Ferguson v. McDonough

• Decision Date: 08 September 2021
• Docket Number: No. 20-2741,20-2741
• Parties: Joseph S. FERGUSON, Plaintiff-Appellee, v. Ryan MCDONOUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

13 F.4th 574

Joseph S. FERGUSON, Plaintiff-Appellee,

v.Ryan MCDONOUGH, Defendant-Appellant.

No. 20-2741

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2021

Decided September 8, 2021

David J. Lang, Attorney, JUDGE, LANG & KATERS, LLC, Wauwatosa, WI, Ashok Chandran, Sherrilyn Ann Ifill, Kevin Eli Jason, Janai S. Nelson, Attorneys, NAACP LEGAL DEFENSE & EDUCATION FUND, New York, NY, Christopher Eberhart Kemmitt, Mahogane Denea Reed, Attorneys, NAACP LEGAL DEFENSE & EDUCATION FUND, Washington, DC, for Plaintiff - Appellee.

Kyle W. Engelke, Pahoua Thao, Ted Waskowski, Attorneys, STAFFORD ROSENBAUM LLP, Madison, WI, for Defendant - Appellant.

Before Manion, St. Eve, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Our jurisdiction over this interlocutory appeal turns on a police dashcam video that captured police officer Ryan McDonough's arrest of Joseph Ferguson, including the moment he tased Ferguson. Ferguson sued Officer McDonough under 42 U.S.C. § 1983, alleging that Officer McDonough violated his Fourth Amendment rights by using excessive force to effectuate his arrest. Following discovery, the parties cross-moved for summary judgment, both asserting that the dashcam video supported granting summary judgment in their favor. The district court disagreed that the video resolved the parties’ factual disputes and denied both motions.

This appeal concerns only the denial of Officer McDonough's motion, which asserted that he was entitled to summary judgment because qualified immunity shielded him from civil liability for any damages Ferguson sustained from the arrest. The district court concluded that when the facts were viewed in a light most favorable to Ferguson, one reasonable interpretation of the dashcam video was that Ferguson was not actively resisting arrest when Officer McDonough tased him. It further concluded that a reasonable officer would have known by the time of Ferguson's tasing that an officer's escalation of force in response to an individual not actively resisting violated the Fourth Amendment's proscription against excessive force. Because one view of the evidence supported that Ferguson was not actively resisting when Officer McDonough tased him, a jury could reasonably find that Officer McDonough's use of the taser was unreasonably excessive under the circumstances. Accordingly, the district court held that Officer McDonough was not entitled to summary judgment on his qualified immunity defense.

On appeal Officer McDonough argues that the dashcam video contradicts the district court's finding that the video is open to interpretation because the video clearly shows that Ferguson was actively resisting arrest moments before Officer McDonough tased him, and that Ferguson continued to argue with Officer McDonough while raising his hands. Under these circumstances, Officer McDonough contends that his deployment of the taser was objectively reasonable, and hence, he is entitled to qualified immunity.

We have jurisdiction to review the merits of Officer McDonough's appeal only if the dashcam video utterly discredits the district court's finding that there was a factual dispute over whether Ferguson was actively resisting when Officer McDonough tased him. It does not, so we must dismiss his appeal for lack of appellate jurisdiction.

I

Our recount of the facts largely tracks the district court's account at summary judgment. Ryan McDonough is a police officer with the Kenosha Police Department. On July 9, 2018, he and fellow officer Kyle Kinzer were dispatched to an apartment building located at 6100 24th Avenue in Kenosha, Wisconsin, in response to a 911 report of disorderly conduct. The 911 call was placed by the building's manager who reported that there was a woman inside the building in Joseph Ferguson's apartment who was "causing problems" and did not live there.

Ferguson was not present when the two officers arrived at the building. Upon arrival, Officer Kinzer spoke with the building manager who stated that he did not witness any fighting between Ferguson and the woman, Cloey Rupp-Kent. Meanwhile Officer McDonough spoke with Rupp-Kent who was, at that time, alone inside Ferguson's apartment. Rupp-Kent told Officer McDonough that she and Ferguson had been fighting earlier in the day. Ferguson had left the apartment for a few hours but then reportedly came back belligerent. Upon returning, Ferguson allegedly kicked an air conditioning unit out of a window, knocked a phone out of Rupp-Kent's hands, punched her in the face, laid on top of her on the bed, pointed a knife at her chest, and threatened to stab her. While in the apartment, Officer McDonough observed bruises on Rupp-Kent's leg and neck, and redness on her face. He also observed the knife Ferguson purportedly pointed at her and collected it into evidence.

