) Mr. White never brandished his weapon, (8) Mr. White refused to comply with officers’ attempts to secure the weapon in his pocket, (9) Mr. White broke free from the officers’ grip and began to run away from them, (10) Mr. White's left hand was near his left pocket for less than one second but never went into his pocket, grabbed the firearm, or brandished the weapon, and (11) the officers shot Mr. White as he was running away from them. These facts present triable issues on the second Graham factor—i.e. , whether Mr. White posed an immediate threat to the safety of the officers or others. But the court can't conclude that these facts establish—as a matter of law—that the officers’ use of deadly force was justified because Mr. White posed an immediate threat to the safety of officers or others.
White , 489 F.Supp.3d at 1234-35.
Even though White was actively resisting, under the totality of the circumstances the court found that the officers were not entitled to qualified immunity, because a reasonable jury could conclude police lacked probable cause to believe that White had committed a severe crime or that he posed a threat to the officers or others. White , 489 F.Supp.3d at 1234-35.
In McKenney v. Mangino , 2017 WL 1365959 (D. Me. Apr. 12, 2017), the district court denied qualified immunity on summary judgment for the defendant officer Mangino, where the officer shot the suspect, Stephen McKenney, after the police had been called to Stephen's home by his wife, who reported that Stephen wanted to shoot himself, that the residence contained multiple firearms that were not locked up, and that Stephen had become increasingly "physical" and "aggressive" with her. The district court summarized the events leading up to the shooting as follows:
[A]fter the officers spoke with Stephen inside and then left the McKenney residence, they first saw Stephen in the doorway leading to the garage at approximately 6:24 a.m. They observed Stephen walk in and out of his house and around the driveway for approximately seven and a half minutes, between 6:24 a.m. and 6:32 a.m. At approximately 6:26 a.m., Deputy Mangino yelled at Stephen three times and ordered him to drop his gun. A few seconds later, Mangino observed Stephen raise the gun over his head, and thought Stephen was pointing the gun at him. Approximately five minutes later, at 6:31 a.m., Officer Fournier radioed to Deputy Mangino and said "I can't tell, but he might be pointing that." At 6:31:30 a.m., Stephen began walking down the driveway in the direction of Deputy Mangino's cruiser. Deputy Mangino testified that Stephen was walking nonchalantly, and held his gun dangling down by his side. Stephen did not make any sudden movements or point the gun in the direction of Mangino's cruiser. At 6:31:41 a.m., Deputy Mangino fired two shots at Stephen, hitting him once and killing him. At the moment he was shot and
killed, Stephen was 69 feet away from Deputy Mangino.
McKenney , 2017 WL 1365959, at *3.
The district court found that a reasonable officer should have understood that using deadly force against Stephen in the particular circumstances of the case would violate the Fourth Amendment, because it was not reasonable to believe that he posed an immediate threat to the safety of the officers or others at the time he was shot. McKenney , 2017 WL 1365959, at *12. The court noted that: Stephen was walking "nonchalantly" down the driveway with his gun dangling at his side; he never made any threats to the officers, and, although Mangino believed Stephen had pointed his gun at him earlier, Stephen did not point his gun at Mangino or any other officer in the minutes immediately preceding the shooting; Stephen was 69 feet away from Mangino's cruiser, reducing danger due to great physical distance; the incident took place on a calm sunny day over a long period of time, thus Mangino did not have to make a split-second decision; and while Stephen had been warned six minutes earlier to drop the gun, he was not warned in the immediate moments before he was shot. Based on all of that, the district court concluded that the threat posed by Stephen was not immediate enough to justify deadly force. McKenney , 2017 WL 1365959, at *13.
Totality of the Circumstances
After considering the factors from the U.S. Supreme Court's decision in Graham , and the relevant case law, the court finds that all of the Graham factors favor Plaintiff. These factors and the totality of the circumstances preclude the court from finding on summary judgment - as a matter of law - that Wittmer's use of deadly force was reasonable under the facts presented, and thus did not violate Plaintiff's Fourth Amendment rights.
Here, the severity of the crime that Wittmer believed he was investigating, someone in possession of a firearm, or an argument between two people, would not justify deadly force. There was no actual violent crime or threat associated with Plaintiff that Wittmer knew about when he arrived at the scene or ordered Plaintiff to stop. Wittmer was not in "hot pursuit of an individual known to be armed and dangerous[,]" nor was he responding "to a report of violent crime or otherwise arriv[ing] at a location to find an individual engaged in violent or menacing conduct or acting so unpredictably as to convey a threat to anyone present." See Strand , 910 F.3d at 916.
