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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
CYNTHIA EASLEY,
Individually And as
Administrator of the
Estate of CHRISTOPHER B. EASLEY, Deceased,
Plaintiff,
v.
DAVID KIRMSEE, et al.,
Defendants.
Case No. 01-C-938
235 F. Supp. 2d 945
November 26, 2002,
Decided
On October
26, 2000, Christopher Easley was shot and killed by police officer David [*947]
Kirmsee. At the time of the shooting, Easley was acting under the
influence of alcohol and had cut himself several times with a knife, resulting
in loss of blood. Law enforcement officers from Lake Geneva, Geneva Township,
Linn Township, and Walworth County had been dispatched to the Easley home in
response to a 911 call from Christopher's mother Cynthia. When the officers
located Christopher in a subdivision in the City of Geneva, they ordered him to
drop the knife he was displaying. When Christopher charged Officer Kirmsee with
the knife, the officer shot him.
Cynthia,
who is the administrator of Christopher's estate, then filed this lawsuit in
which she claims that the Defendants violated Christopher's rights under the
Fourth and Eighth Amendments and the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. She also claims that they are
liable for battery, for breach of the duty to hire, train, and supervise, and
for wrongful death under Wisconsin law. She is seeking compensatory and
punitive damages pursuant to 42 U.S.C. § 1983 and state tort law.
The Defendants have
answered and denied liability and they
have all moved for summary judgment on the grounds that no material facts are
in dispute and that they are entitled to judgment as a matter of law. See
Federal Rule of Civil Procedure 56. The Plaintiff has not responded and her
time to respond has long passed. Therefore, the Plaintiff's right to respond is
deemed waived and the court will proceed to resolve the motions. See Civil
Local Rule 7.1.
I. FACTS
In support of their motion for summary judgment, the Defendants
have submitted a list of proposed findings of fact which are supported by
specific citations to evidentiary materials in the record. The Plaintiff has
not opposed any of the findings in the manner required by Civil Local Rule
56.2(b). Therefore, the court concludes that there is no genuine material issue
as to any of the Defendants' proposed findings, see LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389 (7th Cir.
1995), and, consequently, adopts the following findings:
1. Plaintiff, Cynthia Easley, individually and as administrator
of the estate of Christopher B. Easley, is an adult citizen of the State of
Wisconsin, who resides at W3527 Lakeview Drive, Lake Geneva, Wisconsin.
2. Plaintiff, Cynthia Easley, is the mother of Christopher
Easley, deceased. She has been separated from Christopher Easley's father,
William J. Easley, since February of 1999, but not legally divorced.
3. On October 26, 2000, decedent, Christopher Easley, resided
with his father, William J. Easley at W3547 Lakeview Drive, Town of Geneva,
Wisconsin.
4.
Christopher was eighteen years old at the time of the shooting. He was 6 feet
tall, right-handed, and weighed approximately 175-180 pounds. The year prior to
October 26, 2000, had been his worst year academically in school. He was being
influenced by his peers. He was indulging in drugs and alcohol. He had been in
a special education class for two and one-half years.
5. On October 26, 2000, Christopher did not have a car or a
driver's license.
6. At approximately 4:12 a.m. on October 26, 2000, Officer
Kirmsee arrested Christopher for operating a motor vehicle while intoxicated
after he had been involved in a one-vehicle accident. Christopher had a large
avulsion over his eye, his shirt was full of blood, and he smelled of
intoxicants. The vehicle [*948] had
been damaged, airbag deployed, and the windshield broken. Officer Kirmsee bandaged Christopher's head and waited
for the ambulance to arrive.
7. After the alcohol related arrest and a trip to the hospital
in the ambulance for stitches for his injuries from the auto accident,
Christopher was released to the care of his mother. His blood alcohol content
was 0.088.
§ 345.24, Wis. Stats.8. When Christopher was released from the
hospital to Mrs. Easley, as a responsible person under ., he was in a proper
emotional state and Mrs. Easley was not concerned that he may be a danger to
himself or others. Officer Giovannoni, who relieved Officer Kirmsee, indicated
that Christopher appeared embarrassed, sore, and groggy when he interviewed him
at the hospital. Mrs. Easley testified that Officer Giovannoni, in a very kind,
comforting and respectful manner, explained to Christopher the consequences of
his actions concerning being 18 and all the repercussions of his actions.
9. Mrs. Easley took Christopher home, fixed him breakfast and
gave him Tylenol. She then went back to work as she did not have any particular
concern that Christopher was a threat to himself or others. Nothing Christopher
did or said in connection with his arrest in the early morning hours of October 26, 2000, led Mrs.
Easley to believe her son was a threat to himself or anyone else.
10. Nothing Christopher did or said between picking him up from
the hospital that morning and when she returned from her swim meet that evening
led her to believe that Christopher was a threat to himself or anyone
else.
11. When
Mrs. Easley returned home around 9:45 p.m. from the swim meet in Madison, she
noticed a strong smell of alcohol. Christopher was in the kitchen, on the phone
(jovial/ laughing), with a large drink of some kind.
12.
Christopher knew he was not supposed to drink alcohol because he had problems
when he drank. When he was drinking, Christopher's behavior was unpredictable
and he could be quite violent.
13. Mrs. Easley poured the
alcohol down the sink. She then looked for the bottle and was intentionally
blocked by Christopher, who was still on the telephone, but she was able to get
the bottle and pour it down the sink.
14. Christopher started
yelling and getting physical after Mrs. Easley poured the alcohol down the
sink.
15. Christopher started punching and kicking the
cabinets. He screamed at his mother. He pulled drawers out and dumped the contents on the floor.
16. Christopher grabbed a knife and started cutting himself repeatedly
on the arms, drawing blood.
17. Although Mrs. Easley did not feel threatened, she knew Christopher
would try to hurt himself. He started cutting himself while she was on the
telephone to the police.
18. Mrs. Easley was trying to stop her son from
cutting himself. She grabbed his arm. He pushed her and she fell. Her youngest
son, Charles, came up from the basement.
19. As Mrs. Easley grabbed
Charles to leave the residence, Christopher followed, ramming his hand through
the glass in the front door. Before Mrs. Easley left the house with Charles, Christopher made a statement to the
effect of "This is it. I'm going to slit my throat."
20. Mrs. Easley was aware of
Christopher's past emotional problems. Officers Kirmsee and Linder had prior
contact [*949] with Christopher and were aware of
Christopher's prior suicidal tendencies.
21. Mrs. Easley got Charles
out of the house for his own safety. Although she never felt Christopher would
harm Charles or her, she did not know what Christopher was going to do next.
She knew he was not going to calm down soon.
22. Mrs. Easley knew that Christopher was going to cut
himself when he reached for the knife. He had done it before. Christopher was a
"cutter."
23. Mrs. Easley did not
contact any law enforcement officers or entities regarding Christopher between
when she picked him up at the hospital that morning and when she called 911
that night.
24. The Town of Geneva Police Department's officers
were dispatched to the Easley residence at approximately 9:54 p.m. on October
26, 2000, in response to a 911 call from Mrs. Easley. She felt that Christopher
was out of control and she did not know what he would do next.
