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Mason-Funk v. City of Neenah
Citation: 296 F. Supp. 3d 1006Docket: Case No. 16–C–978
Court: District Court, E.D. Wisconsin; November 1, 2017; Federal District Court
Plaintiff Theresa Mason-Funk, as both an individual and personal representative of her late husband Michael Funk's estate, filed a lawsuit under 42 U.S.C. § 1983 against Neenah Police Department Officers Craig Hoffer and Robert Ross for the fatal shooting of her husband. She also claims battery and loss of society and companionship under Wisconsin's wrongful death statute, naming the City of Neenah as a defendant due to its obligation to indemnify officers for actions taken during their employment. The court has jurisdiction over the federal claim and supplemental jurisdiction over the state claims. The case is currently before the court on the defendants' motion for summary judgment, which argues the reasonableness of the use of force and asserts immunity from liability under federal and state law. The court is inclined to grant the defendants' motion. The incident stems from a hostage situation on December 5, 2015, when Brian Flatoff entered Eagle Nation Cycles in Neenah with a loaded MAC-10 machine pistol, taking Michael Funk and three others hostage. Flatoff instructed one hostage to contact a person related to a dispute, which subsequently alerted local authorities. Police were informed of a shot being fired and responded to the scene, including various officers from both the Neenah and Menasha police departments. Upon arrival, the officers learned that the hostage-taker had a weapon and hostages were inside. A perimeter was established around the shop. Shortly thereafter, a potential hostage, Ethan Moderson, escaped and confirmed to officers that a gunman remained inside. The police began forming a "Hasty Team" to prepare for intervention if necessary. At 9:21 a.m., officers were informed that Flatoff threatened to start shooting if Dalton did not arrive at Eagle Nation within five minutes. By 9:39 a.m., Flatoff escalated his threats, claiming he would kill everyone if Dalton did not show up immediately. Officer Kuffel determined that a forced entry into Eagle Nation was necessary to prevent potential harm to hostages. The Hasty Team was organized for entry at approximately 9:40 a.m., with a specific formation led by Lieutenant Thompson and Lieutenant O'Bre. The team entered the shop at 9:42:07 a.m., encountering obstacles due to scattered items. Upon entry, they announced their presence, and Flatoff began shooting at them while Funk, a potential hostage, dropped to the floor. Officer Hoffer was struck by a bullet near his helmet at 9:42:14 a.m., followed by gunfire that hit a fire extinguisher, obscuring visibility. The Hasty Team initially returned fire but withdrew by 9:43:02 a.m., believing they had entered an ambush and thinking there were no hostages inside. Lieutenant O'Bre, Lieutenant Thompson, and Officer Kuffel retreated to Gord's Bar parking lot, while Officers Hoffer and Ross joined other officers across the alley. At approximately 9:45 a.m., Flatoff ordered Funk to close the rear door and threatened him if he attempted to escape. Funk dove out the door as Flatoff fired at him, and he took cover behind a truck. Funk drew his handgun while Officers Hoffer and Ross moved back toward the alley to observe the rear door of the shop after hearing the shots fired by Flatoff. Officers Hoffer and Ross arrived at a scene where Funk had exited a shop brandishing a pistol. As Funk ran away from a truck, the officers fired at him, hitting him multiple times over a span of five seconds: Hoffer fired eight shots, hitting Funk twice, while Ross fired eleven shots, striking him five times. No warnings or instructions were given to Funk before or during the shooting. Hoffer initially claimed he issued a command for Funk to show his hands but later admitted he did not. Ross felt that a warning was impractical due to the immediacy of the threat. After Funk was down, a discussion ensued about providing medical assistance; Hoffer decided against it, stating Funk "could care less" about his situation and cited concerns over officer safety. As a result of the shooting, Funk died. The section on legal standards outlines that summary judgment is appropriate when there are no genuine disputes over material facts, with all reasonable inferences favoring the nonmoving party. The opposing party must provide specific facts to show a genuine issue for trial, and mere speculation about facts is insufficient. Summary judgment is warranted if the opposing party fails to establish an essential element of their case. The excerpt also details the legal framework for excessive force claims under the Fourth Amendment, emphasizing a "reasonableness" standard. This involves a balancing