After speaking with Rupp-Kent, Officer McDonough went outside to his squad car to complete paperwork on the incident. There, he learned that Ferguson was on probation for robbery, had his driving privileges revoked, and drove a Chrysler. He also reviewed Ferguson's booking photo.

While Officer McDonough was completing the paperwork, he saw Ferguson drive past him in a Chrysler. Officer McDonough followed Ferguson's car without his squad car lights activated. Ferguson then turned two corners, pulled over, and parked his car in front of what Ferguson later indicated was his mother's house (which Officer McDonough did not know at the time). As Ferguson exited his car, Officer McDonough activated his squad car lights and repeatedly yelled at him to stay in the car.

The parties have different accounts of what happened next. For his part, Ferguson contends that he got out of his car to ask Officer McDonough why he was being pulled over, to which Officer McDonough merely responded, "you're under arrest." Ferguson asserts that Officer McDonough then aggressively approached him, shoved him, and gave him two contradictory commands: to place his hands on top of his car and also behind his back. Ferguson states that since he could not simultaneously do both, he placed "one hand on top of the car and one behind [his] back." Although it is undisputed that a tussle ensued next as Officer McDonough went to handcuff Ferguson, Ferguson says the tussle occurred because Officer McDonough was "pushing him around" and was so rough with him that he pulled off all his clothes. The parties do not dispute that the tussle between them ended with Officer McDonough deploying a taser at Ferguson. Ferguson however claims that the taser was unnecessary because he was not resisting arrest and had surrendered with both hands in the air when Officer McDonough tased him.

Officer McDonough disagrees and claims Ferguson was actively resisting arrest. He contends that when he approached Ferguson after Ferguson got out of his car, he attempted to turn Ferguson toward the car so that he could handcuff him behind his back, but Ferguson pulled one arm free. Officer McDonough says he then twice told Ferguson to stop resisting arrest but Ferguson nevertheless continued to resist. According to Officer McDonough, the tussle followed because he attempted to "decentralize" Ferguson by taking him to the ground which resulted in his clothes coming off, but Ferguson again resisted and was able to stand up despite the take-down attempt. Officer McDonough states that he subsequently deployed his taser for five seconds to get Ferguson under control, and that after Ferguson fell to the ground, backup arrived to help him handcuff Ferguson. Officer McDonough asserts that he justifiably tased Ferguson because he was concerned about his safety since he knew that Ferguson had recently threatened Rupp-Kent with a knife, and he did not have backup officers to assist him while Ferguson was actively resisting arrest.

After the taser incident, Ferguson was charged with several crimes. Most of the charges were subsequently dismissed. On October 10, 2018, Ferguson pled guilty to three charges not relevant to this appeal. On January 8, 2019, Ferguson, proceeding pro se, sued Officer McDonough under § 1983 alleging that Officer McDonough subjected him to excessive force by tasing him in violation of his Fourth Amendment rights. As relevant here, Officer McDonough moved for summary judgment, asserting the defense of qualified immunity. The district court denied the motion.

In so doing, the district court concluded that, when construing the facts in the light most favorable to Ferguson, Ferguson's § 1983 claim presented genuine issues of material fact for a jury to decide. The district court explained that Officer McDonough and Ferguson had offered competing accounts of the circumstances surrounding Ferguson's arrest, and the dashcam video of the incident did not conclusively support either party's account. For example, the district court determined that one reasonable interpretation of the video, which was consistent with Ferguson's version of events, "is that at the point that [Officer] McDonough tased Ferguson, [Ferguson] was standing next to his car with his hands in the air," and "[a] reasonable jury could, thus, conclude that the use of the taser was unnecessary and unreasonable."

The district court noted, however, that "[a]nother reasonable interpretation of the video, consistent with [Officer] McDonough's version of events, is that although Ferguson was not physically resisting at the time that McDonough tased him, Ferguson was struggling moments before McDonough deployed his taser." Accordingly, a reasonable jury could also conclude that Officer McDonough's use of the taser was reasonable. Thus, the district court found that a jury would need to draw inferences from the video and consider the totality of circumstances to ultimately decide whether it was reasonable for an officer in Officer McDonough's position to deploy a taser at Ferguson in this instance.

Because the video did not resolve the parties’ dispute and "one reasonable...