# Rebecca Gysan v. Steven Francisko

> Court of Appeals for the Seventh Circuit · July 13, 2020

URL: https://www.frixlaw.com/law-library/cases/4547980

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** July 13, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Easterbrook
- **Nature of suit:** civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the

United States Court of Appeals
For the Seventh Circuit
____________________

No. 19-1471
REBECCA GYSAN, individually and as executor of the estate of
Shane Cataline,
Plaintiff-Appellant,
v.

STEVEN FRANCISKO and MARC MILLER, Director of the Illinois
Department of Natural Resources,
Defendants-Appellees.
____________________

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-8254 — Jorge L. Alonso, Judge.
____________________

ARGUED JANUARY 9, 2020 — DECIDED JULY 13, 2020
____________________

Before EASTERBROOK, WOOD, and BARRETT, Circuit Judges.
EASTERBROOK, Circuit Judge. On the ﬁrst day of deer-
hunting season in 2013, Oﬃcer Steven Francisko was check-
ing hunters’ licenses to prevent poaching. He saw a van
parked on the side of a road; immediately across the road,
armed hunters had just emerged from the woods. Francisko
approached the driver, who turned out to be Shane Cataline.
2 No. 19-1471

Francisko thought that Cataline was acting strangely and
was reluctant to answer questions, though he handed Fran-
cisko his driver’s license. While Francisko was in his car do-
ing a license check, Cataline called 911 and said: “I am in a
lot of trouble right now. … I think I am going to be disap-
pearing or something.” He hung up without requesting as-
sistance. Francisko found that Cataline’s license was valid
and that he was not wanted on a warrant, so he told Cataline
that he was free to go—though he thought that Cataline
looked tired.
By the time Cataline drove away, Francisko had been
joined by State Trooper Luke Kuehl in a second car. The 911
operator, worried about the strangeness of Cataline’s state-
ments, called back, but he did not answer. The operator
called the dispatcher, who reached Kuehl’s supervisor, who
told him to stop Cataline to check whether he was ﬁt to
drive. (Everyone calls this a “welfare check,” meaning that it
concerned the welfare of both Cataline and other drivers he
might endanger.) Meanwhile Francisko had told Kuehl that
he suspected that Cataline might be carrying drugs. The two
oﬃcers followed Cataline’s van onto the eastbound lanes of
I-88 and eventually pulled it over, though they took a while
to see whether he violated any traﬃc laws that might sup-
port a stop.
Cataline stopped his van on the side of the highway after
Kuehl turned on his ﬂashing lights. Kuehl parked his car be-
hind the van, and Francisko parked in front. The oﬃcers
asked Cataline to put the van in park, turn oﬀ the engine,
and hand over the keys. He did none of these things and
stared straight ahead. Told that the oﬃcers wanted to ask
about the 911 call, Cataline ignored them and continued to
No. 19-1471 3

look ahead. Again, and then a third time, they told Cataline
to turn oﬀ the engine. He did not comply. Instead he put the
van into reverse, obtained enough room to turn 180°, and
pointed the van west in the eastbound lanes of the Interstate.
Francisko, who had to jump out of the way to avoid being
hit, started trying to warn approaching traﬃc. Cataline then
made a further 90° turn and plowed the van into the side of
Kuehl’s car, bending its open door forward (the wrong way)
on the hinge. Kuehl and Francisko say that Kuehl was
pinned behind the door.
A dashboard camera on Kuehl’s car was pointed straight
ahead and recorded the van making the ﬁrst 180° turn, but
that maneuver took it out of the ﬁeld of view. The audio por-
tion of the recording continued, however, and the sound of
the collision is followed by the sound of the van’s engine
running and tires spinning after the crash, plus the voice of
someone screaming. Francisko jumped onto the hood of Ku-
ehl’s car and shot Cataline, who died at the scene. The video
continued, and Kuehl can be seen limping.
Rebecca Gysan, Cataline’s mother and the executor of his
estate, ﬁled this suit under 42 U.S.C. §1983. She contended
that the police thrice violated the Fourth Amendment (ap-
plied to the states by the Fourteenth): ﬁrst by asking ques-
tions while Cataline’s van was stopped, next by directing
Cataline to stop driving while his van was moving, and ﬁ-
nally by shooting him. The district court granted summary
judgment to both defendants—Francisko and Marc Miller,
director of the state agency that employed Francisko. 2019
U.S. Dist. LEXIS 23805 (N.D. Ill. Feb. 14, 2019).
The judge rejected the ﬁrst two theories on the merits and
the third after concluding that Francisko is entitled to quali-
4 No. 19-1471