There was also no immediate threat to Wittmer or others requiring the use of deadly force: Wittmer knew nothing about Plaintiff's criminal history or right to possess a firearm legally; Plaintiff was always within Wittmer's view; Plaintiff was standing in the open street and not a confined space; there was no physical struggle over a weapon; it is undisputed that Plaintiff never threatened harm to Wittmer or anyone else at any point before Wittmer shot him; Plaintiff never brandished his gun; Plaintiff did move his arm across his body to release the knife so it fell to the ground; Plaintiff was warned by Wittmer that he could be shot if he did not comply with Wittmer's commands; Plaintiff never did lay down on the ground, despite being ordered to do so; and it is disputed whether Plaintiff made any movement toward the gun tucked into his waistband, but, taking Plaintiff's version of the facts, he never made any such movement.
Considering the totality of those factual circumstances, the court is precluded from finding that Plaintiff posed an imminent threat of harm to Wittmer or anyone else at that time. See Ybarra v. City of Chicago , 2019 WL 498953, at *6 (N.D. Ill. Feb. 8, 2019) ; White , 489 F.Supp.3d at 1234-35 ; Smith , 410 F.Supp.3d at 1072-73.
Finally, Plaintiff never actively resisted Wittmer, but rather passively resisted by refusing to comply with Wittmer's commands to lay down. See Phillips , 678 F.3d at 524-25. Such passive resistence by Plaintiff, in the absence of threats of violence by Plaintiff toward Wittmer or anyone else, creates a genuine issue of material fact as to whether Wittmer's use of deadly force was reasonable. See Williams , 797 F.3d at 484.
It is true that Plaintiff was armed, non-compliant with Wittmer's orders, and warned he could be shot. However, deadly force is not justified merely because Plaintiff was armed if there is no reasonable imminent threat that Plaintiff is going to use the weapon. See Estate of Biegert by Biegert v. Molitor , 968 F.3d 693, 700 (7th Cir. 2020) ("Having a weapon is not the same as threatening to use a weapon."). Wittmer, seeing Plaintiff armed with a gun and believing Plaintiff had been in an earlier argument, may have thought that Plaintiff might be returning to the party to start shooting. But those beliefs, considered with the facts already enumerated above, are not enough to justify use of deadly force, as the test is objective and not based on Wittmer's subjective belief of a threat. See Weinmann , 787 F.3d at 449.
And, while Wittmer's warning to Plaintiff that he would shoot if Plaintiff went for "it" and Plaintiff's failure to immediately comply with Wittmer's commands do militate in favor of reasonableness, the provision of a warning and passive resistance to police orders do not allow for the use of deadly force where Plaintiff has not put Wittmer (or another person) in imminent danger or where Plaintiff is not actively resisting arrest. See Weinmann , 787 F.3d at 448 ; Williams , 797 F.3d at 484 ("If Nancy's description is accurate, and we must credit her version at this stage because the district court determined that it created a genuine issue of fact, then deadly force was used here even though John was merely passively resisting their entreaties, and in the absence of any threats of violence by John toward the deputies or anyone else.").
In sum, the court finds that, under the totality of the circumstances based on Plaintiff's version of events, all three Graham factors weigh in favor of finding that Wittmer's decision to employ deadly force against Plaintiff was unreasonable. The court is mindful that this was a stressful situation for Wittmer, and he needed to make split-second decisions under intense and uncertain circumstances. See Siler , 957 F.3d at 759. However, Wittmer is not entitled to qualified immunity if he resorts to lethal force on a suspect who is "merely passively resisting and has not presented any threat of harm to others." See Williams , 797 F.3d at 485.
Cases Cited by Defendants
Defendants cite a number of cases in support of their argument that Wittmer's decision to use deadly force was reasonable and that Plaintiff's Fourth Amendment rights were not violated. The court finds those cases to be distinguishable.
Defendants primarily rely on the U.S. Supreme Court's decision in Kisela to support their argument that Plaintiff posed an imminent threat to the safety of Wittmer and Danner and the bystanders. In Kisela , however, the behavior of the suspect who was shot by police was much more threatening. Police had been called to a neighborhood based on a report that a woman had been seen hacking a tree with a knife. A few minutes later, the person who had called 911 flagged down the officers, gave them a description of the woman with the knife, and told them that the woman had been acting "erratically." The officers then spotted another woman, Chadwick, standing in a driveway of a nearby house. A chain-link fence separated Chadwick from the officers. The officers saw a woman, Hughes, who matched the description given by the 911 caller, emerge carrying a large knife at her side, and walk towards Chadwick, stopping no more than six feet from her. The officers on scene drew their guns and told Hughes at least twice to drop the knife. Hughes appeared calm and did not acknowledge the officers’ presence or drop the knife. The officers then shot Hughes.