25. Mrs. Easley told the 911 operator that her son had gone berserk; he
had a knife and was cutting himself and the police needed to hurry. She may
have said "go run" to her son, Charles, who was clinging to her, when
she was on the phone.
26. Mrs. Easley took Charles to her home, which was nearby. When at her
home she heard the door slamming and she knew Christopher was outside
somewhere. She thought he went into the woods at the side of the house.
27. Mrs. Easley believed Christopher would charge an officer, but stop
short, making you back away, not making physical contact. Mrs. Easley believed Christopher would make
the initial charge or lunge at the officer.
28. Mrs. Easley was yelling to Christopher, who
screamed twice before the police arrived.
29. The police arrived within five minutes after Mrs. Easley went back
to her husband's house. Ms. Easley provided no information about Christopher's
past psychiatric problems to any law enforcement officers on the scene after
her 911 call prior to the shooting.
30. Although Mrs. Easley
does not recall exactly what she discussed with the officers, she knew
Christopher had a violent temper. He would respond with his temper when he felt
threatened or defensive.
TOWN OF GENEVA PROPOSED
FINDINGS OF FACT
31. Defendants, David
Kirmsee, Robert Linder, and Sean Borkhuis, were at all times relevant to this
action, police officers employed by defendant, Town of Geneva Police
Department, located at N3496 Como Road, Lake Geneva, Wisconsin.
32. When Officers Borkhuis
and Kirmsee arrived at the Easley residence they noticed blood on the front entryway and were informed that
Christopher had left the residence on foot. Officer Kirmsee went inside the
residence and noticed blood all over the walls and floors, and things were thrown around.
33. It was believed that
Christopher took a walking path from his residence to the Edgewood Hills
Subdivision or the location of the shooting. The officers were informed by Mrs.
Easley which way she thought Christopher went, that he had cut himself, had
screamed at her, and had a knife.
34. While Sergeant Borkhuis was tracking Christopher through the yard,
and woods, he heard a gut wrenching scream and assumed Christopher had [*950]
hurt himself again. He was tracking Christopher by following his blood
path. The scream was also heard by Officer Kirmsee.
35. Officer Kirmsee notified dispatch of Christopher's description and
condition. The various police departments searched for approximately 45 minutes
and had the whole area around the Easley homestead blocked off, had K-9 units,
an infrared tracker from the fire department, and had an ambulance nearby.
36. When Christopher was located in a subdivision in the City of Geneva
at approximately 11:00 p.m., all the police departments responded to the area.
Sergeant Borkhuis stayed in the area of the Easley residence and directed
Officers Kirmsee and Linder to respond, as well as the paramedics.
37. The area where Christopher was found was lit up by the various
officer's flashlights and spotlights. When Officers Kirmsee and Linder arrived
at Edgewood Hills Subdivision, three additional squads were present.
Christopher was not in custody, was bloody and armed with a knife.
38. Officer Kirmsee watched Christopher walk to the front of a house.
The officer proceeded around the home, located Christopher, and kept a visual
on him. The officer drew his service weapon and followed Christopher up the
hill.
39. When Officer Kirmsee told Christopher to drop the knife,
Christopher stopped and began moving towards the officer, raising his arms up
and down, still holding the knife. Officer Kirmsee attempted to keep a distance
of approximately 35-40 yards. Several other officers had their weapons drawn.
40. Officer Kirmsee turned on his flashlight and yelled for Christopher
to stop and drop the knife.
41. Christopher continued walking toward Officer Kirmsee, raising the
knife and stating "fuck you". Christopher did state to Officer
Kirmsee "Are you still telling me what to do?", as Kirmsee began to
move away.
42. Officer Linder was next
to Officer Kirmsee with his weapon
drawn. Officer Kirmsee walked backwards away from Christopher. Christopher
moved towards Officer Kirmsee, then away from Kirmsee, then charged down the
hill towards Officer Kirmsee with knife in hand.
43. Officer Kirmsee did not
turn and run from Christopher as he did not want to turn his back. The officers
were trying to contain Christopher so he did not get away. Officer Kirmsee had
no where else to go. From Officer Kirmsee's training prior to October 26, 2000,
the distance requirement to react to an
edged weapon is within a 21' barrier.
44. As Officer Linder
watched Christopher charge Officer Kirmsee, he could not believe that Officer
Kirmsee had not shot Christopher yet. Officer Linder's estimate of the distance
between Christopher and Officer Kirmsee at the time of the shooting was
approximately 15 feet.
45. On October 26, 2000, at
approximately 11:13 p.m., Officer David Kirmsee shot Christopher to death.
Christopher still had the knife in his hand when he hit the ground.
Christopher's blood alcohol level at the time of the shooting was 0.14. At the
time of the shooting, Officer Kirmsee believed he was in immediate risk of
death or grave bodily injury because of
Christopher's actions.
46. Officer Kirmsee did not
consider his baton or O.C. spray because it would have put him in danger. He
shot Christopher in the chest as he was trained to do.
[*951] 47. The Town of Geneva Police Department
does not have a negotiator, suicide squad or response team. A negotiator was
not called in as Christopher was missing and they were searching for him. From
the time Christopher was found in the subdivision, to the time he was shot, was
a matter of minutes.
48. Prior to their
employment as police officers for the Town of Geneva, Officers Kirmsee,
Borkhuis, Linder and Giovannoni had obtained a certification from the State of
Wisconsin for successfully completing all mandated state training requirements
and were qualified to hold the position of sworn police officers.
49. Through the state
certification training, Officers Kirmsee, Borkhuis, Linder and Giovannoni
received state mandated training on the use of force, both deadly and
non-deadly, as well as training on the continuum of force.
50. Officers Kirmsee,
Borkhuis, Linder, and Giovannoni, as officers employed by the Town of Geneva,
have gone through training received during the state certification process and
in the continued annual training, all officers for the Town of Geneva received
training not only in the use of deadly force, but also training on how to
respond to individuals who may be suicidal and/ or emotionally disturbed.
51. In addition to all
officers for the Town of Geneva being state certified, including, but not
limited to, Officers Kirmsee, Borkhuis, Linder and Giovannoni, have complied
with and exceeded mandatory training as set forth by the State of Wisconsin,
which includes both in-house and out-house training and that this annual
training exceeds the 24-hour mandated training required by the State of
Wisconsin.
52. On October 26, 2000, at
the time of the incident/ shooting leading to the above-captioned lawsuit, the
Town of Geneva had a written policy regarding the use of force which Officer
Kirmsee and all sworn officers for the Town of Geneva had been made aware of
and signed before becoming a sworn police officer for the Town of Geneva.
53. Prior to October 26,
2000, the Town of Geneva Police Department had not been involved in an incident
involving the shooting of a suspect.
54. Subsequent to
October 26, 2002, [sic] officers employed by the Town of Geneva have
been involved in the arrest and/ or detention of emotionally disturbed
individual or suicidal individuals who responded in violent manners to the
individual's arrest or detention. Although the controlled use of force was
necessary, the arrests and/ or detentions did not necessitate he [sic] use of
deadly force.
