Siler v. City of Kenosha

• Decision Date: 29 April 2020
• Docket Number: No. 19-1855,19-1855
• Citation: 957 F.3d 751
• Parties: Gabriella SILER, et al., Plaintiffs-Appellants, v. CITY OF KENOSHA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

957 F.3d 751

Gabriella SILER, et al., Plaintiffs-Appellants,

v.CITY OF KENOSHA, et al., Defendants-Appellees.

No. 19-1855

United States Court of Appeals, Seventh Circuit.

Argued November 8, 2019

Decided April 29, 2020

Jonathan Safran, Attorney, Samster, Konkel & Safran, S.C., Milwaukee, WI, Roberta Puntillo, Attorney, Godin, Geraghty Puntillo Camilli, SC, Kenosha, WI, for Plaintiffs-Appellants.

Kyle W. Engelke, Meg E. Vergeront, Ted Waskowski, Attorneys, Stafford Rosenbaum LLP, Madison, WI, for Defendants-Appellees.

Before Ripple, Rovner, and Sykes, Circuit Judges.

Ripple, Circuit Judge.

Aaron Siler’s estate and his daughter, Gabriella (collectively, "Ms. Siler"), brought this action in the district court against Officer Paul "Pablo" Torres ("Officer Torres"). Predicating their claims on 42 U.S.C. § 1983, they alleged that Officer Torres employed unconstitutionally excessive force when he shot and killed Mr. Siler. This confrontation took place after Officer Torres, following the orders of his dispatch, had attempted to apprehend Mr. Siler. Ignoring the Officer’s orders, Mr. Siler ran and eventually sought cover in a garage where Officer Torres, who had given chase, confronted him.

Ms. Siler also sought relief from the City of Kenosha pursuant to Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court granted the defendants’ motion to bifurcate the trial on the unreasonable force claim against Officer Torres from trial on the Monell claims against the City of Kenosha.

Addressing first the claim against Officer Torres, the district court granted Officer Torres’s motion for summary judgment on the ground of qualified immunity. It held that a genuine issue of triable fact prevented it from determining whether Officer Torres violated the Constitution.

The court determined, however, that, at the time the Officer acted, there was no clear legal precedent that forbade his acting as he did. Invoking Rule 54(b) of the Federal Rules of Civil Procedure, the court then directed entry of a final judgment on its summary judgment decision in favor of Officer Torres. There has been no final judgment with respect to Ms. Siler’s claims against the City of Kenosha.¹ The plaintiffs timely filed their notice of appeal.

The district court properly granted summary judgment to Officer Torres. On the first prong of the qualified immunity inquiry, however, we respectfully part company with the district court and hold, as a matter of law, that Officer Torres’s action conformed to constitutional standards. On this basis, we affirm the grant of summary judgment.

I.BACKGROUND

On March 14, 2015, at approximately 9:35 a.m., Officer Torres of the Kenosha Police Department was on vehicle patrol when he received a call from dispatch requesting assistance apprehending Mr. Siler. The dispatcher told Officer Torres that there was a warrant for Mr. Siler for strangulation and suffocation. From the information provided, Officer Torres also understood that Mr. Siler had taken a vehicle without consent and was known to have violent tendencies. As it turned out, Mr. Siler did not have a warrant for strangulation and suffocation; instead, he was wanted for violating probation and parole. Officer Torres was not aware of the error at the time.

When Officer Torres spotted Mr. Siler driving through an intersection, he activated his emergency lights and siren. Mr. Siler did not stop. Instead, with Officer Torres in pursuit, he made several quick turns onto residential side streets, ignoring traffic signs and speed limits. The chase, which lasted roughly three minutes, ended when Mr. Siler crashed his car into a tree, sideswiped another vehicle, and fled on foot.

Officer Torres left his car and pursued Mr. Siler. At the time, Officer Torres was forty-two years old, stood five feet and seven inches tall, and weighed 155 pounds; Mr. Siler was twenty-six years old, six feet and four inches tall, and 243 pounds. The Officer yelled commands at Mr. Siler, including "stop," "police," and "get on the ground."² Mr. Siler did not obey.

At one point during the foot chase, Mr. Siler outran Officer Torres, and Officer Torres momentarily lost sight of him. Catching sight of him again, Officer Torres renewed the pursuit and followed him into a garage of an auto body repair shop. Juan Carlos Salinas was standing near the entrance to the garage. His brother, Antonio Salinas Jaimes, was inside. As Officer Torres approached the entrance, Salinas gestured as if to indicate that Mr. Siler was inside. When Officer Torres entered the garage, he saw Jaimes holding a baseball bat.