The Supreme Court did not decide whether the officers’ actions violated the Fourth Amendment, but rather found the officers were entitled to qualified immunity because it was not clearly established at the time of the shooting whether their actions did so. Kisela , 138 S.Ct. at 1152. The Court also found that this was "far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment[,]" noting the facts of the case: officer Kisela had mere seconds to assess the potential danger to Chadwick; he was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down the officers; the officers were separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. Kisela , 138 S.Ct. at 1153.
Defendants also cite to the Ninth Circuit's decision in Blanford v. Sacramento County , 406 F.3d 1110 (9th Cir. 2005), cited with approval by the Supreme Court in Kisela , where the court held as reasonable a police shooting involving a man reported as behaving "erratically" and walking through a neighborhood with a large sword, who refused police commands to drop his weapon. Blanford , 406 F.3d at 1112-13. In that case, the Ninth Circuit held the shooting was justified because by the time of the first volley of shots, the officers knew that citizens had called 911 reporting "peculiar behavior" by a person with a sword and Blanford was in fact armed with a 2–1/2–foot sword. The deputies knew that Blanford failed to communicate or comply with their orders to stop and drop the sword, and did not respond to their warnings that they would shoot if he did not comply. Instead, he raised his sword and growled. The Ninth Circuit wrote that "[t]his was a crime, and in addition gave the deputies cause to believe that Blanford posed a threat of harm to whomever he encountered." Blanford , 406 F.3d at 1116. The officers then saw Blanford move purposefully toward a house, which they were unaware was where he lived. They saw Blanford try unsuccessfully to gain entry through the front door and start around the corner of the house toward a gate that would have blocked the officers but allowed Blanford access to the side of the house and back yard. The officers’ decision to fire was based upon Blanford's refusal to heed warnings and commands to drop the sword, as well as his attempt to enter a private residence and backyard with a lethal weapon. "These facts objectively, and reasonably, led the deputies to conclude that the situation could not be resolved by talking, and that Blanford posed an immediate and unacceptable risk of harming whoever was in the house or yard should he be allowed to escape beyond the gate." Blanford , 406 F.3d at 1116.
In both Kisela and Blanford , the responding officers knew that the armed suspects had been reported as acting "erratically," and both suspects were actually holding their weapons. In the instant case, Wittmer had no knowledge about Plaintiff or how Plaintiff had been behaving, only that there was a person armed with a .45 caliber handgun and a backpack "full of weapons." Further, in both Kisela and Blanford , the suspects made threatening gestures/actions. In Kisela the suspect had been seen using the knife on a tree, and then took steps toward a bystander while armed with the knife. In Blanford , the suspect made an aggressive gesture by raising the sword and "growling" when ordered to drop the sword by the officers. Also, the suspect had been trying to enter a house while armed with the sword. By contrast, in the instant case, Plaintiff was not holding the gun at any time during the encounter with Wittmer; it remained tucked in his waistband. Further, based on Plaintiff's version of events, Plaintiff never made any threatening gestures or advancement toward Wittmer, Danner, or the bystanders. While both Plaintiff and the suspects in Kisela and Blanford were armed, their respective behaviors are very different in terms of evaluating the imminence of the threats they posed.
Defendants also cite to the Seventh Circuit's decision in Henning v. O'Leary , 477 F.3d 492 (7th Cir. 2007), where the court held that a police shooting was reasonable. However, in that case, as opposed to the instant case, the suspect was actively resisting arrest and, in the midst of a tense struggle on the ground, the officers believed the suspect might have actually got his hand on or near one of the officers’ service weapon. Henning , 477 F.3d at 495-96. Here, of course, there was no active resistence resembling anything like the scenario in Henning.
Finally, Defendants cite to the Fifth Circuit's recent decision in Ratliff v. Aransas County, Texas , 948 F.3d 281 (5th Cir. 2020). In that case, officers responded to a 911 call from Ratliff's fiancee. The fiancee stated that Ratliff had beaten her earlier in the evening. She told officers Ratliff had been drinking all day and night, and that he had "thrown her to the ground, punched her ‘everywhere,’ and choked her with such force that she thought she would die." As the officers approached the home, Ratliff stood on the front porch holding a loaded semi-automatic rifle yelling "get the fuck off my property." It was disputed if Ratliff ever pointed the gun at the officers, but he refused to drop the weapon after being given five warnings, telling the officers to "shoot him." The officers fired nine rounds, the entire encounter lasting 25 seconds.