act between the intrusion on Fourth Amendment rights and governmental interests, considering the severity of the crime, immediate threat levels, and the suspect's actions. The assessment must be made from the perspective of a reasonable officer in the situation, acknowledging that officers often make split-second decisions in tense environments. The ultimate question is whether the officers' actions were objectively reasonable based on the circumstances they faced. Officers Hoffer and Ross would have been justified in using deadly force if Flatoff, the suspect who had previously shot at them, had exited the shop armed and turned towards them. Flatoff had already injured Officer Hoffer and threatened hostages, creating a reasonable belief that he posed a deadly threat. However, the person who emerged was Funk, a hostage, not Flatoff. Although the officers made a tragic mistake by firing at Funk, this does not constitute a violation of Funk's Fourth Amendment rights. Relevant case law supports that police can act based on reasonable mistakes; for instance, Hill v. California allows for valid arrests based on probable cause, even when a mistake occurs. Cases like Slattery v. Rizzo and Sherrod v. Berry further illustrate that the use of deadly force can be justified if officers reasonably believe a suspect is armed, regardless of the actual circumstances. Funk’s situation mirrors Milstead v. Kibler, where an officer mistakenly shot a victim, believing him to be the assailant. The court upheld that a reasonable misunderstanding of the facts can render actions under the Fourth Amendment lawful. In this context, the officers acted under the belief that Funk, being armed, posed a threat, similar to the circumstances faced by Officer Kibler. It was reasonable for officers to believe that the individual crashing through the door was Ramey, who had previously made threats. Despite the tragic mistake made by Officer Kibler, the court emphasized that it cannot second-guess the split-second decisions of police officers faced with rapidly evolving situations where inaction poses risks to safety. Just minutes earlier, officers had encountered gunfire while attempting to rescue hostages threatened by Flatoff, who had already fired at Officer Hoffer. Officers Hoffer and Ross retreated for cover and, upon hearing more gunfire, returned to see Funk exiting with a gun and turning towards them. They fired in a split-second decision, believing Funk was a threat. The Plaintiff contends that the officers' claim of justification for using deadly force against Funk is objectively unreasonable. She argues that Officers Kuffel and Hoffer's assessment that the situation was an ambush rather than a hostage scenario was flawed, citing the lack of distress among individuals inside the shop and the presence of cover. The Plaintiff highlights that Flatoff was reported as the sole hostage-taker and the type of weapon he used contributed to the gunfire they faced. While innocent explanations for the officers' observations could exist, they argue that it is reasonable to assume a hostage situation would involve the hostages being kept together and appearing distressed. Ultimately, Funk’s possession of a weapon upon exiting shortly after the shootout led Hoffer and Ross to conclude he posed a threat, undermining any consideration of him as a hostage. Plaintiff criticizes Officers Hoffer and Ross for not adhering to police standards, specifically the "Priorities of Life" standard, which prioritizes the lives of innocent hostages over police officers during hostage situations. It is asserted that police practices dictate assuming individuals involved in hostage situations are innocent until proven otherwise. Plaintiff presents expert reports claiming that the officers violated these standards by assuming Funk was a threat and using deadly force without warning him to drop his gun. However, the standards cited provide limited guidance for scenarios involving armed suspects. Officers Hoffer and Ross justified their actions based on the context—Funk had emerged from a shop where gunfire had occurred, and they perceived him turning towards them with a gun as "reliable evidence" of an imminent threat. The excerpt raises the question of whether officers must wait for additional evidence before using deadly force, a point not yet addressed by federal courts. The court emphasizes that compliance with police standards is irrelevant to the determination of constitutional violations under 42 U.S.C. § 1983, which focuses on federal constitutional rights rather than state laws or departmental regulations. Plaintiff argues that video evidence suggests the officers had three to four seconds to assess the situation before shooting Funk, who had not pointed his gun at them or approached them aggressively, implying they might not have