Susan Doxtator v. Erik O'Brien

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2101

SUSAN DOXTATOR, et al.,

Plaintiffs-Appellants,

v.

ERIK O’BRIEN, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 19-cv-00137 — William C. Griesbach, Judge.

____________________

ARGUED FEBRUARY 23, 2022 — DECIDED JULY 12, 2022

____________________

Before SYKES, Chief Judge, and FLAUM and KANNE, ∗ Circuit

Judges.

FLAUM, Circuit Judge. Plaintiffs Susan Doxtator, Arlie Dox-

tator, and Sarah Wunderlich, in their capacities as Special Ad-

ministrators of Jonathon Tubby’s estate (the “Estate”), sued

∗ Circuit Judge Kanne died on June 16, 2022, and did not participate

in the decision of this case, which is being resolved under 28 U.S.C. § 46(d)

by a quorum of the panel.

2 No. 21-2101

various law enforcement entities under 42 U.S.C. § 1983 for

their respective roles in the events leading to Tubby’s death.

On October 19, 2018, Green Bay Police Department (GBPD)

officers arrested Tubby and transported him to jail for book-

ing. Upon entering the jail’s sally port (the secure entryway to

the jail), however, Tubby became non-compliant, refusing to

exit the squad car and concealing one hand under his shirt

while threatening to “do it” if officers came any closer. The

arresting officers called for backup, and Tubby was eventually

forced out of the car with pepper spray after he continued to

keep one hand under his shirt in a manner that, to officers on

the scene, indicated he had a weapon. Even upon exiting the

squad car, Tubby refused to surrender but instead rushed to-

wards the exit in an apparent attempt to escape. When one of

the officers on scene heard a “pop” that he believed to be a

gunshot coming from the weapon he presumed Tubby was

hiding, he discharged his firearm eight times, hitting Tubby

with five shots. Soon after, Tubby was pronounced dead.

The Estate filed suit, bringing § 1983 and state common

law claims against the shooting officer, various other re-

sponding officers, the City of Green Bay, Brown County, and

the municipalities’ law enforcement agencies. The defendants

moved for summary judgment, which the district court

granted. The Estate now appeals. For the following reasons,

we affirm the district court’s entry of summary judgment.

I. Background

A. Factual Background

Our description of the relevant facts mirrors the district

court’s detailed recitation and also draws from the video re-

cordings available in the record. At approximately 7:30 PM on

No. 21-2101 3

October 19, 2018, Green Bay Police Department officers Col-

ton Wernecke and his field training officer, Erik O’Brien, ini-

tiated a traffic stop of a vehicle with an unregistered license

plate that had just run a red light. Instead of immediately re-

sponding to the squad car’s overhead lights, siren, and spot-

light, the vehicle continued driving and then pulled into the

parking lot of a nearby hotel. It drove through the parking lot

before eventually pulling into a parking spot. The occupants

of the vehicle initially gave false identifications, but Wernecke

and O’Brien were ultimately able to identify the driver as

Tubby and the passenger as his aunt, Theresa Rodriguez. A

records check revealed that each had active warrants out for

their arrest.

O’Brien requested backup to provide cover, and another

officer from GBPD, Tyler Haack, showed up. When the offic-

ers approached the vehicle, Haack observed what he believed

to be marijuana, so the officers ordered Tubby and Rodriguez

to exit the vehicle. O’Brien observed as Wernecke handcuffed

Tubby behind his back, searched him, and placed him in the

back of their squad car. Meanwhile, Haack handcuffed Rodri-

guez, placed her in his squad car, and left to bring her to the

Brown County Jail. O’Brien and Wernecke waited in the park-

ing lot for a tow truck to arrive and remove Tubby’s vehicle.

It was approximately 7:35 PM when Wernecke placed

Tubby in the squad car, handcuffed and secured by a seatbelt,

but by 7:45 PM, Tubby had moved his hands under his legs,

removed his seatbelt, and moved his right hand under his

shirt. At around 8:10 PM, Wernecke and O’Brien drove Tubby

to the Brown County Jail to be booked on his outstanding ar-

rest warrant and on a new marijuana charge. Tubby sat

4 No. 21-2101

quietly, leaning forward, for the twelve minutes it took to

reach the jail.

