Gabriella Siler v. City of Kenosha, Wisconsin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 19-1855

GABRIELLA SILER, et al.,

Plaintiffs-Appellants,

v.

CITY OF KENOSHA, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:17-cv-01324 — David E. Jones, Magistrate Judge.

____________________

ARGUED NOVEMBER 8, 2019 — DECIDED APRIL 29, 2020

____________________

Before RIPPLE, ROVNER, and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Aaron Siler’s estate and his daugh-

ter, Gabriella (collectively, “Ms. Siler”), brought this action

in the district court against Officer Paul “Pablo” Torres (“Of-

ficer 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 con-

frontation took place after Officer Torres, following the or-

ders of his dispatch, had attempted to apprehend Mr. Siler.

2 No. 19-1855

Ignoring the Officer’s orders, Mr. Siler ran and eventually

sought cover in a garage where Officer Torres, who had giv-

en chase, confronted him.

Ms. Siler also sought relief from the City of Kenosha pur-

suant to Monell v. Department of Social Services, 436 U.S. 658

(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 dis-

trict 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 Pro-

cedure, 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

1

claims against the City of Kenosha. The plaintiffs timely

filed their notice of appeal.

1 Ms. Siler contends that the district court abused its discretion in grant-

ing the motion to bifurcate the claims against Officer Torres and against

the City of Kenosha. We lack jurisdiction to review the district court’s

order bifurcating the trial. In Ms. Siler’s view, the appeal of the final

judgment, that is, the grant of summary judgment on the excessive force

claim, allows for appeal of the bifurcation order. Ms. Siler contends that

appealing the final judgment “brings up for review” all earlier rulings of

the district court that are adverse to the appellant, “except those that

(continued … )

No. 19-1855 3

The district court properly granted summary judgment

to Officer Torres. On the first prong of the qualified immuni-

ty inquiry, however, we respectfully part company with the

district court and hold, as a matter of law, that Of-

ficer 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., Of-

ficer Torres of the Kenosha Police Department was on vehi-

cle patrol when he received a call from dispatch requesting

( … continued)

have become moot.” App. R.23 at 3 (quoting LeBlang Motors, Ltd. v. Sub-

aru of Am., Inc., 148 F.3d 680, 689 (7th Cir. 1998)).

The bifurcation order is neither a final judgment that can be ap-

pealed, nor an earlier ruling that is “brought up” by the appeal of a final

judgment. Our appellate jurisdiction is limited to appeals from a final

decision of a district court. 28 U.S.C. § 1291; United States v. Henderson,

915 F.3d 1127, 1130 (7th Cir. 2019). “[A] decision is final for the purpose

of § 1291 if it ends the litigation on the merits and leaves nothing for the

district court to do but execute the judgment.” Baltimore Orioles, Inc. v.

Major League Baseball Players Ass’n, 805 F.2d 663, 666 (7th Cir. 1986). By

contrast, “‘[a] separate trial order under Rule 42(b) is interlocutory and

non-appealable.’” Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 442

(7th Cir. 2006) (quoting Reinholdson v. Minnesota, 346 F.3d 847, 850 (8th

Cir. 2003)). “It is settled” that “[s]uch orders are appealable only by certi-

fication and permission under 28 U.S.C. § 1292(b) or if they fall within

the ‘collateral order’ doctrine.” Helene Curtis Indus., Inc. v. Church &

Dwight Co., Inc., 560 F.2d 1325, 1335 (7th Cir. 1977) (emphasis added) (ci-

tations omitted). Because neither of those circumstances is present here,

we do not have jurisdiction to review the district court’s bifurcation rul-

ing.

4 No. 19-1855

assistance apprehending Mr. Siler. The dispatcher told Of-

ficer Torres that there was a warrant for Mr. Siler for stran-

gulation and suffocation. From the information provided,

Officer Torres also understood that Mr. Siler had taken a ve-

hicle 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 pur-

suit, 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, in-

2

cluding “stop,” “police,” and “get on the ground.” Mr. Siler

did not obey.

At one point during the foot chase, Mr. Siler outran Of-

ficer 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 re-

2 R.64 ¶ 34.

No. 19-1855 5

pair shop. Juan Carlos Salinas was standing near the en-

trance to the garage. His brother, Antonio Salinas Jaimes,

was inside. As Officer Torres approached the entrance, Sa-

linas gestured as if to indicate that Mr. Siler was inside.

When Officer Torres entered the garage, he saw Jaimes hold-

ing a baseball bat.

The following diagram shows an approximate overhead

view of the garage.

6 No. 19-1855

3

3 R.48-3 at 1 (Torres Decl. Ex. C).

No. 19-1855 7

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 approxi-

mate location.

