Jerome Weinmann v. Patrick McClone

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1794

JEROME L. WEINMANN and SUSAN WEINMANN,

Plaintiffs-Appellees,

v.

PATRICK MCCLONE,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 13-C-0088 — William C. Griesbach, Chief Judge.

____________________

ARGUED OCTOBER 27, 2014 — DECIDED MAY 27, 2015

____________________

Before WOOD, Chief Judge, and EASTERBROOK and

WILLIAMS, Circuit Judges.

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 re-

sponded to her call, Deputy Patrick J. McClone, shot Jerome

2 No. 14-1794

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 ba-

sis. 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 (1985). We conclude, however, that the district court

correctly ruled that McClone is not entitled to qualified im-

munity 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 gener-

ally 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 in-

formation 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

No. 14-1794 3

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 some-

thing 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 “re-

turn[ed] the shotgun to its resting place.” At that point Je-

rome was sitting in a lawn chair with the shotgun across his

lap resting on the “armrests or held just above them.” Je-

rome 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 any-

one 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 am-

putation 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

4 No. 14-1794

County’s motion to dismiss the Weinmanns’ claim against

Waupaca County, see Monell v. Dep’t of Soc. Servs., 436 U.S.

658 (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 enti-

tled to qualified immunity.” Gibbs v. Lomas, 755 F.3d 529, 535

(7th Cir. 2014) (citation omitted). When the denial of sum-

mary judgment is grounded in a legal determination of the

defendant’s claim of qualified immunity, appellate jurisdic-

tion 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 (2011) (citing Mitchell, 472 U.S. at

525–26). “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 (1995)). Thus, we have jurisdiction pursuant to

28 U.S.C. § 1291 over this appeal only insofar as we may re-

view the district court’s determination that genuine issues of

fact preclude the resolution of McClone’s qualified immuni-

ty 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.

No. 14-1794 5

One possible affirmative defense, however, is qualified im-

munity. This is a doctrine that protects government officials

“from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitution-

al rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omit-

ted). 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 vindi-

cate 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 viola-

tion. 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 Je-

rome’s Fourth Amendment freedom from unreasonable sei-

zures. 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 an-

swered 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

6 No. 14-1794

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 (1989). The court must engage in

“a careful balancing of the nature and quality of the intru-

sion on the individual’s Fourth Amendment interests against

the countervailing governmental interests at stake.” Id. at

396 (quotation marks and citation omitted). In doing so, it

should consider “the facts and circumstances of each partic-

ular case, including the severity of the crime at issue, wheth-

er 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 omit-

ted). In other words, a person has a right not to be seized

through the use of deadly force unless he puts another per-

son (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 ar-

rest 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 ob-

jectively reasonable belief that he (McClone) was in immi-

nent danger. Given the facts of this case, that is the only the-

ory McClone could advance. Jerome was alone in an en-

closed garage. His wife had locked herself in the house, and

his son was miles away. It is true that Jerome had a prior fel-

ony conviction and thus he was violating 18 U.S.C. § 922(g)

by possessing a firearm. Nonetheless, taking the facts as Je-

rome recounts them, Jerome did nothing to suggest that he

No. 14-1794 7

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 sus-

pect (1) ‘poses a threat of serious physical harm, either to the

officer or to others,’ or (2) ‘committed a crime involving the

infliction or threatened infliction of serious physical harm’

and is about to escape.”) (quoting Tennessee v. Garner, 471

U.S. 1, 11–12 (1985)).

We recognize that our analysis of the objective reasona-

bleness of McClone’s actions must be “from the perspective

of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight,” and that we must “allow for the

fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is neces-

sary in a particular situation.” Plumhoff v. Rickard, 134 S. Ct.

2012, 2020 (2014) (citing Graham, 490 U.S. at 396–97). “What

is important is the amount and quality of the information

known to the officer at the time he fired the weapon when

determining whether the officer used an appropriate level of

force.” Muhammed, 316 F.3d at 683 (citation omitted).