55. Officer Giovannoni was
the firearms instructor for the Town of Geneva and had instructed Officer
Kirmsee at the firing range on October 24, 2000. Part of Officer Kirmsee's
training is the use of deadly force. Once the criteria for a threat of great
bodily harm were met, Officer Kirmsee was taught to shoot at the center mass or
main part of the body to stop the threat. If the threat did not stop, Officer
Kirmsee was to elevate that shot group to the head to eliminate that threat.
Officer Kirmsee is trained to shoot more than once to stop the threat. The
training includes to shoot until the threat is eliminated.
56. The Circuit Court of
Walworth County, State of Wisconsin, held a jury inquest (case no. 00-Cl-1). As
a result of the four-day inquest, Officer Kirmsee was acquitted from any
wrongdoing from his actions in this
shooting. The jury found he acted in self defense.
57. Due to multiple local
governmental police departments responding, the [*952] State of Wisconsin, Division of Criminal
Investigation, was summoned by the departments to investigate the shooting.
TOWNSHIP OF LINN'S PROPOSED
FINDINGS OF FACT
58. Officer James ROZENSKI
was employed by the Township of Linn as a police officer on October 26, 2000.
59. Officer Edward Gritzner,
III, was employed as a patrol officer for the Township of Linn on October 26,
2000.
60. Prior to the start of
his work shift, Officer ROZENSKI learned that the Town of Geneva Police
Department was looking for Christopher Easley and that Christopher was a
potential suicidal individual.
61. While on duty as a
police officer, Officer Gritzner learned that the Geneva Police Department was
attempting to locate Christopher, who had been injured and had fled from his
house.
62. Based upon the
information Officer Rozenski had obtained (that being that Christopher was a
potential suicidal individual and that the Town of Geneva Police Department was
searching for Christopher), he reported to work prior to his normal starting time.
63. After hearing that the
Town of Geneva Police Department was looking for Christopher, Officer Gritzner
drove his squad car to the most northerly end of the Township of Linn's
jurisdiction because he had learned that Christopher had fled from this
residence in the Town of Geneva and Officer Gritzner had been informed that
Easley's residence was relatively close to the northern end of the Township of
Linn's jurisdiction.
64. Prior to October 26,
2000, Officer Rozenski had never had any police contact with Christopher, had
never personally met Christopher, and had no knowledge from any source regarding Christopher's
physical or mental status.
65. Officer Gritzner had
never had any official contact with Christopher and while Officer Gritzner knew
who Christopher was, he never had any personal contact with him, nor did
Officer Gritzner have any knowledge whatsoever regarding Christopher's physical
and/ or mental status prior to October 26, 2000.
66. Based upon the knowledge
Officer Rozenski had obtained regarding the fact that Christopher was a
potential suicidal individual, he intended to drive to the intersection of
Schofield Road and McDonald Road.
67. While in route to
Schofield Road and McDonald Road, Officer ROZENSKI heard from radio
communication that Christopher had been located in a residential subdivision
known as Edgewood Hills and he immediately drove to that area.
68. Upon arriving at the
intersection of Schofield Road and McDonald Road, an area which is wooded and
approximately one-quarter mile from the Easley residence, Officer Gritzner
parked his squad car in order to determine if he could observe Christopher and
to assist other police jurisdictions who were continuing to attempt to locate
and contain Christopher.
69. While parked at
Schofield Road and McDonald Road, Officer Gritzner learned through police
communications that Christopher had been located in Edgewood Hills Subdivision,
a residential community, and Officer Gritzner immediately responded to that
area.
70. After responding to
Edgewood Hills Subdivision, Officer ROZENSKI parked his vehicle on Promontory
Drive and Edgewood Drive and first observed Christopher, who at that time was
approximately 20 yards from his location.
71. After arriving at the
intersection of Promontory Drive and Edgewood [*953] Drive in Edgewood Hills Subdivision, Officer Gritzner was able to observe Christopher who at that
time was approximately 20-30 yards from his location on Promontory Drive.
72. Officer Rozenski's first
observation of Christopher was that he was pacing back and forth in the middle
of Promontory Drive and that he was holding a large blade knife and was cutting
his wrists and throat with the knife he was holding.
73. Officer Gritzner's first
observation of Christopher was that he was standing on the roadway of
Promontory Drive. Christopher was shouting and was incomprehensible.
74. Officer ROZENSKI recalls
Christopher continuing to pace back and forth on Promontory Drive when other
police officers present directed Christopher to drop the knife he was holding.
However, Christopher did not respond to these requests.
75. After observing
Christopher on Promontory Drive continuing to shout and being incomprehensible,
Officer Gritzner ordered Christopher, along with other officers, to drop the
knife he was holding and Officer Gritzner informed Christopher he would be
obtaining medical assistance for him if he wished the same.
76. Christopher's only response to the offer of assistance and
request and demands made of him to
drop the knife was to continue shouting incomprehensibly and to scream and he
proceeded to cut himself with the knife he was holding on the wrists and
throat.
77. Christopher then stopped
pacing on Promontory Drive and commenced to walk in a westerly directly into a
residential community that bordered Promontory Drive.
78. After observing
Christopher walking into a residential community and after observing
Christopher walking away from him, Officer ROZENSKI re-entered his squad car
and drove in a westerly direction into the subdivision in order to contain
Christopher and in an attempt to prevent Christopher from entering a large
wooded area, and further, drove in a westerly direction in an attempt to
provide police protection for the residents of the community in which
Christopher was now walking through.
79. After observing
Christopher walk in a westerly direction into a backyard of a residence,
Officer Gritzner followed Christopher in an attempt to contain him and to
prevent him from entering the private residence of which he was now in close
proximity of.
80. As Officer ROZENSKI was
driving into the subdivision he observed Christopher in the backyard of a residential home and observed him
walking in the direction of an individual who was later identified as Officer
Kirmsee.
81. At the time Officer
ROZENSKI observed Christopher walking in the direction of Officer Kirmsee,
Officer ROZENSKI was in his squad car and approximately 30 yards from
Christopher.
82. As Christopher continued
to walk in a westerly direction, Officer Gritzner followed him but however
continued to remain 20-30 yards from him at all times.
83, As Christopher continued
to walk in a westerly direction, Officer Gritzner observed Officer Kirmsee
approximately 15-20 feet away from Christopher. At the time Officer Gritzner
made this observation in relationship to the location of Officer Kirmsee, he
was 20-30 yards away from Christopher and Officer Kirmsee was between himself
and Christopher.
84. After observing
Christopher walking in the direction of Officer Kirmsee, [*954] Officer ROZENSKI stopped the vehicle he was
driving and was in the process of exiting the vehicle when he heard what he
believes to be four or five gunshots.
85. Immediately after
hearing the gunshots, Officer ROZENSKI ran in the direction of Christopher and
Officer Kirmsee to offer whatever
assistance may be necessary.