Wernecke and O’Brien drove into the sally port of the jail

around 8:22 that evening, where they parked and exited the

squad car to escort Tubby inside. In accordance with the jail’s

rules, the officers placed their gear and weapons in the trunk

of the squad car before Wernecke walked around the vehicle

to retrieve Tubby. When Wernecke opened the rear driver’s

side door, he noticed Tubby’s hands were no longer behind

his back but were instead balled up under his shirt. Wernecke

repeatedly ordered Tubby out of the vehicle, but Tubby ig-

nored each command.

O’Brien then came around to Wernecke’s side to assist,

and he too immediately noticed that Tubby had moved his

hands to his front, where they were concealed under his

clothes. To him, it appeared that Tubby was pressing a barrel

of a gun against the inside of his shirt. When O’Brien at-

tempted to pull Tubby’s foot out of the car, Tubby stated,

“Don’t!” and, “I’ll fucking do it.” O’Brien slammed the door

shut and told Wernecke, “I think he’s got a gun.” O’Brien then

asked Wernecke what he thought, and Wernecke responded

that he must have missed something in his search of Tubby’s

person.

The officers then alerted the jail’s staff that they believed

Tubby to be armed. O’Brien and Wernecke retrieved their

weapons from the back of the squad car, took cover behind a

nearby transport van, and radioed police dispatch for backup,

reporting that “it looked like” Tubby had “something” in his

hand. O’Brien later relayed to police dispatch that Tubby had

something under his shirt pointed up to his chin and re-

quested that an officer bring a shield for their protection.

No. 21-2101 5

Starting at 8:30 PM, other officers, from both GBPD and the

Brown County Sheriff’s Office (BCSO), began to arrive on-

scene. Among them was GBPD Lieutenant Nate Allen, the su-

pervisor on duty that night, who spoke with the department’s

SWAT commander to develop a plan for removing Tubby

from the squad car. They decided that Allen would drive a

Bearcat, an armored SWAT vehicle, up near the squad car and

that a team of officers with shields would open the rear door

and command Tubby to exit the vehicle. If he did not comply,

they would deploy a K-9 unit to pull him out. The plan

changed, however, when Lieutenant Thomas Zeigle, the com-

mander of the BCSO SWAT team, arrived and asserted his ju-

risdiction over the situation. He determined that official acti-

vation of a SWAT team was unnecessary given the number of

officers, including SWAT-trained officers, already on scene.

Instead, Zeigle decided they would first break the back win-

dow of the squad car to establish better communication with

and visibility of Tubby. If they couldn’t coax him out of the

vehicle with words, Zeigle decided they would then deploy

pepper spray to get a reaction from Tubby and possibly force

him out of the vehicle and into the open, where he would

likely surrender.

The officers settled on this plan and began to set it into

motion. One group of officers formed an arrest team, another

spread out along the perimeter of the sally port’s open door

to prevent Tubby from escaping, and another piled into the

Bearcat vehicle. At approximately 9:02 PM, the Bearcat moved

into position, pulling up next to the driver’s side of the squad

car. While this was happening, Tubby appeared to put some-

thing in his mouth through his shirt, and he said, “I’ll fucking

do it.” Shortly after this, Tubby turned towards the back win-

dow and repeated, “I’ll fucking do it.”

6 No. 21-2101

At approximately 9:06 PM, Officer Eric Allen of GBPD

stood up through the top of the Bearcat’s turret and fired a 44-

millimeter wooden dowel into the rear windshield of the

squad car. Part of the window shattered, and Tubby recoiled,

saying, “Fuck you.” Allen then said, “Jonathon, put your

hands up where I can see them,” and, “Jonathon, put your

hands up.” Tubby maneuvered himself into the corner of the

squad car and began crying. He yelled, “Okay!” and then

said, “What are you guys doing to me?” Shortly after that, he

said, “Help me,” and “I’m scared,” though he never showed

both of his hands to the officers.