So what did McClone know? He knew four things: 1) Je-

rome had access to a firearm and maybe ammunition; 2)

someone had called 911 saying that Jerome was suicidal; 3)

Jerome did not want to talk to the dispatcher and had not

responded to McClone’s knocks; and 4) there were sounds

from inside the garage that sounded like pattering on cup-

board doors. In addition, Jerome had hung up on the dis-

patcher and told her to tell the officer to leave the premises.

(The parties do dispute why Jerome did not respond to

McClone’s knocks on the garage: Jerome says that he did not

8 No. 14-1794

hear any outside noises until McClone kicked down the

door, and McClone feared imminent violence.)

These facts fall short of suggesting anything more than

that Jerome was putting himself in imminent danger.

Neither Susan nor Jerome told the dispatcher that Jerome

was going to harm the responding officer nor did Jerome say

anything to McClone when the officer arrived and knocked.

Cf. DeLuna v. City of Rockford, 447 F.3d 1008, 1011–12 (7th Cir.

2006) (an officer’s use of deadly force was reasonable when

suspect said “I've got something for you. You are going to

have to kill me,” and refused to raise his hands or stop

walking toward the officer).

Taking another perspective, McClone also argues that he

was entering what he calls a “fatal funnel,” an enclosed

space through a single entrance. A reasonable officer, he

continues, would see this as an inherently dangerous en-

counter. But McClone does not explain why a reasonable of-

ficer would believe that he was in imminent danger simply

because he was entering an enclosed garage with a single

entrance. Essentially, this argument proves too much. If we

were to adopt it, we would be saying that officers are enti-

tled, when responding to a suicide call, to use deadly force

any time they forcibly enter a single-entrance room. We are

aware of no ruling that permits this sort of shoot-on-sight

response to this class of encounters.

McClone also insists that it is undisputed that he be-

lieved his life was in danger because of the way Jerome was

holding the gun. The critical problem with that argument, as

the district court recognized, is that the way in which Jerome

was holding the gun is disputed. Our task is to determine,

under Jerome’s version of the facts, if McClone was objec-

No. 14-1794 9

tively reasonable in his belief that his life was in danger. At

the moment McClone kicked down the door and saw Je-

rome, McClone only knew the four relevant facts we re-

viewed earlier. Those facts are not enough to justify the in-

stant use of deadly force. It does not matter for purposes of

the Fourth Amendment that McClone subjectively believed

that his life was in danger. The test is an objective one, and

taking the facts as Jerome presents them, it is not met.

As the district judge rightly noted, if Jerome had the gun

raised to his shoulder and pointed at McClone, then

McClone would have been justified in using deadly force

and hence entitled to qualified immunity. See Bell v. Irwin,

321 F.3d 637, 639 (7th Cir. 2003). That alternate set of facts

would have made McClone’s assessment of the situation ob-

jectively reasonable. But, to repeat, the facts are disputed,

and that is why the district judge was correct to determine

that for present purposes Jerome has alleged actions that

violated his Fourth Amendment right against unreasonable

seizures.

B

We now turn to whether the right Jerome is asserting was

clearly established at the time of the events. “To be ‘clearly

established,’ the right in question must be ‘sufficiently clear

that a reasonable official would understand that what he is

doing violates that right. This is not to say that an official ac-

tion is protected by qualified immunity unless the very ac-

tion in question has previously been held unlawful; but it is

to say that in the light of pre-existing law the unlawfulness

must be apparent.’” Miller v. Jones, 444 F.3d 929, 934 (7th Cir.

2006) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)).

10 No. 14-1794

In excessive force cases, “in addition to the deference of-

ficers receive on the underlying constitutional claim, quali-

fied immunity can apply in the event the mistaken belief

was reasonable.” Saucier v. Katz, 533 U.S. 194, 206 (2001). In

essence, McClone enjoys a kind of double deference: “the

substantive constitutional standard protects [his] reasonable

factual mistakes” and “qualified immunity protects [him]

from liability where [he] reasonably misjudge[d] the legal

standard.” Catlin v. City of Wheaton, 574 F.3d 361, 369 (7th

Cir. 2009). Jerome has the burden of either identifying a

“closely analogous case that established a right to be free

from the type of force the police officers used on him” or of

showing “that the force was so plainly excessive that, as an

objective matter, the police officers would have been on no-

tice that they were violating the Fourth Amendment.”

Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013) (quota-

tion marks and citation omitted).

Under the first approach, Jerome must “produce a case

clearly establishing the right in a particularized sense, rather

than in an abstract or general sense.” Id. at 900 (quotation

marks and citation omitted). “Existing precedent must have

placed the statutory or constitutional question beyond de-

bate.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). The Su-

preme Court has “‘repeatedly told courts … not to define

clearly established law at a high level of generality,’ since

doing so avoids the crucial question whether the official act-

ed reasonably in the particular circumstances that he or she

faced.” Plumhoff, 134 S. Ct. at 2024 (quoting al-Kidd, 131 S. Ct.

at 2084).

Jerome relies on two Supreme Court cases, Graham v.

Connor, 490 U.S. 386 (1989), and Tennessee v. Garner, 471 U.S.

No. 14-1794 11

1 (1985), and a handful of decisions from our sister circuits.

Graham and Garner stand for the proposition that a person

has a constitutional right not to be shot unless an officer rea-

sonably believes that he poses a threat to the officer or

someone else. The court of appeals cases are even more spe-

cific: they say that officers may not use deadly force against

suicidal people unless they threaten harm to others, includ-

ing the officers. See, e.g., Mercado v. City of Orlando, 407 F.3d

1152, 1157–58 (11th Cir. 2005) (“All of the factors articulated

in Graham weigh in favor of Mercado. Because he was not

committing a crime, resisting arrest, or posing an immediate

threat to the officers at the time he was shot in the head, if

Padilla aimed for Mercado’s head, he used excessive force

when apprehending Mercado.”); Yates v. City of Cleveland,

941 F.2d 444, 449 (6th Cir. 1991) (concluding in a § 1983 ex-

cessive-force case that the two versions of a police shooting

presented a classic factual dispute and that the reasonable-

ness of the shooting was a jury question).

McClone argues that there is no rule flatly forbidding the

use of deadly force even if a weapon is not directly pointed

at an officer. But the cases on which he relies are different

from this one: they involve suspects who threatened the of-

ficer in some way. See, e.g., Henning v. O'Leary, 477 F.3d 492,

495–96 (7th Cir. 2007) (concluding deadly force was reasona-

ble where suspect resisted arrest); DeLuna, 447 F.3d at 1011–

12. As our account of Jerome’s version of the facts demon-

strates, there is no evidence that Jerome threatened McClone

and so that theory cannot help McClone.

Even if we were to conclude that no other decisions are

sufficiently analogous to be pertinent, we would still be un-

able to uphold a finding of qualified immunity on this rec-

12 No. 14-1794

ord. McClone’s shooting of Jerome while Jerome was pas-

sively sitting in a chair with the gun across his lap would

meet the alternative standard of plainly excessive conduct.

Recall that qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” al-

Kidd, 131 S. Ct. at 2085 (quotation marks and citation omit-

ted). Kicking down a door and immediately shooting a sui-

cidal person who is neither resisting arrest nor threatening

anyone save himself is an excessive use of force. And each of

the four shots inflicted injury on Jerome. McClone did not

look through the other windows into the garage to see what

Jerome was doing, nor did he try to talk to him. Instead,

within three minutes of arriving at the scene, McClone

opened fire. Either viewed as so plainly excessive that no

analogous case is needed, or viewed in light of existing au-

thority, this was an excessive use of force.

IV

The existence of a factual dispute about the circumstanc-

es surrounding McClone’s decision to fire on Jerome pre-

cludes a ruling on qualified immunity at this point. The dis-

trict court correctly recognized this, and thus its judgment is

AFFIRMED.