The following diagram shows an approximate overhead view of the garage.

[Editor’s Note: The preceding image contains the reference for footnote³ ].

An SUV is shown parked at an angle inside the garage, facing away from the open garage door. The notation on the driver side indicates Officer Torres’s approximate location; the "X" on the passenger side indicates Mr. Siler’s approximate location.

When Officer Torres entered the garage, Mr. Siler was hiding in a back room.

Officer Torres yelled, "[W]here is he at?"⁴ Jaimes responded that Mr. Siler was in the back room. Officer Torres called several times for Mr. Siler to come out from the back room. Mr. Siler exited the back room and attempted to flee the garage through the open garage door, but Officer Torres, who was standing in the open doorway, blocked the exit. Mr. Siler moved to the passenger side of the SUV.

The sequence of events that occurred next lasted less than thirty seconds. Officer Torres moved to the driver side of the SUV and yelled at Mr. Siler to get on the ground. Officer Torres and Mr. Siler were positioned on opposite sides of the SUV. Mr. Siler was on the passenger side, between the vehicle and the wall of the garage. Officer Torres was on the driver side. Salinas and Jaimes were somewhere behind the Officer.

Officer Torres and Mr. Siler then began to move in "cat and mouse"⁵ fashion along their respective sides of the SUV: if Officer Torres moved to the front-driver side of the SUV, Mr. Siler moved to the back-passenger side; if Officer Torres moved to the back-driver side, Mr. Siler moved to the front-passenger side. The garage door toward the back of the SUV remained open throughout the "cat and mouse" exchange. Mr. Siler had an unobstructed path to his left that led to the open garage door.

By this time, Officer Torres had his service revolver out and he pointed it at Mr. Siler. Officer Torres ordered Mr. Siler to the ground. Mr. Siler refused, responding, "fuck you," "no," and "shoot me."⁶ Officer Torres observed that Mr. Siler began looking down at the ground and then up at Officer Torres. Officer Torres could not see Mr. Siler’s hands. Mr. Siler bent over and, when he stood up, Officer Torres saw a black cylindrical object pressed against Mr. Siler’s forearm. Officer Torres yelled at Mr. Siler to "drop it" and "get to the ground," to which Mr. Siler again responded, "fuck you," "no," and "shoot me."⁷ Officer Torres still could not see Mr. Siler’s hands.

The parties dispute the precise details of Mr. Siler’s next action. Ms. Siler contends that Mr. Siler left the side of the vehicle and went into the back room to pick up a plastic bucket. Officer Torres contends that he did not see Mr. Siler leave the side of the vehicle and did not see a plastic bucket prior to the shooting. Officer Torres states, and Ms. Siler does not dispute, that he saw Mr. Siler bend down a second time at the side of the vehicle and make another grabbing motion. Viewing the facts in the light most favorable to Ms. Siler, we draw the inference that Mr. Siler went to the back room and picked up a bucket. What is undisputed is that just before the shooting, Officer Torres still could not see Mr. Siler’s hands.

While on the passenger side of the SUV, Mr. Siler made a step to the right, toward the front of the vehicle and in the opposite direction of the open garage door. There were approximately ten to twelve feet between the two men. When Mr. Siler stepped to the right, Officer Torres began shooting at Mr. Siler, firing seven times successively without pausing between shots. Six bullets struck Mr. Siler’s upper torso. Mr. Siler died from gunshot wounds.

II.DISCUSSION

The basic principles that govern our analysis are well established. "A police officer’s use of deadly force constitutes a seizure within the meaning of the Fourth Amendment, and therefore it must be reasonable." Scott v. Edinburg , 346 F.3d 752, 755 (7th Cir. 2003). Ms. Siler claims that Officer Torres’s use of deadly force was unreasonable, and thus, unconstitutional. She correctly invokes 42 U.S.C. § 1983 as the predicate for her cause of action. This section provides a cause of action against public officers who violate the rights of individuals. See Weinmann v. McClone , 787 F.3d 444, 447 (7th Cir. 2015).

Officer Torres has raised a defense of qualified immunity, which "protects government officials ‘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.’ " Id. (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Thus, to prevail, Ms. Siler must carry the burden of proof to show: (1) that Officer Torres’s use of deadly force was objectively unreasonable and therefore a constitutional violation, and (2) that Officer Torres violated a clearly established right such that he was "on notice that his conduct would be clearly unlawful." Saucier v. Katz , 533 U.S. 194, 201–02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If Ms. Siler cannot establish that Officer Torres violated a clearly established right, he is entitled to qualified immunity even if he employed unreasonable force. See Mullenix v. Luna , ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (explaining that qualified immunity protects...