To get a better view into the backseat of the squad car, Of-

ficer Allen fired a second wooden dowel into the window,

and then another officer in the Bearcat used a tool to break out

the remaining pieces of the windshield. At this point, Allen

had a better view into the car, and he believed he saw Tubby

facing the now-broken rear windshield with his hands still

tucked under his shirt, holding something under his chin. Al-

len made repeated commands to Tubby to put his hands up,

but Tubby ignored each one. Around 9:09 PM, Allen used a

loudspeaker from the Bearcat to tell Tubby, “Jonathon, put

your hands up.” Tubby did not comply but responded, “What

are you guys doing to me?” Allen then implored Tubby to

obey their commands, saying, “Jonathon, put your hands up,

bud, so I can see them. Come on, Jonathon. Jonathon, we don’t

want to hurt you. Put your hands up, bud. Come on, Jona-

thon.” But, still, Tubby refused to comply and kept at least

one of his hands concealed under his shirt.

Allen, however, did not give up. At one point, he saw that

Tubby’s left hand was empty and outside of his shirt. When

Jonathon looked out the rear window, Allen said, “Jonathon,

No. 21-2101 7

put your hands up for me, bud. Put your hands up for me

Jonathon. I can see that one is clear. Let me see your other

hand. Let me see your other hand, bud.” Still, Tubby refused

to comply.

Less than a minute later, someone in the Bearcat handed a

canister of pepper spray up to Allen, and, without warning

Tubby, Allen deployed some of it into the rear of the squad

car.

Tubby began yelling and bouncing up and down in the

rear seat. He then scrambled out of the rear windshield and

onto the closed trunk of the squad car. He stood up and faced

out towards the officers, but he kept his right hand concealed

under his shirt. Unable to determine whether he was hiding a

weapon under his shirt, one officer, Sergeant Thomas Den-

ney, fired a bean bag, which struck Tubby in the lower abdo-

men and caused him to fall off the trunk of the squad car and

onto the ground. Tubby quickly rose to his feet and moved

towards the open sally port door, where several officers—in-

cluding Officer O’Brien—were standing.

While this was happening, another officer released the K9

unit, Pyro, from the Bearcat on a 15-foot lead, and the dog

closed in on Tubby as he was making his way towards the

sally port entrance. Pyro locked onto Tubby’s rear-end, and

the officer controlling Pyro pulled back on the lead to keep

Tubby from advancing towards the sally port entrance. Video

recorded from a squad car parked outside of the sally port

shows officers scattering to find cover as this was transpiring.

Sergeant Denney fired another beanbag round at Tubby,

causing him to fall to the ground. While he was falling, his

right hand fell above his head, empty. Then, as Pyro pulled

Tubby backwards, O’Brien heard a “pop” and fired his gun

8 No. 21-2101

eight times, striking Tubby with five of those rounds. All told,

approximately ten seconds passed between Tubby exiting the

squad car via the rear windshield and O’Brien shooting him.

When Tubby was down, officers rushed in to subdue him

and found that he was unarmed. They called for medical as-

sistance, and nurses administered first aid in an attempt to

save Tubby’s life. Tubby was pronounced dead at the scene.

The medical examiner later concluded his cause of death was

the gunshot wounds he sustained from O’Brien.

B. Procedural Background

Following Tubby’s death, the Estate filed suit, raising the

following list of claims: Count 1, § 1983 excessive force claim

against Officer O’Brien; Count 2, § 1983 failure-to-intervene

claim against Deputy Mleziva, Deputy Winisterfer, and John

Does; Count 3, § 1983 failure-to-train claim against Chief

Smith, Sheriff Delain, BCSO Captain Heidi Michel, the City of

Green Bay, and Brown County; Count 4, § 1983 excessive

force claim against City of Green Bay; Count 5, state-created

danger claim against Lieutenant Zeigle, Brown County, and

the city Green Bay; Count 6, battery against Officer O’Brien;

Count 7, negligence against Officer O’Brien, the City of Green

Bay, and Brown County; Count 8, negligence against Lieuten-

ant Zeigle, the City of Green Bay, and Brown County. The Es-

tate sought monetary and injunctive relief.