The Fifth Circuit applied qualified immunity, finding that it was "not unreasonable for law enforcement officers to use deadly force against an armed suspect, irrespective of the pointed direction of that suspect's weapon, when the suspect has ignored orders to drop the weapon and has displayed erratic or aggressive behavior indicating that he may pose an imminent threat." Ratliff , 948 F.3d at 288. The court concluded that once Ratliff had ignored repeated warnings to drop his weapon, the officers had ample reason to fear for their safety, as the officers knew that Ratliff was drunk, had nearly killed a person earlier in the night, dared the officers to shoot him, and cursed at them to get off his property. Ratliff , 948 F.3d at 289 n.3.
Again, in Ratliff the officers knew the suspect had engaged in extremely violent behavior towards someone that same evening, was drunk, was holding a loaded gun, and was belligerent with police. In the instant case, there is no evidence Wittmer knew of any violent behavior on Plaintiff's part, the gun was not in Plaintiff's hand, and Plaintiff was not being aggressive or belligerent with Wittmer. Ratliff is entirely distinguishable from this case. Whether It Was Clearly Established That Wittmer Employing Deadly Force In These Circumstances Would Violate Plaintiff's Fourth Amendment Rights
The court now turns to whether the right Plaintiff is asserting was clearly established at the time of the shooting. To be clearly established, a legal principle must be "settled law," and it must clearly prohibit the officer's conduct in the particular circumstances before the officer. District of Columbia v. Wesby , ––– U.S. ––––, 138 S.Ct. 577, 581, 199 L.Ed.2d 453 (2018). In other words, existing law must have placed the constitutionality of the officer's conduct "beyond debate," a demanding standard that protects all but the plainly incompetent or those who knowingly violate the law. Wesby , 138 S.Ct. at 589. The rule must be "settled law," which means it is dictated by "controlling authority" or "a robust ‘consensus of cases of persuasive authority[.]’ " Wesby , 138 S.Ct. at 589-90, quoting Ashcroft v. al-Kidd , 563 U.S. 731, 741-42, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). It is not enough that the rule is suggested by then-existing precedent, but rather the precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Wesby , 138 S.Ct. at 590.
The Supreme Court has held:
The "clearly established" standard also requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him. The rule's contours must be so well defined that it is "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." This requires a high "degree of specificity." We have repeatedly stressed that courts must not "define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced." A rule is too general if the unlawfulness of the officer's conduct "does not follow immediately from the conclusion that [the rule] was firmly established."
Wesby , 138 S.Ct. at 590 (citations omitted).
However, while a case "directly on point" is not required, the dispositive question is whether the violative nature of the particular conduct is clearly established, and the inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Neely-Bey Tarik-El v. Conley , 912 F.3d 989, 998 (7th Cir. 2019). The specificity of the rule in question is especially important in Fourth Amendment cases. Wesby , 138 S.Ct. at 590. Ordinarily, to show that the law was "clearly established," plaintiffs must point to a "closely analogous case" finding the alleged violation unlawful. Reed v. Palmer , 906 F.3d 540, 547 (7th Cir. 2018). This court must look first to controlling Supreme Court precedent and Seventh Circuit decisions on the issue and, if no controlling precedent exists, the court may broaden its survey to include all relevant case law in order to determine whether there was such a clear trend in the case law that the court can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time. Reed , 906 F.3d at 547. Neither an unpublished circuit court decision nor a district court decision can clearly establish the law because they are not authoritative as precedent and therefore do not establish the duties of nonparties. Anderson v. Romero , 72 F.3d 518, 525 (7th Cir. 1995).
Alternatively, in some rare cases, where the constitutional violation is patently obvious, the plaintiffs may not be required to present the court with any analogous cases, and instead, plaintiffs can demonstrate clearly established law by proving the defendant's conduct was so egregious and unreasonable that no reasonable official could have thought he was acting lawfully. Reed , 906 F.3d at 547. Outrageous conduct obviously will be unconstitutional, but even as to action less than an outrage, officials can still be on notice that their conduct violates established law in novel factual circumstances. Reed , 906 F.3d at 547.
On the issue of the use of deadly force, while the factors articulated in Garner and Graham aid the courts in determining whether a constitutional violation occurred, "the Supreme Court has made clear that ‘Garner and Graham do not by themselves create clearly established law outside an obvious case.’ " Mason-Funk v. City of Neenah , 895 F.3d 504, 508 (7th Cir. 2018), quoting Kisela , 138 S.Ct. at 1152.