been justified in using deadly force. However, the officers believed they needed to act quickly to prevent Funk from escaping or causing harm, given his recent violent actions against police during the hostage incident. Officer Hoffer thought he had issued a warning before firing, while Officer Ross felt that a warning was not feasible, both believing that any delay could jeopardize their safety or that of others. The officers involved acted under a reasonable misunderstanding of a dangerous hostage situation, which justified their use of deadly force, despite it later being revealed that the suspect was not the shooter. Officer Berna, who was positioned defensively with a shield, and Sergeant Eichmann, who lost sight of the suspect, did not fire their weapons; however, this does not imply that Officers Hoffer and Ross's decision to act was unreasonable given the immediate threat they faced. The excerpt emphasizes that excessive force claims are assessed based on the circumstances as perceived by the officers at the time, rather than with hindsight. Additionally, the doctrine of qualified immunity is discussed, which protects government officials from civil liability unless their actions violate clearly established statutory or constitutional rights that a reasonable person would recognize. The burden of proof for overcoming qualified immunity lies with the plaintiff, who must demonstrate a clear violation of rights based on established precedent, avoiding overly broad interpretations. The Supreme Court has clarified that rights must be defined with sufficient specificity for reasonable officials to understand when they are violating them. Government officials are afforded protection under a standard that allows for reasonable but mistaken judgments, shielding them from liability unless they are deemed plainly incompetent or knowingly violating the law. In the case of White v. Pauly, the Supreme Court addressed the application of qualified immunity for police officers involved in a shooting incident. The situation unfolded when officers responded to a report of a road-rage incident involving intoxication. Upon arrival, the officers did not clearly identify themselves as police, leading to a confrontation where one brother threatened the officers with guns. Officer White, unaware of the situation's dynamics, drew his weapon after hearing a gunshot and ultimately shot and killed Samuel Pauly after assessing the threat. Daniel Pauly, Samuel's brother, sued the officers for excessive force, prompting the officers to seek summary judgment based on qualified immunity. The district court and the Tenth Circuit Court of Appeals both denied the claim of qualified immunity for Officer White, suggesting that a jury could find his use of deadly force unreasonable. The appeals court noted that clearly established law at the time indicated that a warning was necessary before using lethal force. The Supreme Court, however, reversed this position, emphasizing that "clearly established law" must be specific to the case's facts. The Court criticized the appellate court for not identifying a precedent where an officer in similar circumstances was found to have violated the Fourth Amendment. It clarified that general principles, such as those from Graham and Garner, do not alone establish a clear violation unless the unlawfulness is apparent. The Supreme Court concluded that Officer White's actions did not violate clearly established law due to the unique circumstances of his late arrival at the scene, indicating that the case did not present a straightforward violation of rights. The court must assess whether a constitutional rule clearly indicated to the officers that their actions were unlawful. The plaintiff contends that the officers violated Funk's Fourth Amendment right against excessive force, citing several cases to support this claim. However, while these cases outline the general principles of excessive force, they lack factual similarity to Funk's situation and do not define his rights with the specificity required by the Supreme Court. No controlling case law exists that would have alerted Officers Hoffer and Ross to the unlawfulness of their conduct. The plaintiff references Tennessee v. Garner to argue that deadly force is permissible only when an officer has a reasonable belief of an imminent threat. Nonetheless, the court deems Garner inadequate to establish a clear constitutional violation in this case, noting it merely states broad principles of excessive force. Furthermore, the facts of Garner differ significantly; in that case, an officer shot an unarmed suspect fleeing after a burglary, while Funk was armed and involved in a recent shootout with police. Additionally, the plaintiff cites two district court cases—Wells v. City of Dayton and Hulstedt v. City of Scottsdale—arguing