ﬁed immunity because existing precedent would not have
made clear to all reasonable oﬃcers that the use of deadly
force was forbidden. On appeal Gysan has abandoned any
claim based on the initial encounter between Francisko and
Cataline, and her brief does not so much as mention Miller.
Our discussion is limited to the remaining theories.
We start with the shooting. Gysan proceeds as if showing
that the van should not have been stopped would be enough
to demonstrate that Francisko could not lawfully have shot
Cataline. Doubtless the stop was one step in the causal chain
leading to Cataline’s death, but an improper stop would not
demonstrate that Francisko used excessive force under the
circumstances that he faced after the stop occurred. Los Ange-
les v. Mendez, 137 S. Ct. 1539 (2017), holds that oﬃcers who
make errors that lead to a dangerous situation retain the
ability to defend themselves. We therefore put aside (for
now) the question whether the oﬃcers should have stopped
Cataline and ask whether it was clearly established that the
Constitution forbade the use of deadly force under the cir-
cumstances that ensued.
Whether it is “clearly established” that the oﬃcial con-
duct is forbidden is the principal issue when a defendant as-
serts qualiﬁed immunity. See, e.g., Escondido v. Emmons, 139
S. Ct. 500 (2019). And few propositions are as well estab-
lished in favor of police oﬃcers as that they are entitled to
use deadly force to protect themselves or the public from an
imminent threat of serious harm. See, e.g., Tennessee v. Gar-
ner, 471 U.S. 1 (1985). Mendez and Emmons discuss many of
these decisions. Recent opinions in this circuit illustrate the
point. King v. Hendricks County Commissioners, 954 F.3d 981
(7th Cir. 2020), holds that police who shot a person who
No. 19-1471 5

charged them with a knife were entitled to qualiﬁed immun-
ity, and Ybarra v. Chicago, 946 F.3d 975 (7th Cir. 2020), holds
that police did not violate the Fourth Amendment by shoot-
ing the driver of a ﬂeeing car from which shots had recently
been ﬁred.
Gysan does not doubt that police may use deadly force to
protect themselves. Instead she contends that Cataline was
not a danger to them. Yet he had violated an order to turn oﬀ
the engine; then he turned the van around, began to drive
the wrong way on an expressway, and turned again to hit a
police cruiser. All of that is undisputed.
Gysan suggests that, after smashing into Kuehl’s car,
Cataline may have put up his hands in surrender. That’s
conceivable, though we do not see how it could be proved;
as in King, the only person in a good position to oﬀer evi-
dence contradicting the police account is dead. Francisko
and Kuehl both testiﬁed that Kuehl was wedged behind the
door and at continuing risk; again Gysan lacks contrary evi-
dence. What objective evidence we have supports the oﬃc-
ers: the van’s engine continued to run at high speed until
Francisko shot Cataline, which is inconsistent with his de-
sisting from the aoack and surrendering. Kuehl appears in
the video to walk with a limp after the events, and Gysan
does not deny that the voice heard screaming was Kuehl’s;
this supports the oﬃcers’ contention that Kuehl’s life was at
stake. Francisko is entitled to qualiﬁed immunity.
This brings us back to the question whether the traﬃc
stop violated the Fourth Amendment. Gysan’s brief left us
uncertain whether she seeks damages for the stop, inde-
pendent of the shooting, but at oral argument her lawyer
said that she is. The briefs do not address questions such as
6 No. 19-1471

whether invasion of privacy, loss of time, or the other inju-
ries from an unnecessary traﬃc stop survive the driver’s
death and what damages, if any, an estate may pursue. Rob-
ertson v. Wegmann, 436 U.S. 584 (1978), holds that state sur-
vival statutes determine the answers for suits under §1983,
yet the parties’ briefs do not mention how Illinois handles
these maoers. Instead of exploring these issues on our own,
we stop with the question whether Cataline would have had
a good claim, had he lived. Cf. United States v. Sineneng-
Smith, 140 S. Ct. 1575 (2020).
Let us suppose that Francisko was looking for a pretext
that would enable him to stop the van so that he could check
for drugs. That does not maoer because analysis under the
Fourth Amendment is objective. Whren v. United States, 517
U.S. 806 (1996), holds that as long as a stop is supported by
an objectively suﬃcient cause, a court must ignore the oﬃc-
ers’ motivations. So we ask whether it was reasonable to stop
Cataline’s van.
The answer is yes. Cataline’s behavior when initially
questioned and the odd 911 call both would have led an
oﬃcer to be concerned that he was tired or under the inﬂu-
ence of drugs, which would have posed a danger to himself
and other drivers. After learning about the 911 call the dis-
patcher and Kuehl’s supervisor both concluded that he
should stop the van and inquire about those potential prob-
lems. And when Francisko set out to ﬁnd a pretext for the
stop, what he saw was consistent with concern about safety
on the road. Francisko and Kuehl testiﬁed that they saw the
van cross the white line on the right of the highway several
times. (The parties call this the fog line.) Inability to keep a
vehicle centered in the lane suggests that the driver is im-
No. 19-1471 7

paired. Gysan denies that the van crossed the fog line, but
again that contention is unsupported by evidence. The oﬃc-
ers’ testimony is the only evidence that we will ever have
about that subject. The stop was a reasonable one and com-
patible with the Fourth Amendment.
AFFIRMED

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4547980. Public record. Not legal advice.