John C. Peterson Peterson, Berk & Cross, S.C.

200 East College Avenue Appleton, WI 54911 (920) 831-0300 (920) 831-0165 (fax) jpeterson@pbclaw.com www.foxriverlawyers.com DONT SHOOT, IM A LAWYER: Police Shootings, Taserings and Section 1983 Litigation. The intent of this presentation is to give a brief overview of the law governing excessive force by the police in Wisconsin, and then to present several case scenarios with which we have been confronted in the last couple of years. OVERVIEW OF THE LAW GOVERNING EXCESSIVE FORCE IN WISCONSIN I. Excessive force claims under Wisconsin law A. Wisconsin law is clear that in making an arrest an officer may use such force as is necessary under the circumstances. Wirsing v. Krzeminski, 61 Wis. 2d 513, 213 N.W.2d 327 (1973) (citing Restatement (Second) Torts, 118). B. The jury instruction pertaining to such use of force makes it clear that the standard for evaluating police conduct is objective: The use of force beyond that which a reasonable police officer would believe necessary under all the circumstances then existing is excessive force. Wis JI Civil, 2008. C. It should be noted that the fact that a person has committed a crime is irrelevant to evaluating whether the officer used excessive force. i. [a] law enforcement officer ha[s] the duty to enforce the laws of Wisconsin and in making an arrest may use reasonable force to overcome the resistance of the person being arrested. This force, however, must not be excessive; that is, the officer must not use more force than is reasonable under all of the circumstances. Wis JI Civil, 2008. D. The applicable burden of proof that applies to the plaintiffs claim that the use of force was excessive is the middle burden of clear and convincing evidence. Johnson v. Ray, 99 Wis. 2d 777, 299 N.W.2d 849 (1981).

II.

Actions under 42 U.S.C. 1983 for the use of excessive force A. The advantages of a Federal 1983 claim. i. We are all aware of the limitations under state law that apply to claims made against agents or employees of the state or its political subdivisions in terms of the limitation of damages, immunity protections, and/or the notice requirements for any claim being made. ii. It has been said that the adoption of the Reconstruction Amendments and the subsequent Civil Rights Acts fundamentally altered the Federal system and provided a Federal cause of action that cannot be broadened or restricted by state law. Howlett v. Rose, 496 U.S. 356 (1990).

iii. As Judge Posner of the Seventh Circuit has said, [P]ressure to transform state common law torts into federal constitutional torts comes from the immunities and damage ceilings that states frequently impose on suits against their public officials , from a sense that state judges are sometimes unsympathetic to suits against the state, and from the availability of attorney fee awards in civil rights suits under 42 U.S.C. Sec. 1983. Spenser v. Lee, 864 F.2d 1376, 1382 (7th Cir. 1989) (en banc), cert. denied, 110 S.Ct. 1317 (1990). iv. In 1961 there were only 270 federal civil rights actions filed, but by 1995 40,000 to 50,000 were filed per year. [fn: Nasim v. Warden, 64 F.3d 951 (4th Cir. 1995)(Wilkinson, J., concurring)]. B. The legal standards that apply to resolving 1983 claims under Federal law i. Similar to Wisconsin law, Federal civil rights, excessive force claims are evaluated against a standard of objective reasonableness (rather than substantive due process). The question to be resolved is whether the force employed in making an investigatory stop, seizure or arrest was objectively reasonable given the totality of the circumstances apparent at the time. Graham v. Connor, 490 U.S. 386, 109 S.C. 1865, 104 L.Ed. 2d 443 (1989). ii. If information later becomes available which shows the prior application of force to be excessive, it is irrelevant to the

determination of excessive force if it is shown that the officer was unaware of that information at the time he/she acted. Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997). iii. If some of the force was not excessive, but some of the force was, the plaintiff can only recover for the excessive force. Where all of the injuries were inflicted by permissible force which then was elevated to excessive force, nominal or punitive damages might be available. Finally, where there is no probable cause for the seizure, all force applied is unreasonable. Atkins v. New York City, 143 F.3d 100 (2d Cir. 1998). iv. Because some force may have been reasonable, and permissible, but then was elevated to excessive force, the mere fact that the plaintiff was convicted of resisting arrest does not bar a Fourth Amendment Excessive force claim. Nelson v. Jasburekj, 109 F.3d 142 (3d Cir. 1997). v. The only subjective component to determining if force was excessive is what the officer knew at the time the force was employed. Malice or even sadistic intent is irrelevant. The only question is whether the use of force was objectively reasonable under the totality of the circumstances. Calamia v. New York City, 879 F.2d 1025 (2d Cir. 1989). vi. The leading case on the use of deadly force is Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Basically, the well-settled rule is that deadly force can only be used where there is a realistic threat of harm to the officer or another person. In addressing that question, the other standard such as objective reasonableness applies to a deadly force application. vii. In 2005, the Seventh Circuit overruled its long standing rule that a parent had standing to make a claim for the wrongful death of an adult child and imposed a rule very similar to that employed in medical negligence litigation in Wisconsin. Russ v. Watts, 414 F.3d 783 (7th Cir. 2005) overruling Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984).

Applying these general standards, we will now look at four factual scenarios that our office has evaluated in the recent past. Scenario #1: A young adult, the decedent, and his live-in girlfriend allow another young man to stay at their apartment. The boyfriend is on probation from a charge that he had attempted to flee from a traffic stop several months earlier, and a condition of the probation is that he not possess firearms. The police believed that the young man staying with the couple had stolen some items, the most prominent of which was an X-box, and they obtained a search warrant. Rather than simply executing the warrant, the police called in the county SWAT team who executed a raid by breaking down the door of the apartment in full body armor with fully automatic weapons. When he realized that the apartment was being raided, the decedent ran up stairs to his bedroom where he had an unloaded shotgun, presumably to hide the firearm. The SWAT team followed him and when they saw him raise the shotgun, they fired on him and killed him.

Scenario #2: A young, unmarried adult male who is on parole, is pulled over in a traffic stop. He has been drinking and smoking marijuana in violation of his parole. While in jail, he previously told another inmate that if he was ever in jeopardy of going back to prison, he was going to feign deadly force resistance. He told the occupants of his car during the stop that he was going out like a soldier. He got out of the car, confronting four officers with their guns drawn. He apparently used a cell phone pretending it was a weapon, drew it on the officers. Somewhere witnesses credibly testified that a gun report was heard. The officers opened fire as the decedent fled down the sidewalk and shot at him more than thirty times, striking him approximately ten times. He was, in fact, unarmed at the time.

Scenario #3: A police liaison officer and a school maintenance worker had known each other for years and were friends. One day, the police office drew her taser, took the safety off, aimed it directly at the maintenance worker and pulled the trigger. Although the physical injuries from the taser were modest, the plaintiff was a Viet Nam veteran with a history of PTSD which was aggravated by the incident.

Scenario #4: Our client, who was in treatment for depression, took himself off his medication. One evening he had an argument with his wife, and went out to his garage where he had liquor, guns, a phone, and an easy chair. His wife became alarmed that he might be suicidal, and called the Sheriffs Department. The garage was locked when a young deputy arrived. He called out to our client, and a call was put in to our client through dispatch telling him that the deputy wanted to come into the garage. Our client did not immediately act to let the deputy in. The deputy was there for less that a minute and a half when he decided to draw his weapon, break down the door and confront our client. Once inside the garage, he saw our client holding his gun. The deputy thought our client was going to shoot himself, and shot our client four times. Our client survived his injuries.