Weinmann v. McClone

• Decision Date: 27 May 2015
• Docket Number: No. 14–1794.,14–1794.
• Citation: 787 F.3d 444
• Parties: Jerome L. WEINMANN and Susan Weinmann, Plaintiffs–Appellees, v. Patrick McCLONE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

787 F.3d 444

Jerome L. WEINMANN and Susan Weinmann, Plaintiffs–Appellees

v.Patrick McCLONE, Defendant–Appellant.

No. 14–1794.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 27, 2014.

Decided May 27, 2015.

John C. Peterson, Attorney, Amy M. Risseeuw, Attorney, Peterson, Berk & Cross, S.C., Appleton, WI, for Plaintiffs–Appellees.

Michele M. Ford, Attorney, Crivello Carlson, S.C., Milwaukee, WI, for Defendant–Appellant.

Before WOOD, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

Opinion

WOOD, Chief Judge.

After an argument with his wife on their wedding anniversary, Jerome Weinmann went to his garage, drank half a bottle of vodka, and put the barrel of a shotgun in his mouth. But he was unable to pull the trigger. Susan Weinmann, in the meantime, had called 911 for help. She got more than she bargained for: the officer who responded to her call, Deputy Patrick J. McClone, shot Jerome four times. Jerome survived and sued McClone under 42 U.S.C. § 1983 for using unconstitutionally excessive force. McClone invoked qualified immunity, but the district court refused to grant summary judgment in his favor on that basis. He has taken an interlocutory appeal from that order, as he is permitted to do, see Mitchell v. Forsyth, 472 U.S. 511, 525–26, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We conclude, however, that the district court correctly ruled that McClone is not entitled to qualified immunity based on the current record. We therefore affirm.

I

An appeal from a ruling on qualified immunity is not the time for the resolution of disputed facts. Instead, as is generally true when summary judgment is involved, we accept the plaintiff's version of the facts, without vouching for their ultimate accuracy. Jewett v. Anders, 521 F.3d 818, 819 (7th Cir.2008). We already have sketched out the basic story, but it is helpful to add a few more details.

When Susan called 911 on November 12, 2007, she told the dispatcher that her husband Jerome was in the garage, he was threatening to kill himself, and he had access to a long gun. (We refer to the plaintiffs by their first names to avoid confusion.) Susan added that she did not know if he had any ammunition. The dispatcher relayed all of this information to the responding officer, Deputy McClone of the Waupaca County Sheriff's Department.

Within three minutes of arriving at the Weinmann home, McClone decided that a forced entry into the garage was necessary. He peered into the garage from two windows on the west side of the building, but Jerome was not in sight. McClone deduced that Jerome was in the southwest corner of the structure, because it was the only area that was not visible from the two windows McClone had chosen to use. (There were other windows.) McClone then knocked on the door to the garage, but there was no response. He did not try to speak to Jerome through the door. Instead, he decided to make an unannounced entry into the garage. Hearing something that sounded like pattering on cupboard doors and fearing that Jerome was attempting to commit suicide, McClone kicked in the door.

The parties dispute what happened next. According to Jerome, right before McClone entered, Jerome had lifted the .12 gauge shotgun, banged it against his forehead, and “return[ed] the shotgun to its resting place.” At that point Jerome was sitting in a lawn chair with the shotgun across his lap resting on the “armrests or held just above them.” Jerome said that he “never pointed the gun at Deputy McClone, and he never did anything whatsoever to make Deputy McClone reasonably believe that the deputy or anyone else was in threat of harm.” McClone too recalled that Jerome never pointed the gun at him, but McClone urges that “it is undisputed that Deputy McClone perceived the weapon as being pointed in his direction.” It is undisputed that McClone then discharged his weapon, shooting Jerome four times, in the face, thumb, and torso. Jerome's injuries required extensive medical treatment including partial amputation of his thumb and a total replacement of his jaw's left temporomandibular joint.