Plaintiff first argues that this is such an "obvious case" that a closely analogous case from the Supreme Court or Seventh Circuit is not necessary. The court disagrees. While the court did find that, taking the facts in the light most favorable to Plaintiff, a genuine issue of material fact existed as to whether the use of deadly force was reasonable, it was a closely decided issue. While the court has determined that Plaintiff was not actively resisting, and did not represent an immediate physical threat to Wittmer or others, Plaintiff still was armed with what appeared to be a real gun, was not complying with officer commands, was in a tense quickly developing situation, and had received a warning not to "go for that" or he would be shot, and thus "[t]his is far from an obvious case in which any competent officer would have know that shooting" Plaintiff to protect the officer and others would violate the Fourth Amendment. See Kisela , 138 S.Ct. at 1153. This is not a case where an officer has used deadly force, without warning, on a fleeing unarmed or disarmed suspect who had not committed or threatened to commit a violent crime. See Smith , 410 F.Supp.3d at 1076. Thus, the burden is on Plaintiff to come up with a closely analogous case.
Plaintiff cites Weinmann as a case that clearly established that shooting Plaintiff under the circumstances in this case would be a Fourth Amendment violation. On this point, the court agrees. To Weinmann the court would also add Williams. Both cases were decided in 2015, and thus should have been known to a reasonable law enforcement officer before the events of this case in 2016.
The facts of Weinmann and Williams differ from the instant case in some not-insignificant ways: Plaintiff was not suicidal; Plaintiff, unlike the suspect in Weinmann , was passively resisting (the issue is murkier in Williams ); and here Wittmer did provide a warning to Plaintiff thirty seconds before the shooting. However, whether the law is clearly established does not require locating a case directly on point, and law enforcement officers can still be on notice that their conduct violates established law even in novel factual circumstances. Strand , 910 F.3d at 915, citing Hope v. Pelzer , 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Rather, for the law in question to be clearly established "the ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ " Strand , 910 F.3d at 915, quoting al-Kidd , 563 U.S. at 741, 131 S.Ct. 2074.
In both Weinmann and Williams , although the cases turned on their own particular and individualized facts, the court framed the constitutional issue as "whether a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree or force." Weinmann , 787 F.3d at 448 ; Williams , 797 F.3d at 484, quoting Weinmann , 787 F.3d at 448 ("It is well-established—and has been since long before the shooting at issue here—that ‘a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force.’ "). Both cases extended that "well-established" constitutional holding to circumstances where the person seized through the use of deadly force was armed, so long as the person did not put another in imminent danger or actively resist arrest. Weinmann , 787 F.3d at 449-451 ; Williams , 797 F.3d at 484-85.
While it is true that the Supreme Court in Kisela cautioned that Graham and Garner do not by themselves create clearly established law outside an obvious case, the Seventh Circuit has synthesized the Graham factors to create clearly established law that deadly force may not be employed absent active resistance or a person putting another in imminent danger. Indeed, a few years after Weinmann and Williams , the Seventh Circuit affirmed the right, stating "[i]t is beyond debate that a person has a right to be free of deadly force ‘unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force.’ " Strand , 910 F.3d at 917 , quoting Weinmann , 787 F.3d at 448. Weinmann and Williams merely extended that right to suspects who were armed, but were not actively resisting or otherwise posed no imminent danger.
It should be noted that Strand was decided on November 8, 2018, seven months after Kisela.
The court concludes that the right at issue was clearly established on July 11, 2016. A reasonable officer in Wittmer's situation, based on the Seventh Circuit's decisions in Weinmann and Williams , would have known that the use of deadly force under the facts of this case, taken in the light most favorable to Plaintiff and drawing all reasonable inferences therefrom, was unreasonable and thus a violation of the Fourth Amendment.
The court would note that qualified immunity is being denied in this instance due to a factual dispute. Defendants contend that Plaintiff was reaching for his gun in his waistband, and that that action was what led Wittmer to open fire in defense of himself and others. If it were undisputed that Plaintiff had reached for the gun, then Wittmer may well have been justified in using deadly force, and hence be entitled to qualified immunity. See Weinmann , 787 F.3d at 449-50. However, the summary judgment record leaves this factual dispute unresolved, and this uncertainty as to a material fact precludes a ruling on qualified immunity on summary judgment. See Strand , 910 F.3d at 918.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (#27) is DENIED.
IT IS THEREFORE ORDERED:
(1) Defendants’ Joint Motion for Summary Judgment (#27) is DENIED.
(2) This matter remains set for a final pretrial conference on July 26, 2021, at 11:00 am, before this court, and a jury trial on August 24, 2021, at 9:00 am, also before this court.