86. When Officer Gritzner
was approximately 20-30 yards away from Christopher he was able to overhear a
brief dialog between Officer Kirmsee and Christopher wherein Officer Kirmsee
directed Christopher to drop the knife he was holding. The only response
Christopher gave was to ignore Officer Kirmsee's request and continued to shout
and scream incoherently.
87. Officer Gritzner
observed Christopher suddenly and without warning run directly in the direction
of where Officer Kirmsee was located.
88. Based upon the close
proximity of Christopher and Officer Kirmsee and because Officer Gritzner was
60-90 feet from Christopher, who was running directly towards Officer Kirmsee,
who was between Officer Gritzner and Christopher, and based upon Christopher's
sudden quick movements, Officer Gritzner did not have the opportunity to
respond in any manner.
89. Officer Gritzner
observed Kirmsee attempting to evade Christopher by moving in a backward
direction when he heard Officer Kirmsee discharge his service weapon.
90. From the point in time
when Officer Gritzner first observed Officer Kirmsee and Christopher, until
Officer Gritzner observed Christopher
suddenly and without warning run in the direction of Officer Kirmsee, only
several seconds had passed.
91. From the point in time
when Officer Gritzner was able to observe Christopher run in the direction of
Officer Kirmsee, up until he heard the discharge of Officer Kirmsee's service
weapon, less than five seconds had passed.
92. Prior to his employment
as a sworn police officer for the Town of Linn, Officer ROZENSKI had obtained a
certification from the State of Wisconsin for successfully completing all
mandated state training requirements and was qualified to hold the position of
a sworn police officer.
93. Prior to his employment
as a sworn police officer for the Town of Linn, Officer Gritzner had obtained a
certification from the State of Wisconsin for successfully completing all
mandated state training requirements to hold the position of a sworn police
officer.
94. Through the state
certification training process, Officer ROZENSKI received state mandated
training in the use of force, both deadly and non-deadly, as well as training
on the continuum of force.
95. Through the state certification
training he received, Officer Gritzner received state mandated training on the
use of force, both deadly and non-deadly, as well as training on the continuum
of force.
96. All officers employed by
the Town of Linn had gone through training received during the state
certification process, and in the continued annual training, all officers for
the Town of Linn receive training not only in the use of deadly force, but also
training on how to respond to individuals who may be suicidal and/ or
emotionally disturbed.
97. In addition to all
officers who are employed by the Town of Linn being state certified, all
officers being employed [*955] by the Town of Linn have complied with and
exceeded mandatory training as set forth by the State of Wisconsin, which
includes both in-house and out-house training and that this annual training
exceeds the 24-hour mandated training required by the State of Wisconsin.
98. The Township of Linn has
a written policy regarding the use of force.
99. No officer from the
Township of Linn had been involved in any capacity with the discharge of a
service weapon, other than in the capacity of animal control, since June, 1998.
100. Subsequent to June,
1998, no officer employed by the Township of Linn has been involved in the arrest and/ or
detention of an emotionally disturbed individual or suicidal individual who
responded in any violent manner to that individual's arrest or detention and/
or whose conduct necessitate the use of force, deadly or otherwise, by a
responding police officer from the Township of Linn.
CITY OF LAKE GENEVA'S
PROPOSED FINDINGS OF FACT
101. Officer William W.
Walser, on October 26, 2000, was a sworn police officer employed by the
defendant, City of Lake Geneva Police Department, located at 626 Geneva Street,
Lake Geneva, Walworth County, State of Wisconsin.
102. At approximately 10:00
p.m. on October 26, 2000, Officer Walser was on duty and was aware of a call
from the Walworth County Sheriff's Department that all law enforcement agencies
in the area should be on alert for a potentially suicidal individual in Geneva
Township that had fled his residence on foot and was armed with a knife.
103. At approximately 11:00
p.m. Officer Walser entered the Edgewood Hills Subdivision, which was located
in the City of Lake Geneva, Wisconsin.
104. After entering the
subdivision, Officer Walser observed in the middle of the road, a male subject
approximately 25 feet in front of his car, who was holding a knife in his right
hand and was covered with blood. This person was later identified as
Christopher Easley.
105. After Christopher
raised his knife in the air, Officer Walser called Sergeant Michael Reuss of
the City of Lake Geneva Police Department, requesting backup and informing him
that he believed he located the individual who was the subject of the prior
bulletin by Walworth County.
106. Officer Walser
repositioned his car facing towards Christopher and activated his emergency
lights. Using his loud speaker, Officer Walser ordered Christopher on the
ground and to drop his knife.
107. While Christopher did
get down on the ground, he refused to drop the knife.
108. Officer Walser started
to approach Christopher with his gun drawn. Officer Walser drew his gun since
he felt threatened by the knife that Christopher refused to drop.
109. When Officer Walser was
within ten feet, Christopher jumped up and started running towards Officer
Walser with the knife in the air and yelling "ROAR" as he ran.
110. Officer Walser
retreated to his car and reversed his car up the hill away from Christopher.
111. Officer Walser
repeatedly directed Christopher to drop the knife and get on the ground, which
Christopher refused to do.
112. After Officer Walser
approached Christopher a second time, Christopher [*956] again jumped up
and chased Officer Walser yelling, "DIE FUCKER".
113. Officer Walser
retreated again and reversed his car further up the hill, which created more of
a distance between Officer Walser and Christopher.
114. Officer Walser observed
Christopher swiping the knife back and forth at his neck and wrist area but
could not determine if he was actually cutting himself.
115. Shortly thereafter,
back-up units arrived on the scene, which included Sergeant Reuss of the City
of Lake Geneva Police Department, as well as officers from other
municipalities.
116. Sergeant Reuss
proceeded to the location of Officer Walser on the top of the hill while the
other officers remained near the entrance of the subdivision.
117. Sergeant Reuss
questioned Officer Walser whether he had less-than-lethal gun in his
possession, which Officer Walser responded that he did not.
118. Christopher started
running through a resident's back yard; Officer Walser and Sergeant Reuss
repositioned their vehicles in an effort to contain Christopher to that area.
119. Officer Walser never touched
Christopher, nor ever placed him under his control.
120. Shortly thereafter,
Officer Walser heard, by radio, that shots had been fired.
121. Following the incident
on October 26, 2000, Officer Walser prepared a formal report and follow-up
report identifying his actions and recollections of the incident in question.
These reports are a true and accurate account of Officer Walser's recollections
of the incident in question.
122. On February 12 and 14,
2000, Officer Walser provided testimony at the inquest hearing investigating
the death of Christopher. The testimony provided by William Walser was true and
correct and was based on his report and independent recollections of the
incident in question.
123. At the time of the
incident, the City of Lake Geneva had in place a written policy regarding the
use of force, which was followed by Officer Walser when dealing with
Christopher.
124. Prior to this incident,
Officer Walser had never been involved in any incident similar to that with
Christopher which involved an emotionally disturbed/ suicidal individual whose
conduct necessitated the use of force by a responding officer.
125. Prior to the date of
this incident, Officer Walser had never had any police contact with Christopher
and was unaware of his prior physical or emotional problems.
