The Estate of Pero v. Cnty. of Ashland

• Decision Date: 10 January 2022
• Docket Number: 20-cv-984-bbc
• Court: U.S. District Court — Western District of Wisconsin
• Parties: THE ESTATE OF JASON IKE PERO, by Personal Representative Holly Gauthier, Plaintiff, v. COUNTY OF ASHLAND, and BROCK MRDJENOVICH, in his individual capacity, Defendants.

THE ESTATE OF JASON IKE PERO, by Personal Representative Holly Gauthier, Plaintiff,
v.
COUNTY OF ASHLAND, and BROCK MRDJENOVICH, in his individual capacity, Defendants.

No. 20-cv-984-bbc

United States District Court, W.D. Wisconsin

January 10, 2022

OPINION AND ORDER

BARBARAB.CRABB, DISTRICT JUDGE

On November 8, 2017, Ashland County Deputy Brock Mrdjenovich was dispatched to a residence on the Bad Indian Reservation after a 911 caller said there was a person outside with a knife and the caller had locked himself inside his residence. About three minutes after announcing that he was on the scene, Mrdjenovich fired two gunshots that killed Jason Ike Pero, a 14-year-old boy who lived at the residence. Now Pero's estate brings this action against Mrdjenovich under 42 U.S.C. § 1983, alleging that the deputy violated Pero's constitutional rights under the Fourth Amendment by using objectively unreasonable force against him. (Plaintiff has also sued Ashland County, but only for indemnification purposes in the event liability is found against Mrdjenovich.) Mrdjenovich contends that his use of force was reasonable because Pero came towards him and ultimately lunged at him with a knife despite the deputy's repeated commands to stop and drop the knife.

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Defendants have moved for summary judgment, dkt. # 37, contending that the material facts are undisputed and plaintiff's claims fail as a matter of law. Defendants have also moved to exclude the opinion of plaintiff's expert, Dr. Larry Blum, a forensic pathologist. Dkt. # 33. (They have also moved to exclude plaintiff's police practices expert, dkt. #53, but it is unnecessary to decide this motion because the limited opinions plaintiff offers from this expert to oppose summary judgment are ultimately irrelevant to the outcome of the motion.) If allowed, Blum's testimony offers a different narrative that suggests that Mrdjenovich's use of deadly force against Pero, particularly the firing of a second shot, was unreasonable. Blum's testimony is important because Mrdjenovich is the only living witness to what happened outside the Pero residence on November 8, 2017, and no video evidence exists that might confirm or contradict Mrdjenovich's account. Accordingly, before considering the motion for summary judgment, I must decide whether Blum's testimony is admissible under the holding in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

Given the critical importance of Blum's testimony to plaintiff's case, I have evaluated his opinions with particular care. Having done so, I find that they are unreliable and therefore inadmissible, for the reasons explained below. What little additional evidence plaintiff has is not enough to permit a jury to find that Mrdjenovich is lying about the circumstances that led to shooting Pero two times on November 8, 2017. Because an objectively reasonable officer faced with the same circumstances would have had probable cause to believe Pero posed an immediate threat to his safety, Mrdjenovich's use of deadly

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force was reasonable under the Fourth Amendment, and defendants are entitled to summary judgment.

The following facts are undisputed unless otherwise noted.

FACTS

At approximately 11:37 a.m. on November 8, 2017, Ashland County dispatchers received a 911 call from a person who identified himself as Jason Pero. The caller reported that an unknown male wearing a purple sweatshirt and white pants was walking around outside the Pero residence carrying a knife. The Pero address was 73374 Maple Street in Odanah, Wisconsin, on the Bad Indian Reservation. Ashland County dispatched this information to deputy sheriff Brock Mrdjenovich, who was assigned to patrol duty on the reservation. Mrdjenovich responded “10-4," activated his lights and sirens, and headed towards the address. Sheriff Michael Brennan, Sergeant Bruce Joanis and Deputy Justin Gilbertson also heard the dispatch, and shortly afterward began to head to the Pero residence from their respective locations. At 11:41:05 to 11:41:21 a.m., Gilbertson announced that he would be responding to the scene of the subject call from the Ashland County jail, which was 12 miles from 73374 Maple Street. Mrdjenovich heard this transmission.

While en route to the Pero residence, Mrdjenovich asked dispatch whether the male with the knife had tried to attack anyone or made any threats. Dispatch replied that it was “unknown, ” adding that the caller had just seen the person outside walking with a knife in his hand, was unsure whether the subject left or his direction of travel, and that the caller

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had locked his door and was staying inside. At about 11:45 a.m., Joanis, who was on the call, asked dispatch if the caller knew who the male was, to which dispatch responded, “negative. He did not.” Joanis also asked dispatch if the male said anything, to which dispatch replied that it was unknown.