The district court dismissed all of the Estate’s claims on

summary judgment. It concluded that no reasonable jury

could conclude that O’Brien’s decision to fire his gun was un-

reasonable given the circumstances as he understood them at

the time, and, for this reason, it dismissed the § 1983 claim. It

further held that even if O’Brien’s use of force was

No. 21-2101 9

unreasonable, qualified immunity barred the Estate’s suit

against him. With regard to the failure-to-intervene and fail-

ure-to-train claims, the district court dismissed the claims on

the grounds that the underlying excessive force claim lacked

merit. The district court dismissed the state-created danger

claim because, it held, the doctrine did not apply to situations

where the harm suffered by the plaintiff was caused directly

by the state, rather than a private actor. In such situations, the

district court reasoned, § 1983 is the appropriate vehicle for

seeking relief. And, finally, given the dismissal of all the

claims over which it had original jurisdiction, the district

court declined to exercise supplemental jurisdiction over the

remaining state law claims. The Estate now appeals.

II. Discussion

We review summary judgment rulings de novo. Abdullahi

v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005). “Summary

judgment is warranted when the evidence, when viewed in a

light most favorable to the non-moving party, presents ‘no

genuine issue as to any material fact’ such that ‘the moving

party is entitled to a judgment as a matter of law.’” Id. (quot-

ing Fed. R. Civ. P. 56(c)). “[T]here is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for

a jury to return a verdict for that party. If the evidence is

merely colorable or is not significantly probative, summary

judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249–50 (1986) (citations omitted).

The district court took a domino-like approach to dismiss-

ing the Estate’s case in its entirety: When the § 1983 claim

against O’Brien fell, the failure-to-train and failure-to-inter-

vene claims based on O’Brien’s actions also fell, which, in con-

junction with the dismissal of the state-created danger claim,

10 No. 21-2101

caused the state law claims to fall (albeit only to state court).

We analyze the claims in this same order, beginning with the

§ 1983 claim against O’Brien.

A. The Estate’s § 1983 Claim Against O’Brien

The Estate’s primary cause of action is its claim under

§ 1983 against O’Brien alleging use of excessive force. Defend-

ants assert summary judgment was proper on this claim be-

cause the Estate cannot show O’Brien’s use of deadly force

was unreasonable. In the alternative, they argue that even if

the use of deadly force was unreasonable, O’Brien is entitled

to qualified immunity.

After reviewing the tragic events leading to Tubby’s

death, we hold that O’Brien’s conduct was reasonable under

the circumstances and that, even if he had violated a constitu-

tional right belonging to Tubby, it was not a clearly estab-

lished right. As such, we conclude that there was no constitu-

tional violation and that, even if there were, qualified immun-

ity would shield O’Brien from suit.

1. Did O’Brien Violate a Constitutional Right Belong-

ing to Tubby?

In broad terms, § 1983 authorizes suits against govern-

ment officials who violate a person’s constitutional rights. 42

U.S.C. § 1983. “A police officer’s use of deadly force on a sus-

pect is a seizure within the meaning of the Fourth Amend-

ment,” so an unreasonable seizure is a violation of the Fourth

Amendment cognizable under § 1983. Ybarra v. City of Chi.,

946 F.3d 975, 978 (7th Cir. 2020) (quoting Horton v. Pobjecky,

883 F.3d 941, 948 (7th Cir. 2018)); see Graham v. Connor, 490

U.S. 386, 394 (1989). “[A]ll claims that law enforcement offic-

ers have used excessive force … should be analyzed under the

No. 21-2101 11

Fourth Amendment and its ‘reasonableness’ standard ….”

Graham, 490 U.S. at 395 (emphasis omitted). This reasonable-

ness standard is objective, in the sense that it is the facts and

circumstances presented to the officer at the time of the con-

duct at issue, rather than the officer’s subjective intent, that

matter. Horton, 883 F.3d at 950.

With regard to the use of deadly force, the Supreme Court

has clarified:

Where the officer has probable cause to believe

that the suspect poses a threat of serious physi-

cal harm, either to the officer or to others, it is

not constitutionally unreasonable to prevent es-

cape by using deadly force. Thus, if the suspect

threatens the officer with a weapon …, deadly

force may be used if necessary to prevent es-

cape, and if, where feasible, some warning has

been given.

