Clark v. Ziedonis

• Decision Date: 29 October 1973
• Docket Number: No. 71-C-578.,71-C-578.
• Citation: 368 F. Supp. 544
• Parties: Edmund Gordon CLARK et al., and Edward Travis et al., Plaintiffs, v. Joseph ZIEDONIS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

368 F. Supp. 544

Edmund Gordon CLARK et al., and Edward Travis et al., Plaintiffs, v. Joseph ZIEDONIS, Defendant.

No. 71-C-578.

United States District Court, E. D. Wisconsin.

October 29, 1973.

Gary A. Gerlach, Milwaukee, Wis., for plaintiffs.

James B. Brennan, City Atty. of Milwaukee by Rudolph T. Randa, Milwaukee, Wis., for defendant.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

The defendant, Joseph Ziedonis, is a police officer who shot two fleeing youths suspected of committing a felony. His victims claim that excessive force was used in connection with the arrest and seek damages under the Civil Rights Act, 42 U.S.C. § 1983. The liability issue turns upon the question of justification for his use of deadly force.

At the close of the bench trial in this matter, I made the following preliminary determinations: a) the defendant had reason to believe that a felony was in progress; b) the plaintiffs' accounts of the incident lack credibility; and c) the defendant's version of the pertinent events represents the factual backdrop against which the liability issue must be considered.

In McCluskey v. Steinhorst, 45 Wis.2d 350, 354, 173 N.W.2d 148 (1970), the Wisconsin supreme court observed that the test for liability is whether the amount of force used by the arresting officer was reasonable under the existing circumstances. Applying this test to the facts of this particular case, I conclude that the defendant's use of deadly force was unreasonable and unjustified.

At approximately 10:00 P.M. on January 11, 1971, Mr. Ziedonis and his partner responded to a radio dispatch indicating an "entry in progress, three negro males on the scene. . . ." Armed with a Remington 12-gauge shotgun, Mr. Ziedonis positioned himself at the scene on a lighted public sidewalk, while his partner circled around to the rear of the homes located on that block. The defendant was within five to ten yards from them when he observed three black males emerge from the gangway located between two houses. Each one was of junior high school age and approximately five feet six inches tall. The plaintiff, Edward Travis, wielding a thin, 12-inch steel-blue file, faced Mr. Ziedonis for an instant after he ordered them to halt. All three then retreated into the gangway located at the next house down, as the defendant fired his shotgun over their heads. Mr. Ziedonis then ran up the sidewalk, parallel to their path of retreat, and positioned himself directly in front of that gangway. He observed Edward Travis facing him again, and fired a second shot, which felled both Edward Travis and the second of the plaintiffs, Edmund Clark.

The defendant contends that when Edward Travis first faced him, wielding the file, he viewed the move as a confrontation by someone holding a longbarreled revolver, and that he feared for his life. However, notwithstanding the facts that the area was lighted, the distance between them was short, and the file does not resemble a gun, one point is noteworthy: Mr. Ziedonis deliberately fired over the head of his would-be assailant at that time.

Following that warning shot, the three suspects retreated to the gangway located at the next house. Mr. Ziedonis had reason to know that his partner, who was covering the rear yard, had heard his warning shot and that the suspects were not likely to escape. Moreover, Mr....