In the wake of these events, Jerome and Susan filed this section 1983 case against McClone and Waupaca County, seeking compensatory and punitive damages for violation of Jerome's constitutional rights. The district court granted the County's motion to dismiss the Weinmanns' claim against Waupaca County, see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), but it denied McClone's motion to dismiss the excessive force claim, concluding that a material dispute of fact precluded a finding of qualified immunity.

II

Normally a denial of summary judgment is not a final decision appealable under 28 U.S.C. § 1291, but there is a “well-established exception to this general rule under the collateral order doctrine where a party challenges a district court's determination that a government official is not entitled to qualified immunity.” Gibbs v. Lomas, 755 F.3d 529, 535 (7th Cir.2014) (citation omitted). When the denial of summary judgment is grounded in a legal determination of the defendant's claim of qualified immunity, appellate jurisdiction over the ruling is appropriate because such a plea can “spare an official not only from liability but from trial.” Ortiz v. Jordan, 562 U.S. 180, 188, 131 S.Ct. 884, 178 L.Ed.2d 703 (2011) (citing Mitchell, 472 U.S. at 525–26, 105 S.Ct. 2806 ). “Instant appeal is not available ... when the district court determines that factual issues genuinely in dispute preclude summary adjudication.” Id. (citing Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) ). Thus, we have jurisdiction pursuant to 28 U.S.C. § 1291 over this appeal only insofar as we may review the district court's determination that genuine issues of fact preclude the resolution of McClone's qualified immunity defense; if we were to find no such factual issues, we would also be entitled to review the denial itself.

III

When public officers violate the constitutional rights of citizens, section 1983 provides the vehicle for a legal claim. One possible affirmative defense, however, is qualified immunity. This is a doctrine that 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). We recently explained that qualified immunity strikes a balance between “protect[ing] a government official's ability to function without the threat of distraction and liability” and “afford[ing] members of the public the ability to vindicate constitutional violations by government officials who abuse their offices.”

Gibbs, 755 F.3d at 537 (quotation marks and citations omitted).

In evaluating McClone's qualified immunity defense, we must answer two questions: first, whether the facts, taken in the light most favorable to Jerome, depict a violation of a constitutional right, and second, whether that constitutional right was clearly established at the time of the alleged violation. Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir.2013) (citation omitted). McClone urges that the answer to both questions is “No.” He argues that he did not violate Jerome's Fourth Amendment freedom from unreasonable seizures. Second, even if he did violate Jerome's right, McClone contends that, focusing on the correct level of generality, the right was not clearly established. “If either inquiry is answered in the negative, the defendant official is entitled to summary judgment.” Gibbs, 755 F.3d at 537.

A

Police officers are entitled in appropriate circumstances to use force, up to and including deadly force. But it is also the case that the Constitution forbids the use of excessive force. The question whether a particular use of force has crossed the constitutional line is governed by the Fourth Amendment, which prohibits unreasonable seizures. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The court must engage in “a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quotation marks and citation omitted). In doing so, it should consider “the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (citation omitted). In other words, a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force.

As applied to the present case, this means that Jerome has a constitutional right not to be shot on sight if he did not put anyone else in imminent danger or attempt to resist arrest for a serious crime. McClone acknowledges this rule, but he responds that he did not violate Jerome's right to be free from unjustified deadly force because McClone had an objectively reasonable belief that he (McClone) was in imminent danger. Given the facts of this case, that is the only theory McClone could advance. Jerome was alone in an enclosed garage. His wife had locked herself in the house, and his son was miles away. It is true that Jerome had a prior felony conviction and thus he was violating 18 U.S.C. § 922(g) by possessing a firearm. Nonetheless, taking the facts as Jerome recounts them, Jerome did nothing to suggest that he would resist arrest. See Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir.2002) ( “Deadly force may be used if the officer has probable cause to believe that the armed suspect (1)...