When Officer Torres entered the garage, Mr. Siler was

hiding in a back room. Officer Torres yelled, “[W]here is he

4

at?” 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 at-

tempted 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. Of-

ficer 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

5

and mouse” 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

4 R.64 ¶ 57.

5 Id. at ¶ 61.

8 No. 19-1855

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” ex-

change. 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

6

you,” “no,” and “shoot me.” 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,

7

“fuck you,” “no,” and “shoot me.” 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

6 Id. at ¶ 72.

7 Id. at ¶¶ 77–78.

No. 19-1855 9

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 ap-

proximately 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 es-

tablished. “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, unconstitu-

tional. She correctly invokes 42 U.S.C. § 1983 as the predicate

for her cause of action. This section provides a cause of ac-

tion against public officers who violate the rights of individ-

uals. See Weinmann v. McClone, 787 F.3d 444, 447 (7th Cir.

2015).

Officer Torres has raised a defense of qualified immuni-

ty, which “protects government officials ‘from liability for

civil damages insofar as their conduct does not violate clear-

ly established statutory or constitutional rights of which a

reasonable person would have known.’” Id. (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, to prevail,

10 No. 19-1855

Ms. Siler must carry the burden of proof to show: (1) that Of-

ficer Torres’s use of deadly force was objectively unreasona-

ble and therefore a constitutional violation, and (2) that Of-

ficer 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 (2001). If Ms. Siler cannot

establish that Officer Torres violated a clearly established

right, he is entitled to qualified immunity even if he em-

ployed unreasonable force. See Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (explaining that qualified immunity protects

officers except those who are plainly incompetent or those

who knowingly violate the law).

Although Saucier instructed us to consider these two

8

questions in the sequence set forth in that opinion’s text, the

Supreme Court has since loosened this requirement. We

now have the discretion to “decid[e] which of the two

prongs of the qualified immunity analysis should be ad-

dressed first in light of the circumstances in the particular

case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Nonetheless, the Court also reminded us that “the Saucier

procedure ‘is often beneficial’ because it ‘promotes the de-

velopment of constitutional precedent.’” Plumhoff v. Rickard,

572 U.S. 765, 774 (2014) (quoting Pearson, 555 U.S. at 236). In

the case before us, we believe that our obligation to provide

further guidance to the bench and bar and to the law en-

forcement community counsels that we employ the Saucier

sequential protocol and address the merits of the constitu-

tional question presented.

8 Saucier v. Katz, 533 U.S. 194, 200 (2001).

No. 19-1855 11

The Fourth Amendment protects individuals from law

enforcement officers’ unreasonable use of deadly force in ef-

fecting an arrest. In Tennessee v. Garner, 471 U.S. 1, 7 (1985),

the Supreme Court stated this basic principle bluntly: “there

can be no question that apprehension by the use of deadly

force is a seizure subject to the reasonableness requirement

of the Fourth Amendment.” “Determining whether the force

used to effect a particular seizure is ‘reasonable’ under the

Fourth Amendment requires a careful balancing of ‘the na-

ture and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing govern-

mental interests at stake.” Graham v. Connor, 490 U.S. 386,

396 (1989) (quoting Garner, 471 U.S. at 8). In making this de-

termination, we must 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 re-

sisting arrest or attempting to evade arrest by flight.” Id.

However, there can be no question that “[d]eadly force may

be used if the officer has probable cause to believe that the

armed suspect (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.” Muhammed v. City of

Chicago, 316 F.3d 680, 683 (7th Cir. 2002) (quoting Garner, 471

U.S. at 11–12).

The principle established in Garner and applied in Mu-

hammed establishes an objective standard. See Graham, 490

U.S. at 396. We assess the totality of the circumstances “from

the perspective of a reasonable officer on the scene.” Id. This

perspective is critical. “[A] court must consider the amount

and quality of the information known to the officer at the

12 No. 19-1855

time.” Burton v. City of Zion, 901 F.3d 772, 780 (7th Cir. 2018)

(internal quotation marks omitted). In seeking to understand

the perspective of the officer on the scene, we must consider:

the information known to the officer at the time of the en-

counter; the duration of the encounter; the level of duress

involved; “and the need to make split-second decisions un-

der intense, dangerous, uncertain, and rapidly changing cir-

cumstances.” Horton v. Pobjecky, 883 F.3d 941, 950 (7th Cir.

2018); see also Graham, 490 U.S. at 396–97. Law enforcement

officers on the scene do not have the luxury of knowing the

facts as they are known to us, with all the benefit of hind-

sight, discovery, and careful analysis. Officers must act rea-

sonably based on the information they have. We must al-

ways keep in mind that encounters in the field require offic-

ers to make split-second decisions of enormous consequence.