Tennessee v. Garner, 471 U.S. 1, 11–12 (1985); see also Ybarra, 946

F.3d at 978 (“A suspect has a constitutional right not to be shot

by an officer unless the officer ‘reasonably believes that the

suspect poses a threat to the officer or someone else.’” (quot-

ing Horton, 883 F.3d at 948)).

In evaluating whether an officer used excessive force, we

are wary of hindsight bias and acknowledge the real chal-

lenges that officers regularly face on the job. Graham, 490 U.S.

at 396–97. These challenges often turn dangerous, calling for

“split-second judgments” to safeguard both the public and

the responding officers “in tense, uncertain, and rapidly

evolving” circumstances. Id. at 397. We remain mindful that

the opportunity to debate the merits of various law

12 No. 21-2101

enforcement responses “in the peace of a judge’s chambers”

is a privilege unavailable to most officers in real time. Id.

With all of this in mind, we turn to back to the events that

played out in the sally port on the evening of October 19. Even

viewing them in the light most favorable to the Estate, we con-

clude that no reasonable jury could find O’Brien’s conduct

unreasonable under the circumstances.

First and foremost, Tubby intentionally led the officers to

believe he was armed by keeping his hand concealed under

his shirt in a manner that imitated the shape of a gun, and he

threatened repeatedly to “do it” as officers attempted to per-

suade him to surrender. By doing so, he effectively escalated

the situation into an armed standoff between himself and po-

lice. Furthermore, even when he eventually did exit the squad

car after being forced out with pepper spray, Tubby did not

surrender. Instead, even after he was hit with a bean bag

round, he stood up and ran towards the exit and the group of

officers standing thereby. Given that Tubby was undeterred

by the officers’ attempts to subdue him via less forceful means

and given that Tubby himself seemed to be intentionally com-

municating to the officers that he was armed and not afraid to

“do it,” it was reasonable for O’Brien to deploy deadly force

as Tubby rushed towards the exit and the nearby officers.

The Estate argues that O’Brien and the other officers

should have known that Tubby was unarmed because Officer

Wernecke had already searched him before placing him

handcuffed in the back of the squad car. But by the time the

officers reached the sally port and opened the door to let

Tubby out, he had squirmed his handcuffed hands from be-

hind his back. It would have been reasonable for O’Brien and

No. 21-2101 13

Wernecke to infer that Tubby had done this with a particular

goal in mind—for instance, to retrieve a weapon Wernecke

had not found on Tubby’s person or one that was laying in

the back of the squad car. In short, the fact that Tubby had

wriggled his handcuffed hands under his feet and then began

acting like he was concealing a weapon under his shirt was

more than enough to justify O’Brien’s belief that he was

armed, notwithstanding Wernecke’s earlier search.

Moreover, the record makes crystal clear that the officers

honestly believed that Tubby was armed. Though the reason-

ableness inquiry under the Fourth Amendment is objective—

and therefore subjective intentions and beliefs do not mat-

ter—the fact that so many officers all acted in accordance with

the idea that Tubby was armed lends credence to the reason-

ableness of the belief that he was indeed armed. The veracity

of this belief appears in many forms. First, O’Brien’s immedi-

ate comment to Wernecke upon slamming the squad door

shut after they attempted to get Tubby out was: “I think he’s

got a gun.” The pair then proceeded to call in SWAT-trained

personnel, who attempted to interact with Tubby only from

the turret of an armored vehicle. And when Tubby finally ex-

ited the back of the squad car and rushed towards the sally

port exit, video evidence shows Wernecke—the very officer

who had originally searched Tubby at the time of his arrest—

jumping over a wall for cover. At the same time, many other

officers can be seen scrambling for cover with hands on their

weapons. These are not the actions of officers who believe a

suspect to be unarmed.