126. Prior to his employment
as a police officer with the City of Lake Geneva Police Department, Officer
Walser completed all the necessary state mandated training and received the
appropriate certification from the State of Wisconsin for the position of a
sworn police officer.
127. As part of both the
state certification training process, and continuing training, Officer Walser
received instruction and training on the use of force, as well as how to deal
with disturbed individuals. Officer William Walser also received training about
the deadly threat posed by individuals who are armed with a knife.
128. Since being certified
as a sworn police officer, Officer Walser has complied with and exceeded the
24-hours per year mandated continuing training set forth by the State of
Wisconsin.
129. This matter was
reviewed in an inquest in February of 2001 with the testimony of over 31 individuals
over three days. At the completion of
the [*957] inquest, there was a finding that no wrongdoing by any of the
officers involved.
WALWORTH COUNTY'S PROPOSED
FINDINGS OF FACT
130. Walworth County
Sheriff's Deputies are trained principally by the State of Wisconsin, in
accordance with standards developed and maintained by the Law Enforcement
Standards Board of the Wisconsin Department of Justice.
131. This course of training
provides instruction on all aspects of a law enforcement officer's duties and
responsibilities, including the use of force, both deadly and non-deadly, the
use of firearms, and contacts with emotionally disturbed persons, including the
involuntary commitment of such persons under Chapter 51 of the Wisconsin
Statutes.
132. Once a Walworth County
Sheriff's Deputy is certified by the State, he or she must maintain that
certification by completing a minimum of 24-hours of in-service training
approved by the Law Enforcement Standards Board every year.
133. In addition, deputies
also must complete a field training program with the Department.
134. This four-month long
field training program provides officers with standardized training in the
policies and procedures of the Walworth
County Sheriff's Department and includes step-by-step, on-the-job training in
all aspects of the Department's operations, with periodic assessments of the
officers' performance.
135. As part of this field
training program, deputies are required to familiarize themselves fully with
the polices and procedures of the Department, including those that pertain to
the use of force, both deadly and non-deadly.
136. Sergeant Roger
Farnsworth and Deputies Keith Mulhollon, Robert Craig, and Jason Hintz are
certified as law enforcement officers by the State, and each has maintained
this certification by completing the required in-service each year.
137. Sergeant Farnsworth and
Deputies Mulhollon, Craig and Hintz each completed the Department's field
training program.
138. The Department
maintains a special weapons and tactics ("SWAT") team for use in
responding to critical incidents involving, among other things, the taking of
hostages, armed or potentially armed suspects who have barricaded themselves in specific locations, and
shootouts.
139. The SWAT team may only
be activated by a supervisor on duty, and, once activated, the SWAT team generally requires at least 45 minutes to assemble and arrive on
location.
140. Sergeant Farnsworth was
working as the patrol shift supervisor on the evening of October 26, 2000. His
shift was scheduled to run from approximately 2:45 p.m. to 11:15 p.m. that
evening.
141. Deputies Mulhollon,
Hintz, and Craig were assigned to work 3:00 p.m. to 11:00 p.m. shifts on patrol
duty for the Department on October 26, 2000.
142. Prior to the events of
that night, Sergeant Farnsworth and Deputies Mulhollon, Hintz, and Craig had
never met Christopher, and they were not aware of any information regarding
Christopher's medical or criminal history.
143. At approximately 10:00
p.m. that evening Sergeant Farnsworth and Deputies Mulhollon, Hintz, and Craig
received radio transmissions informing them of a 911 call within the jurisdiction
of the Town of Geneva Police Department.
[*958] 144. By virtue of the radio transmissions,
each was aware that the Town of Geneva Police Department was searching for a
young man who had cut himself with a knife during a dispute and that the young
man (who they later learned to be Christopher) had fled his residence with the
knife.
145. At approximately 10:10 p.m. Sergeant Farnsworth responded to
the Easley residence.
146. Upon his arrival,
Sergeant Farnsworth spoke with Sergeant Sean Borkhuis of the Town of Geneva
Police Department, who confirmed for Sergeant Farnsworth the information that
Farnsworth had heard over the radio and, in addition, informed Farnsworth that
Christopher had lost a significant amount of blood before he fled the Easley
residence and was believed to be in a highly angered state.
147. Following his
conversation with Sergeant Borkhuis, Sergeant Farnsworth assisted in
coordinating the various law enforcement officers on the scene in their search
for Christopher in the woods and grassy areas surrounding the Easley residence.
148. During the search of
the area of the Easley residence, a K-9 unit from the Sheriff's Department was
called in to assist, and members of the City of Lake Geneva Fire Department
were also involved in the search, using thermal heat imaging devices.
149. As the highest ranking
member of the Sheriff's Department on the scene, Sergeant Farnsworth's goal
during the search was simply to locate Christopher to make sure that he did not
do further harm to himself or to a member of the general public in the neighboring residential areas.
150. Sergeant Farnsworth did
not call for the Sheriff Department's SWAT team to respond to the scene of the
search because he felt the incident had not yet evolved into one involving a
tactical situation requiring the team (such as a hostage taking, a shootout, or
an armed person barricaded in a stationary location) and the location of
Christopher was not yet known.
151. Deputy Mulhollon
arrived at the Easley residence after 10:00 p.m. Upon his arrival, Mulhollon
was assigned by Sergeant Farnsworth to assist the other law enforcement
personnel on the scene in searching for Christopher in the woods and grassy
areas surrounding the Easley residence.
152. During his search,
Deputy Mulhollon observed a large amount of blood near the entryway to the home
and a trail of blood leading away from the home. He also observed Christopher's
mother on the scene, who was wearing bloodstained clothes at the time.
153. Deputy Hintz arrived at
the Easley residence at approximately 10:10 p.m. When he first arrived, he
spoke with Police Officer David Kirmsee of the Town of Geneva Police
Department.
154. Officer Kirmsee informed Deputy Hintz that he had been
inside the Easley residence and that Christopher had lost a lot of blood before
he fled the home. Officer Kirmsee suggested that, as a result, Christopher
might well have passed out in the tall grass in the neighboring fields.
155. After speaking with
Officer Kirmsee, Deputy Hintz joined the other law enforcement officers on the
scene in searching for Christopher in the woods and grassy areas that surround
the Easley residence. During his search, he observed a number of blood trails
leading away from the Easley residence.
156. Deputy Craig responded
to the Easley residence. When he arrived on the scene, he spoke with Officer
Kirmsee, [*959] who verified the information Craig had
first heard broadcast over the radio.
157. After speaking with
Officer Kirmsee, Deputy Craig assisted in searching for Christopher in the
vicinity of the Easley residence by trying to follow the blood train from the
house into the grassy areas and woods that surrounded the house.
158. Shortly after 11:00
p.m., Sergeant Farnsworth received a call over his hand-held police radio
indicating that an officer of the City of Lake Geneva Police Department might
have located Christopher in the
Edgewood Hills Subdivision in the City of Lake Geneva. Up until that time, he
and the other Deputies involved in the search were still in the immediate
vicinity of the Easley residence.