If a reasonable officer in Officer Torres’s shoes would have

believed that Mr. Siler posed an imminent threat of serious

physical harm, or that he had committed a crime involving

serious physical harm and was about to escape, the Officer’s

use of force was reasonable. See Garner, 471 U.S. at 11.

The obligation to consider the totality of the circumstanc-

es in these cases often makes resort to summary judgment

9

inappropriate. Nevertheless, if a careful examination of the

papers reveals that the material facts are undisputed, and if a

9 SeeAbdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005) (observ-

ing that because “the Graham reasonableness inquiry nearly always re-

quires a jury to sift through disputed factual contentions, and to draw

inferences therefrom … summary judgment or judgment as a matter of

law in excessive force cases should be granted sparingly”) (internal quo-

tation marks omitted).

No. 19-1855 13

court draws all inferences from those facts in favor of the

nonmovant, reasonableness is a pure question of law. See

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007). Of course, when

material facts are disputed, a jury must resolve those disputes

and determine whether the officer acted reasonably. See Cy-

rus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010).

Indeed, in Cyrus, we noted that “summary judgment is often

inappropriate in excessive-force cases because the evidence

surrounding the officer’s use of force is often susceptible of

different interpretations,” particularly where “the one

against whom force was used has died, because the witness

most likely to contradict the officer’s testimony—the vic-

tim—cannot testify.” Id. On the other hand, we may consider

reasonableness as a matter of law when there are sufficient

undisputed material facts to draw a conclusion. See Dawson

v. Brown, 803 F.3d 829, 833 (7th Cir. 2015).

With these principles in mind, we now turn to the record

before us. Our examination of that record confirms, as

Ms. Siler maintains, that there is a dispute between the par-

ties as to whether Mr. Siler left the side of the SUV and went

to a nearby room to retrieve a bucket. We therefore must as-

sume, for purposes of summary judgment, that this event

did take place and draw all reasonable inferences in favor of

Ms. Siler. Even if we do so, however, our temporal focus

must remain on what Officer Torres knew at the time he shot

10

Mr. Siler. At that time, it is undisputed that Mr. Siler, ignor-

10 Ms. Siler does not dispute that Officer Torres was entitled to consider

all the information that had been conveyed by the dispatcher, even

though, unknown to him, some of that information was erroneous. Nor

would such an argument be meritorious. “Knowledge of facts and cir-

(continued … )

14 No. 19-1855

ing the possibility of escape through the open garage door

just past the rear of the SUV, had defied belligerently Of-

ficer Torres’s command by daring the Officer to shoot him.

Then, while holding something in his hand—recall that Of-

ficer Torres could not see Mr. Siler’s hands—he stepped in

the direction of the Officer. From the Officer’s perspective,

Mr. Siler was a significantly larger and younger man who

had a reputation for physical violence. He had refused every

opportunity to surrender during the chase, and, critically,

had decided to change the status quo of a standoff. Despite

the fact that the Officer had his service revolver in his hand,

Mr. Siler chose to become the aggressor. To Officer Torres,

the possibility of being overcome, or at the very least dis-

armed, was a real one. To have someone in Mr. Siler’s ag-

gressive state of mind—recall that Mr. Siler had just dared

the Officer to shoot him—gain possession of the service re-

volver and be able to use it against the Officer or the two by-

standers in the garage was, to put it mildly, an unacceptable

outcome. The Officer had the right to protect himself and the

bystanders through the use of deadly force. “‘[W]hen an of-

ficer believes that a suspect’s actions [place] him, his partner,

or those in the immediate vicinity in imminent danger of

( … continued)

cumstances gained after the fact … has no place in the … post-hoc analy-

sis of the reasonableness of the actor’s judgment.” Sherrod v. Berry, 856

F.2d 802, 805 (7th Cir. 1988). See Horton v. Pobjecky, 883 F.3d 941, 951 (7th

Cir. 2018) (observing that “we may not consider the fact that it turned

out Michael was unarmed because Pobjecky did not know that, and had

no reasonable way to know that, at the time”). At the time he received

the information from dispatch, Officer Torres had no reasonable way to

know that it was inaccurate.

No. 19-1855 15

death or serious bodily injury, the officer can reasonably ex-

ercise the use of deadly force.’” Muhammed, 316 F.3d at 683

(alteration in original) (quoting Sherrod v. Berry, 856 F.2d 802,

805 (7th Cir. 1988)). Because his use of force was reasonable,

Officer Torres did not violate Mr. Siler’s Fourth Amendment

rights.

Because there was no violation of Mr. Siler’s Fourth

Amendment rights, the City of Kenosha could not have in-

curred any liability under the Monell doctrine.

The judgment of the district court is affirmed.

AFFIRMED