The Estate also repeatedly claims that Tubby was “sub-

dued” at the time O’Brien shot him, because he was “hand-

cuffed, blinded, face-down on the ground, and being attacked

14 No. 21-2101

by a police canine.” This, the Estate argues, makes O’Brien’s

decision to shoot unreasonable. We carefully reviewed the

record and could find no clear video showing how Tubby was

positioned when O’Brien shot him. The autopsy photos are

consistent with his being shot while in a prone position, how-

ever, and the Estate’s expert testified that the abrasions on his

chin were sustained pre-mortem, indicating he may have

fallen to the ground before being shot. Viewing all facts in the

light most favorable to the Estate, we must accept the Estate’s

contention that Tubby was face-down on the ground at the

time O’Brien shot him.

Even so, however, we conclude that no reasonable jury

could find O’Brien’s decision unreasonable under the circum-

stances. First, being on one’s stomach on the ground does not

preclude one from firing a gun, so the fact that he was face-

down on the ground and handcuffed does not render him

“subdued,” especially if officers believed that one of his

hands contained a firearm. Additionally, by the time he was

shot, Tubby had thwarted all other attempts officers had

made to subdue him. These included: handcuffing him,

spraying him with pepper spray, firing two bean bag rounds

at him, and releasing a canine unit to apprehend him. Even

after all of these measures, Tubby continued to rush towards

the sally port exit and the officers guarding it. So, although

Tubby was on the ground at the time O’Brien fired his gun in

response to what he believed to be a gunshot, it was reasona-

ble for O’Brien to believe that Tubby was not in fact subdued

and would imminently get back up to his feet to rush for the

exit. Indeed, mere seconds earlier, O’Brien had observed

Tubby do just that after being shot with the first bean bag

round.

No. 21-2101 15

Finally, the Estate argues that O’Brien’s conduct was un-

reasonable because, by the time he fired his weapon, he had

seen each of Tubby’s hands empty and thus should have de-

duced that he was unarmed. The district court properly re-

jected this argument. Even if O’Brien had seen each of

Tubby’s hands empty, he never saw them simultaneously

empty and thus could not be sure that Tubby had not simply

moved his weapon from one hand to the other underneath his

shirt. Moreover, although the Estate insists that O’Brien

should have known that both of Tubby’s hands were empty,

the record reveals that only about ten seconds elapsed be-

tween Tubby’s exit from the squad car and O’Brien’s dis-

charge of his firearm. And this was a hectic ten seconds: mul-

tiple bean bag rounds were fired, officers were frantically

shuffling around the sally port’s exit with guns drawn, a ca-

nine unit was released to pursue Tubby, and Tubby fell mul-

tiple times. To expect the responding officers to have kept a

running mental inventory of exactly what was in which of

Tubby’s hands at each moment is unreasonable given the

pandemonium playing out in the sally port.

2. Assuming Arguendo that a Constitutional Right of

Tubby Was Violated, Was Such a Right “Clearly Es-

tablished?”

Even assuming O’Brien had violated a constitutional right

belonging to Tubby, the Estate has not put forth any cases

convincing us that the right was “clearly established.” We

therefore further hold that O’Brien is entitled to qualified im-

munity shielding him from suit.

The doctrine of qualified immunity shields public officials

from being sued in their official capacities unless their actions

“violated a statutory or constitutional right that was clearly

16 No. 21-2101

established.” Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (in-

ternal quotation marks omitted). The Supreme Court has held

that a right is “clearly established” for qualified immunity

purposes if its “contours were sufficiently definite that any

reasonable official in the defendant's shoes would have un-

derstood that he was violating it.” Id. In other words, “exist-

ing precedent must have placed the statutory or constitu-

tional question beyond debate.” Ashcroft v. Al-Kidd, 563 U.S.

731, 741 (2011). And in order to answer the question “beyond

debate,” the Supreme Court has repeatedly emphasized that

the clearly established law must share specific details with the

facts of the case at hand. White v. Pauly, 137 S. Ct. 548, 552

(2017) (“[T]he clearly established law must be ‘particularized’

to the facts of the case.” (quoting Anderson v. Creighton, 483

U.S. 635, 640 (1987)). Though to defeat a defendant’s assertion

of qualified immunity plaintiffs need not produce a case di-

rectly on point, defining the applicable law “at a high level of

generality” simply will not do. Al-Kidd, 563 U.S. at 741–742.