159. At that point, Deputy
Keith Mulhollon and other law enforcement officers responded to the scene of
the possible sighting to assist. Sergeant Farnsworth instructed Deputies Craig
and Hintz to remain behind with him in the area of the Easley residence,
however, in case the possible sighting turned out to be unfounded.
160. As a result, Sergeant
Farnsworth and Deputies Craig and Hintz were still at the scene of the Easley
residence when Christopher was shot in the Edgewood Hills Subdivision.
161. Deputy Mulhollon
arrived at the Edgewood Hills Subdivision, which is roughly two to three miles
from the Easley residence, shortly after 11:00 p.m.
162. When Deputy Mulhollon
drove on to the scene, he observed Christopher
standing in a residential yard at the corner of Edgewood Road and
Promontory Drive.
163. Christopher was holding
a kitchen knife, which he was switching back and forth between his hands, and
he had blood on his hands and shirt.
164. As Deputy Mulhollon pulled up in his squad
car, he could hear that Christopher was yelling at other law enforcement
officers already on the scene. He could also hear the other law enforcement
officers on the scene speaking to Christopher.
165. When Deputy Mulhollon
pulled up, Christopher began to move across the lawn where he had been
standing. Remaining in his car, Deputy Mulhollon followed Christopher along the
roadway, using his spotlight to keep him in his view.
166. When Christopher moved
onto a hill in an open area behind the row of houses, Deputy Mulhollon then
stopped his squad car and got out of the car.
167. Deputy Mulhollon began
to move towards Christopher, who was at that point approximately 100 feet away
from him.
168. At that time, Deputy
Mulhollon could observe Officer Kirmsee between him and Christopher. Mulhollon
could hear Officer Kirmsee shouting to Christopher that he should drop the
knife and stop.
169. As Deputy Mulhollon
moved toward them, Christopher began moving quickly down the hill where he had
been standing towards Officer Kirmsee.
170. Officer Kirmsee was
backing up, continuing to shout at Christopher to drop the knife and stop.
171. Christopher ignored
Officer Kirmsee's commands, continuing to move quickly at Officer Kirmsee down
the hill.
172. As he moved towards
Officer Kirmsee, Christopher raised the knife above his shoulder, pointing the
blade of the knife at Officer Kirmsee.
[*960] 173. As Christopher moved down the hill
towards Officer Kirmsee with the knife, Officer Kirmsee fired his service gun
at Christopher.
174. At the time Officer
Kirmsee fired his gun at Christopher, Officer Kirmsee was directly between
Deputy Mulhollon and Christopher.
175. At that moment, Deputy
Mulhollon was still approximately 45 to 50 feet away from Christopher and
Officer Kirmsee.
176. The shooting occurred
no more than one to two minutes after Deputy Mulhollon initially arrived on the
scene in the Edgewood Hills Subdivision.
177. Only seconds passed
between the time when Christopher began to charge at Officer Kirmsee with the
knife and when Officer Kirmsee fired his gun at Christopher.
178. As Christopher moved
down the hill at Officer Kirmsee, Deputy Mulhollon believed that Officer
Kirmsee was in immediate risk of death or grave bodily injury because of Christopher's actions.
179. Deputy Mulhollon did not fire his service weapon because Officer
Kirmsee was in between him and Christopher.
180. Following the shooting,
Sergeant Farnsworth transported Christopher's mother, Cynthia Easley, to the
hospital. Mrs. Easley informed him that she believed that it was possible that
her son, if he was upset enough, could have lunged at a law enforcement officer
with the knife.
Defendants' Joint Statement
of Undisputed Facts Under Local Rule 56.2(a) at PP 1-180.
II. LEGAL STANDARDS FOR SUMMARY JUDGMENT
Summary judgment is appropriate only where "there is no
genuine issue of material fact" and the movant is entitled to judgment as
a matter of law. Federal Rule of Civil Procedure 56(c). In determining whether
a genuine issue of fact exists, the court examines the record as a whole,
viewing all the evidence of record in the manner most favorable to the
nonmovants. See Glass v. Dachel, 2
F.3d 733, 740 (7th Cir. 1993). If the moving party meets its initial burden of
showing that there is no genuine issue, then the burden shifts to the nonmovant
to set forth specific facts showing the existence of a genuine issue. See
Federal Rule of Civil Procedure 56(e). Where, as here, the
party opposing summary judgment fails to respond to the facts set out by the
movant, the court may assume those facts to be admitted and use them in
determining whether the movant is entitled to judgment as a matter of law.
See Waldridge v. American Hoechst
Corporation, 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases).
The nonmovant cannot satisfy her summary judgment burden with
conclusory allegations, unsubstantiated assertions, or a mere scintilla of
evidence. Moreover, allegations, in a complaint do not constitute evidence.
See Hughes v. Joliet Correctional
Center, 931 F.2d 425, 428 (7th Cir. 1991). When the nonmovant completely fails
to respond, n1 then summary judgment, if appropriate, can be entered against
that party. See Federal Rule of Civil Procedure 59(e). However, summary
judgment cannot be granted merely because the opponent of the motion fails to
respond. See Cooper v. Lane, 969
F.2d 368, 370-71 (7th Cir. 1992). Summary judgment is appropriate only if no
material facts are in dispute [*961]
and the moving parties are entitled to prevail as a matter of law. See Tobey
v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993); Big O Tire Dealers, Inc. v. Big O Warehouse,
741 F.2d 160, 163 (7th Cir. 1984); Thornton v. Evans, 692 F.2d 1064, 1075 (7th
Cir. 1982).
III. DISCUSSION AND DECISION
A. FEDERAL CLAIMS
1. Eighth Amendment and Due Process
In the Complaint, the Plaintiff claims that her decedent was
subjected to "cruel and unusual punishment as secured ... under the Eighth
Amendment to the United States Constitution, and of his right not to be
deprived of life, liberty, or property without due process of law ...."
Complaint at Law at P 22. In moving for summary judgment, the Defendants argue
that, because Easley was not a prisoner at the time of his seizure and death,
the Eighth Amendment does not apply.
At the time the
Plaintiff claims that Christopher Easley's rights were violated, police
officers were attempting to seize or arrest him. Because Christopher was not a
convicted state prisoner, the Eighth Amendment's prohibition on cruel and
unusual punishment does not apply to him. See Estate of Cole by Pardue v.
Fromm, 94 F.3d 254, 259 n.1 (7th Cir. 1996), cert. denied, 519 U.S. 1109
(1997).
Similarly, the Due Process Clause of the Fourteenth Amendment
applies only to rights of a pretrial detainee. See Id. Because Christopher
Easley was not a pretrial detainee, a claimed violation of the Due Process
Clause cannot afford the Plaintiff relief.
The United States Supreme Court has ruled that "all claims
that law enforcement officers have used excessive force--deadly or not--in the
course of an arrest, investigatory stop, or other 'seizure' of a free citizen
should be analyzed under the Fourth Amendment and its 'reasonableness' standard
...." Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct.
1865 (1989). Therefore, because there is no legal basis for the Plaintiff's
Eighth Amendment and Due Process Clause claims, summary judgment in
favor of the Defendants will be granted on them.