that officers have a duty to differentiate between hostages and hostage-takers. However, the Seventh Circuit has ruled that district court decisions cannot establish constitutional rights. Both cited cases are also distinguishable from Funk's situation: Wells did not involve a hostage scenario, as the events leading to Wells's shooting by police were unrelated to hostage dynamics. Approximately five seconds elapsed between Robinson shooting an officer and the officer shooting Wells, while only one second passed from the officer entering the doorway to shooting Wells. The district court determined that, favorably interpreting the evidence for the plaintiff, Wells posed no risk of harm to either officer or anyone else. The court noted that Officer Cornwell fired without allowing Wells an opportunity to surrender, leading to the conclusion that he was not entitled to qualified immunity. In a related case, Hulstedt v. City of Scottsdale, an unarmed man threatened his infant daughter and approached officers while holding her above his head. When he turned to walk back into his house, officers shouted for him to put her down and then shot him in the back three times, causing severe injuries to both the man and his daughter. The court found the shooting excessive, as officers failed to issue a feasible warning before using deadly force, and determined that a reasonable officer would not have perceived an imminent threat given the man's actions. The court emphasized that neither case provided adequate warning to the officers involved in the current situation, as they did not involve armed individuals presenting a threat at the time of the shooting. In the case at hand, Funk was armed and had just exited a building where hostages were held and shots had been fired at police, distinguishing it from the previous cases. Lastly, the plaintiff cited cases regarding the unconstitutionality of deadly force against armed individuals not posing an immediate threat, but these also lacked factual similarity to the current case. Officers approached Cooper's house at 11:30 p.m. without identifying themselves as police. After Cooper called out for identification but received no response, he emerged with a shotgun pointed downward. The officers, realizing he had a gun, shot at him without warning, hitting him twice before he collapsed. The court ruled that the officers violated Cooper's right to be free from deadly force, as he posed no threat; his mere possession of a firearm did not justify the use of deadly force, especially since he did not make sudden movements or threats, and the officers' failure to identify themselves meant Cooper likely did not know they were present. In Baker v. Putnal, the Fifth Circuit reversed a summary judgment for an officer who shot and killed Wendell Baker, noting that Baker did not provoke the officer and was not facing him when shot, raising factual issues regarding the justification for the shooting. In Weinmann v. McClone, Deputy McClone responded to a suicide threat and, after peering into the garage without seeing Weinmann, kicked in the door and shot him upon entry. The court found this use of force objectively unreasonable, as Weinmann was not resisting or threatening anyone but himself, labeling it excessive. A suicidal individual has the right to be free from deadly force unless they pose a threat to others, as established by precedent. However, the facts of the current case are distinct; the victims did not exhibit threatening behavior, such as sudden movements or ignoring police commands, and the officers did not identify themselves or warn the victims before using deadly force. In contrast, Officers Hoffer and Ross faced an active hostage situation, with knowledge that the gunman had threatened the hostages and had already fired upon police. When an armed individual, Funk, emerged outside, police reasonably believed he was a threat due to prior gunfire. The circumstances of this case do not parallel the plaintiff's cited cases, which do not provide clear warning of any rights violation. Therefore, the defendants are entitled to qualified immunity regarding the plaintiff's § 1983 excessive force claim. Regarding the plaintiff's state law claims, the court notes that it generally declines to exercise supplemental jurisdiction once federal claims are dismissed, per 28 U.S.C. § 1367(c). The Seventh Circuit supports this presumption, suggesting states claims should be dismissed unless they are clearly valid. The current case does not warrant deviation from this presumption, leading to the dismissal of the state law claims without prejudice. Ultimately, the court grants the defendants' motion for summary judgment on federal claims, leading to their dismissal, and also dismisses the state law claims without prejudice, directing the clerk to enter judgment promptly.