At 11:46 a.m., Mrdjenovich radioed “10-60, ” announcing that he had arrived on the scene. As he turned onto Maple Street, he turned off his emergency lights and sirens and slowed his speed to between 5 and 10 miles an hour to begin searching for the person. As he arrived at the Pero residence, he observed an individual of very large build wearing a purple hooded sweatshirt and white or gray pants. (According to the autopsy, Pero was 5'7" and 356 pounds, making him morbidly obese, to the point of “super” morbid obesity. Plaintiff suggests that Pero had diminished physical abilities as a result of his condition, but has adduced no evidence to this effect.) Unbeknownst to Mrdjenovich at the time, this person was 14-year-old Jason Pero, the same person who had called 911. Pero was standing next to a big rock and a tree in the front yard, with his sweatshirt hood up over his head.

Determining that this person matched the description provided by the 911 caller, Mrdjenovich parked his squad car in front of the residence, with the passenger side facing the front yard, just to the north of the driveway. A ditch lay between the road where the deputy parked his squad and the front yard of the Pero residence, where Pero was standing. Mrdjenovich opened his door, stepped out of his squad with his left foot on the ground and his right foot still inside, and called: “You over there in the purple, police, stop!” Mrdjenovich was dressed in his full deputy sheriff's uniform, equipped with a baton, an

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electric control device (TASER), a tactical flashlight, OC spray (pepper spray), a gun, and two 15-round magazines. As he stepped partway out of his squad, he had his gun drawn and pointed toward the ground near his left thigh.

After Mrdjenovich called out, Pero turned his head and looked towards him, at which point Mrdjenovich noticed a knife with a 6-inch blade in Pero's left hand. To Mrdjenovich's surprise, Pero then began walking briskly towards Mrdjenovich, coming at a rate faster than the deputy would have expected for someone of his large size. Mrdjenovich noticed that Pero was not wearing shoes, despite the cold weather, which suggested to the deputy that something was emotionally or cognitively wrong with him.

As Pero advanced, he continued to hold the knife in his left hand, down by his thigh. Mrdjenovich commanded Pero to “Drop the knife, drop it now!” and “Police, stop!” and repeated these commands several times as Pero came towards him. Pero did not respond or otherwise react to any of Mrdjenovich's commands but continued to advance, walking down into the ditch and up to its crest on the other side, nearest the road. This advance - from the rock in the front yard to the crest of the ditch - took approximately five to ten seconds. When he reached the crest of the ditch, Pero paused for about two to three seconds, at a distance of about 10-12 feet from Mrdjenovich, and stared at the deputy with an emotionless, “1, 000 yard stare.” Mrdjenovich could see Pero's face and believed him to be 16-18 years old.

When Pero stopped at the crest of the ditch, Mrdjenovich fully exited his squad, turned his body to face him, and raised his gun from the low-ready position to where it was

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pointing directly at Pero. Because backup officers had not yet arrived, Mrdjenovich ruled out using OC spray, his baton, or a TASER in the event Pero advanced on him with the knife, because he was trained that he needed to be armed with a weapon superior to a knife if there was no backup officer with deadly force available. When Mrdjenovich pointed his weapon at Pero, Pero started walking towards him again, this time at a slower pace than he had moved initially. Pero walked towards the front of Mrdjenovich's squad car, came around it, and began walking towards the driver's side where Mrdjenovich was standing. Mrdjenovich continued to command Pero to “drop the knife, do it now, drop it right now, drop the knife, ” but again, Pero did not respond.

When Pero came around the front driver's side bumper of the squad car, he was about eight feet away from the deputy. Mrdjenovich began walking backwards to keep a safe distance, keeping his eyes and gun trained on Pero and continuing to shout commands at Pero to drop the knife. When Pero reached the rear driver's side trunk area, he changed the position of the knife, so that instead of being down at his thigh, it was up near his hip, in a horizontal position. (According to Mrdjenovich, the blade was pointed at him, but plaintiff says that when Mrdjenovich was asked during his deposition to demonstrate how Pero held the knife, he did so in a way indicating that the blade was parallel to him. Response to PPFOF 142. This dispute is not material.) Pero held the knife with a white-knuckle grip and was facing the deputy, with about eight feet between them. Mrdjenovich commanded Pero to “stop right now or I'll shoot you.”

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Other than statements from neighbors who say they did not hear any shouting before they heard gunshots, plaintiff does not have...