2. Equal Protection
The Complaint also contains a claim that the Plaintiff was
deprived of equal protection. The Defendants have challenged this claim by
speculating that it is the same cause of action the Plaintiff tried to assert under
the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. See Order
of October 2, 2002. See also Hainze
v. Richards, 207 F.3d 795, 801-02 (5th Cir.), cert. denied, 531 U.S. 959, 148
L. Ed. 2d 296, 121 S. Ct. 384 (2000) (Title II of the Americans With
Disabilities Act prohibiting discrimination on the basis of disability by
public entities and requiring reasonable accommodation of disabled person's
limitations does not apply to officer's on-the-street response to a
disturbance, whether or not the disturbance involves a person with a
disability, prior to the officer's securing the scene and ensuring that there
is no threat to human life).
The ADA claim was rejected in denying the Plaintiff's motion to
amend the Complaint. See Order of October 2, 2002. In response to the instant
summary judgment motions, the Plaintiff
has presented no specific facts or arguments supporting the claim.
Therefore, the court deems the claim waived.
3. Fourth Amendment
a. Municipal Liability
In the
Complaint, the Plaintiff alleges that:
Defendants Lake Geneva,
Geneva Township, Linn Township and Walworth [*962] County were responsible for the training of all members of their
respective police forces in the proper use of firearms in the performance of
their duties and in their confrontation with disturbed individuals and failed
to do so.
Complaint at Law at P 21. The Plaintiff says that the municipalities
had a "duty to hire and train persons qualified and trained to properly
subdue such persons [as Christopher Easley] while inflicting the least harm
possible, and stopping short of shooting such individuals to death. Such
guidelines did or should have included training in non-fatal restraint of
mentally ill and/ or suicidal persons involving, among other things, the use of
family members, psychiatric facilitators, rubber bullets, nets, bean bag, night
stick, pepper spray, tear gas, and/ or non-fatal gunshots." Id. at P 33.
The four
municipal Defendants, Lake Geneva, Geneva Township, Linn Township, and Walworth County, have moved for summary
judgment on this failure to train claim on the ground that the Plaintiff cannot
prove the essential elements of a municipal liability claim which were set
forth in Monell v. New York Department of Social Services, 436 U.S. 658, 694,
56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). In that case the United States Supreme
Court held that a municipality may be held liable for violating the civil
rights of a person only if the injury is inflicted pursuant to an
unconstitutional policy or custom.
The Seventh Circuit has explained the general requirement for
establishing municipal liability as follows:
Strict constraints limit
municipal liability under 42 U.S.C. § 1983. In Monell v. Dep't of Soc. Serv. of
City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611
(1978), the Supreme court expressly restricted such liability to cases in which
"the action that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation or decision officially adopted and
promulgated by that body's officers." A plaintiff seeking to find a
municipality liable under § 1983 must
establish a causal nexus between his injury and the municipality's alleged
policy or custom. Id. at 693-94, 98 S.
Ct. at 2037-38. "Otherwise, we would risk creating de facto respondeat
superior liability, which is contrary to Monell." Cornfield By Lewis v. Consolidated High
School Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993) (citing Monell, 436
U.S. at 693-94, 98 S. Ct. at 2037-38).
Palmquist v. Selvik, 111
F.3d 1332, 1343-44 (7th Cir. 1997).
The Seventh Circuit has also explained the requirements for a
failure to train claim:
In City of Canton v. Harris,
489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989), the Supreme Court
reiterated that a municipality may, in restricted circumstances, be held liable
under § 1983 for constitutional violations resulting from its failure to train
its police officers. Id. at 387, 109 S. Ct. at 1203-04. But the Court well
circumscribed its holding: "The inadequacy of police training may serve as a basis for § 1983 liability only
where the failure to train amounts to deliberate indifference to the
rights of persons with whom the police
come into contact." Id. at 388, 109 S. Ct. at 1204 (footnote omitted).
"Moreover, for liability to attach in this circumstance the identified
deficiency in a city's training program must be closely related to the ultimate
injury .... To adopt lesser standards of fault and causation would open
municipalities to unprecedented liability under § 1983." Id. at 391, 109
S. Ct. at 1206.
Thus, "an allegation of
'failure to train' is available only in limited circumstances." [*963]
Cornfield, 991 F.2d at 1327. To prevail on such a claim, the estate had
to show that Bensenville failed to train its police officers in a
"relevant respect," and that the failure to train evidences a
deliberate indifference to its citizens' rights. Id. (citing City of Canton,
489 U.S. at 389, 109 S. Ct. at 1205). In City of Canton, the Supreme Court
elucidated this standard:
Only where a failure to train reflects a "deliberate" or
"conscious" choice by a municipality--a "policy" as defined
by our prior cases--can a city be liable for such a failure under § 1983.
Monell's rule that a city is not liable under
§ 1983 unless a municipal policy causes a constitutional deprivation
will not be satisfied by merely alleging that the existing training program for
a class of employees, such as police officers, represents a policy for which
the city is responsible .... It may happen that in light of the duties assigned
to specific officers or employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need. In that event, the failure
to provide proper training may fairly be said to represent a policy for which the
city is responsible, and for which the city may be held liable if it causes
injury.
Id. at 389-90, 109 S. Ct. at
1205 (footnotes omitted). In Cornfield, this court added to this understanding:
In order to ensure that
isolated instances of misconduct are not attributable to a generally adequate
policy or training program, we require a high degree of culpability on the part
of the policymaker. Coupled with a causation requirement, this standard ensures
that the violation alleged is not too
far removed from the policy or training challenged as inadequate. Taken
together, these two considerations amount to a requirement that liability be
based on a finding that the policymakers have actual or constructive notice
that a particular omission that is likely to result in constitutional
violations.
991 F.2d at 1327.
Palmquist v. Selvik, 111
F.3d at 1344.
In this
case the Defendants have submitted affidavits and other evidence showing that
the individual officers from the municipalities received training in the use of
force. See Defendant's Joint Statement of Undisputed Facts Under Local Rule
56.2(a) at PP 48, 49, 50, 51, 52, 55, 92, 93, 94, 95, 96, 97, 98, 126, 127,
128, 130, 131, 132, 133, 134, 135, 136, 137, 138 and 139 and evidence in the
record cited therein. By failing to respond to the summary judgment motions,
the Plaintiff has introduced nothing into the record to show that she can prove
that the training was inadequate. Therefore, because the Plaintiff has failed to raise any issue of fact as to
whether the municipalities failed to train its law enforcement officers in a
relevant respect, the Plaintiff's claims against the municipalities fail and
summary judgment will be granted in their favor.
b. Individual Liability
The law enforcement Defendants, in their individual capacities,
have all moved for judgment on the ground that they are entitled to qualified
immunity. n2
[*964] The United
States Supreme Court has held that: "Government officials performing
discretionary functions are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800,
818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
Recently, the Seventh Circuit described the considerations to be
made when qualified immunity is invoked in defending against a Fourth Amendment
claim:
The threshold inquiry in a
qualified immunity analysis is whether the plaintiff's allegations, if true,
establish a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201,
121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). If a violation can be made out based
on the plaintiff's allegations, a court should then inquire as to whether the
right was clearly established. See Id. As the Court explained in Saucier,
qualified immunity operates "to ensure that before they are subjected to
suit, officers are on notice their conduct is unlawful." Saucier, 533 U.S.
