153 F.3d 793 (7th Cir. 1998), 98-1031, Schaefer v. Goch

Docket Nº:98-1031.
Citation:153 F.3d 793
Party Name:Gerald G. SCHAEFER and Lyla Schaefer, Plaintiffs-Appellants, v. Fred J. GOCH and Marathon County, Defendants-Appellees.
Case Date:August 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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153 F.3d 793 (7th Cir. 1998)

Gerald G. SCHAEFER and Lyla Schaefer, Plaintiffs-Appellants,


Fred J. GOCH and Marathon County, Defendants-Appellees.

No. 98-1031.

United States Court of Appeals, Seventh Circuit

August 28, 1998

Argued May 29, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 2, 1998.

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Ronald J. Kotnik, Frank C. Sutherland (argued), Lathrop & Clark, Madison, WI, for Plaintiffs-Appellants.

Raymond J. Pollen (argued), Michele M. Ford, Crivello, Carlson, Mentkowski & Steeves Milwaukee, WI, for Defendants-Appellees.

Before CUMMINGS, RIPPLE and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

This case arises out of genuinely tragic events. During the early morning hours of September 25, 1995, Sergeant Fred Goch of the Marathon County, Wisconsin Sheriff's Department unintentionally shot and killed Kathy Nieslowski during a standoff between police and Nieslowski's husband, John. Kathy Nieslowski's parents 1 brought this suit pursuant to 42 U.S.C. § 1983, alleging that Goch and Marathon County violated their daughter's rights under the Fourth and Fourteenth Amendments to the United States Constitution. The district court granted summary judgment in favor of the defendants, and this Court affirms.


At about 9:15 p.m. on September 24, 1995, the Marathon County Sheriff's Department received a call stating that a man named John Nieslowski had threatened patrons of a local bar with a shotgun. Nieslowski was reportedly dressed in military fatigues and speaking in an erratic, irrational manner, including making threats to shoot any Everest Metro Police Department officers he might see. Members of the Sheriff's Department's Special Response Team ("SRT") responded to the call, as did officers of the Everest Metro Police Department (which serves three municipalities in Marathon County) and officers from the Town of Rothschild.

The responding officers soon learned that Nieslowski's parents lived at an address not far from the bar. The officers moved to establish a protective perimeter around the Nieslowski home. In the meantime, SRT officers learned from Everest Metro officers who had dealt with Nieslowski on previous occasions that he tended to be violent and unpredictable. A member of the SRT who observed the Nieslowski home from another house across the street saw movement within the home but was not able to determine the number of people who were there. Twice between 10:30 and 11:00 p.m., this SRT member saw a man he believed to be John Nieslowski step out of the home, look around, and then step back inside.

Officers sought a "no-knock" warrant to enter the Nieslowski home; the warrant was granted at approximately 1:00 a.m. on September 25. The SRT's commander met with Everest Metro officers and learned that John Nieslowski was known to them to be a "fighter" and that police had been required to resort to physical measures to subdue him in the past. The officers also told the SRT commander that Nieslowski was a military man who had previously been a suspect in a murder investigation, and that he was physically very strong.

Based on this information and on Nieslowski's conduct in threatening patrons at the bar earlier that evening, the commanders on the scene decided to attempt a "silent entry" through the rear door of the house in order to negotiate with Nieslowski from a position inside. The plan did not succeed, however. When a team of officers commanded by Sergeant Goch entered after battering open the back door, Nieslowski fired at them with a shotgun, striking the ballistics shield that the lead officer carried to protect the group. The SRT officers then retreated outside the house.

After the aborted entry, the SRT officers involved joined their companions in positions around the house. As some of the officers were still seeking suitable vantage points, Kathy Nieslowski walked out the front door of the house onto the porch. Several SRT deputies shouted to her to "get down on the ground" and identified themselves by yelling "Sheriff's Department." Kathy went back inside the house for a moment and then quickly came back outside, at which time the officers again ordered her to "get on the ground." Kathy responded to the deputies' commands and got down on her hands and knees at the top of the porch steps.

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Immediately after Kathy dropped to all fours, John Nieslowski stepped out the front door carrying a long gun in one hand, cradled beneath his arm. John took hold of Kathy by either the hair or the shoulder with his free hand and began pulling her back toward the door, as she struggled against him. John apparently succeeded in pulling Kathy to her feet, so that he stood either behind or slightly to one side of her (from the vantage point of Sergeant Goch and two deputies who were located near Goch to the south of the porch), with his arm around her neck or shoulder. The officers' stories are not fully consistent as to whether John's gun was pointing to the west the entire time or swung at some point to the south, toward Sergeant Goch. 2 Their statements also differ somewhat as to whether John was standing behind Kathy or whether they moved at some point so that they stood side-by-side, separated by at least a few inches.

What is clear, however, is that the officers shouted at John, "Sheriff's Department, let me see your hands" and "Put down your gun," and that John released his hold on Kathy. Immediately after, Sergeant Goch fired two shots at John from his MP5 submachine gun, and Deputies McCarthy and Bean also fired at John with their handguns at roughly the same moment. One bullet from either McCarthy's or Bean's gun struck John, and he died soon after. One of Goch's two bullets struck Kathy in the back of the head; she died some hours later from the wound.

Kathy's parents filed this suit on June 6, 1997, then amended their complaint on September 9, 1997. Their amended complaint included claims under 42 U.S.C. § 1983 against the City of Schofield, 3 Marathon County, and Sergeant Goch in his individual capacity. The complaint alleged that the defendants violated Kathy Nieslowski's rights under the Fourth and Fourteenth Amendments to the United States Constitution, and also that they violated Kathy's parents' Fourteenth Amendment right to Kathy's continued society and companionship. The claim against Marathon County alleged that the County failed to train its SRT officers properly in handling situations such as the one that led to Kathy's death.

On December 2, 1997, Judge John C. Shabaz granted summary judgment in favor of Sergeant Goch and Marathon County on all of the Schaefers' claims. The court entered its judgment the next day, and the plaintiffs filed a timely notice of appeal.


  1. Standard of Review

    This Court reviews the district court's grant of summary judgment de novo. Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir.1993). We apply the same standard as the district court, granting summary judgment only if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265. The requirement that a disputed fact be material means that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. In evaluating a summary judgment motion, we construe the evidence in the light most favorable to the nonmoving party

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    and draw all justifiable inferences in favor of that party. Id. at 255, 106 S.Ct. 2505.

  2. Fourth Amendment

    An initial task for a court faced with a suit under 42 U.S.C. § 1983 claiming that government agents have used excessive force is to "identify[ ] the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Plaintiffs contend that the SRT officers had effectively seized Kathy Nieslowski before she was shot, and thus that their claim against Sergeant Goch and the County should be analyzed using Fourth Amendment standards. The Supreme Court's recent decision in County of Sacramento v. Lewis, --- U.S. ----, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), however, illustrates the error in this position.

    It is true that the Supreme Court has held that "all claims that law enforcement officers have used excessive force ... 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, rather than under a 'substantive due process' approach." Graham, 490 U.S. at 395, 109 S.Ct. 1865. In Lewis, however, the Court reiterated the point that this preference for the more specific provisions of the Fourth Amendment over the "generalized notion of substantive due process," Lewis, 118 S.Ct. at 1708, does not apply unless the actions of the government agents in fact amount to a seizure. Id. at ----, 118 S.Ct. at 1715.

    In Lewis, the Court held that no seizure took place when a police officer pursued a suspect and his passenger at high speeds and then struck and killed the passenger after the suspect's motorcycle tipped over. Id. at ----, 118 S.Ct. at...

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