at 206. Thus, for a constitutional right to be clearly established, "its
contours 'must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. This is not to say that
an official action is protected by qualified
immunity unless the very action in question has previously been held
unlawful ... but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.'" See
Hope v. Pelzer, U.S. ,
, 122 S. Ct. 2508, 2515, 153 L. Ed. 2d 666 (2002) (internal quotations
and citations omitted). Accordingly, in this case we must first determine if,
assuming the facts alleged in the complaint are true, Officer Muldrow violated
the plaintiffs' Fourth Amendment rights by threatening him with arrest if he
did not leave the premises, and if Chief Lymore violated the plaintiffs' rights
by failing to intervene in the situation. If so, we must then determine whether
the state of the law at the time of the alleged events at issue gave them a
fair warning that their treatment of
the plaintiffs was unconstitutional. See Id. The plaintiffs bear the burden of
establishing the existence of a clearly established constitutional right. See Rakovich v. Wade, 850 F.2d 1180, 1209
(7th Cir. 1988).
The Fourth Amendment
provides that the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated." U.S. Const. Amend. IV. Its "central requirement"
is one of reasonableness. See Texas
v. Brown, 460 U.S. 730, 739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).
Therefore, to state a constitutional violation, the defendants must allege (1)
Officer Muldrow's conduct constituted a "seizure," and (2) the
seizure, if one occurred, was "unreasonable." Kernats v. O'Sullivan,
35 F.3d 1171, 1177 (7th Cir. 1994); Donovan v. City of Milwaukee, 17 F.3d 944,
948 (7th Cir. 1994).
White v. City of Markham,
310 F.3d 989, 2002 WL 31513399 (7th Cir. November 13, 2002) (No. 01-2034).
Following the Seventh Circuit's analytical scheme, the court
must first determine whether the Plaintiff's allegations, if true, establish a
constitutional violation. In the Complaint, the Plaintiff claims that Officer
Kirmsee was unjustified in shooting and killing Christopher Easley and that the
other officers should have intervened to prevent the killing. Law enforcement
[*965] officers do not violate the
Fourth Amendment if the force used during a seizure is objectively reasonable
"in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation." See Graham v. Connor, 490 U.S. 386, 397, 104 L. Ed. 2d 443,
109 S. Ct. 1865 (1989).
Assuming
for purposes of this motion that Christopher Easley was "seized" at
the time of the alleged violations of his rights, the court must evaluate the
seizure and attendant use of force by examining the totality of the
circumstances. See, e.g., Illinois v. McArthur, 531 U.S. 326, 331-34, 148 L.
Ed. 2d 838, 121 S. Ct. 946 (2001). The undisputed facts in the record show that
the Defendant officers were dispatched to search for Christopher Easley, who
had left his home in a rage, inebriated, spattered with blood from
self-inflicted cuts, and armed with a knife. As the officers closed in on him,
he refused to relinquish the knife and began to charge Officer Kirmsee. Officer
Kirmsee, fearing for his life, shot and killed Christopher. See Defendants'
Joint Statement of Undisputed Facts Under Local Rule 56.2(a). He says that he
did not use spray or his baton or any other lesser force because of the
immediate threat to his life. See Affidavit of Officer David Kirmsee at P27.
The Plaintiff has submitted no evidence to the contrary.
Given these undisputed facts, the force used against Christopher
Easley was reasonable and the officers did not violate the Plaintiff's Fourth
Amendment rights. As a result, the officers are entitled to qualified immunity
from suit in their individual capacities.
B. SUPPLEMENTAL CLAIMS
Having disposed of the Plaintiff's federal claims, the court
will dismiss the Plaintiff's state claims for battery, breach of the duty to
hire, train and supervise, and wrongful death. See 28 U.S.C. § 1367. The
rulings on the federal claims are not necessarily dispositive of the state law
claims in that the elements of the
claims are different; and, considerations of judicial efficiency do not warrant
exercising jurisdiction over these claims See Miller Aviation v. Milwaukee County Board of Supervisors, 273
F.3d 722, 731 (7th Cir. 2001).
ORDER
For the reasons explained above, the court ORDERS that the
"Defendants, Town of Geneva, David Kirmsee, Sean Borkuis and Robert
Linder's Motion for Summary Judgment" (filed August 13, 2002) IS
GRANTED.
IT IS FURTHER ORDERED that the "Motion for Summary
Judgment" (filed August 14, 2002
by Defendants Edward Gritzner, III, James Rozenski and Linn Township) IS GRANTED.
IT IS FURTHER ORDERED that "William W. Walser and the City
of Lake Geneva's Motion Pursuant to F.R.C.P. 56" (filed August 15, 2002)
IS GRANTED.
IT IS FURTHER ORDERED that the "Motion for Summary Judgment
of Defendants Walworth County, Keith Mulhollon, Roger Farnsworth, Robert Craig,
and Jason Hintz" (filed August 15, 2002) IS GRANTED.
IT IS FURTHER ORDERED that this action is dismissed. The federal
claims are dismissed upon their merits and with prejudice and the supplemental
claims are dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall enter a
final judgment as a separate document. See Federal Rule of Civil Procedure 58.
This judgment shall provide that:
This action came on for
hearing before the court, the Honorable Thomas J. Curran, [*966]
District Judge, presiding, and the issues having been heard and a
decision having been rendered
IT IS ORDERED AND ADJUDGED
that the Plaintiff Cynthia
Easley, Individually and as Administrator of the Estate of Christopher B.
Easley, deceased, take nothing and that this action is dismissed and that the
Defendants David Kirmsee, Edward Gritzner III, Robert Linder, Keith Mulhollon,
William W. Walser, Sean Borkhuis, Sgt. Farnsworth, Robert Craig, Jason Hinz,
James Rozenski, Lake Geneva, Geneva Township, Linn Township, and Walworth
County recover of the Plaintiff their costs of this action.
Done and Ordered in Chambers at the United States Courthouse,
Milwaukee, Wisconsin, this 26th day of November, 2002.
Thomas J. Curran
United States District Judge
FOOTNOTES:
n1 It is always prudent to respond to a
motion for summary judgment, even if the opposing party believes that the
movants have failed to sustain their initial burden. See Big O Tire Dealers, Inc. v. Big O
Warehouse, 741 F.2d 160, 163 (7th Cir. 1984).
n2 The Plaintiff has not specified whether
the individual Defendants are being sued in their official or personal
capacities. If they are being sued in their official capacities, the claims are
governed by the same legal principles as the claims against the municipalities
and are dismissed on the same grounds. See Sanville v. McCaughtry, 266 F.3d
724, 732 (7th Cir. 2001). If the Defendants are being sued in their individual
capacities, they are entitled to invoke the defense of qualified immunity. See
Id.