Only in the “rare ‘obvious case’ [will] the unlawfulness of the

officer's conduct [be] sufficiently clear [without] existing prec-

edent … address[ing] similar circumstances.” D.C. v. Wesby,

138 S. Ct. 577, 590 (2018). “[This] sounds like a high bar be-

cause it is—qualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Lopez

v. Sheriff of Cook Cnty., 993 F.3d 981, 988 (7th Cir. 2021) (quot-

ing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The Estate offers only two cases purporting to establish

that O’Brien violated a “clearly established” right belonging

to Tubby. Neither is at all close to being “particularized to the

facts of [this] case,” Pauly, 137 S. Ct. at 552, and, therefore, nei-

ther satisfies the “high bar,” Lopez, 993 F.3d at 988, required to

defeat the defendant’s assertion of qualified immunity.

No. 21-2101 17

First, the Estate points to Garner for its proposition that

“[a] police officer may not seize an unarmed, nondangerous

suspect by shooting him dead.” 471 U.S. at 11. But the Su-

preme Court itself has held that Garner is “cast at a high level

of generality” and therefore cannot clearly establish rights for

the purposes of qualified immunity, except in the most obvi-

ous cases. Brosseau v. Haugen, 543 U.S. 194, 199 (2004). As il-

lustrated by our discussion in the previous section, “[t]he pre-

sent case is far from the obvious one where … Garner alone

offer[s] a basis for decision.” Id.

Then the Estate cites this Circuit’s decision in Becker v.

Elfreich, 821 F.3d 920 (7th Cir. 2016), where we held that a rea-

sonable jury could conclude that a police officer used exces-

sive force in executing a search warrant when he deployed a

police canine to apprehend an arrestee using the “bite and

hold” technique. Id. at 927–28. While the discussion in Becker

includes more details than the rule from Garner, those details

share very few similarities with the instant case, and Becker

therefore cannot have clearly established the right asserted by

the Estate. Importantly, the arrestee in Becker never displayed

any conduct suggesting to the officers that he was armed. In

fact, he “did not exhibit any sort of aggressive behavior to-

ward [the arresting officer] or anyone else.” Id. at 927. “Nor

was [the arrestee] actively resisting arrest or attempting to

evade arrest by flight.” Id. These dissimilarities with the in-

stant case are more than sufficient for us to conclude that

Becker provides no help to the Estate’s attempt to defeat

O’Brien’s assertion of qualified immunity.

* * *

We hold that, given Tubby’s conduct, no reasonable jury

could conclude that O’Brien’s use of force violated Tubby’s

18 No. 21-2101

Fourth Amendment rights. Furthermore, we hold that

O’Brien is entitled to qualified immunity because the right he

is alleged to have violated was not “clearly established” at the

time. For these reasons, we affirm the district court’s entry of

summary judgment on the Estate’s § 1983 claim against

O’Brien.

B. The Failure-to-Train and Monell Claims Against

the City of Green Bay and Chief Smith

The Estate also brings claims against the City of Green Bay

and GBPD Chief Smith. In particular, the Estate alleges that

both failed to properly train their officers in how to remove a

non-compliant arrestee from a squad car, and it alleges that

the City has a widespread practice of using excessive force—

a claim it brings under Monell v. Department of Social Services

of City of New York, 436 U.S. 658 (1978).

The district court properly dismissed each of these claims

on summary judgment because it had dismissed the underly-

ing claim against O’Brien. With respect to the Monell claim, “a

municipality cannot be liable under Monell when there is no

underlying constitutional violation by a municipal em-

ployee.” Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504

(7th Cir. 2010). With respect to the failure-to-train claim, “[a]

failure to train theory or a failure to institute a municipal pol-

icy theory requires a finding that the individual officers are

liable on the underlying substantive claim.” Tesch v. Cty. of

Green Lake, 157 F.3d 465, 477 (7th Cir. 1998). Because we affirm

the dismissal of the § 1983 claim against O’Brien, we also af-

firm the dismissal of the failure-to-train and Monell claims

against the City of Green Bay and Chief Smith.

No. 21-2101 19

C. The Failure-to-Intervene Claims Against Depu-

ties Mleziva and Winisterfer

The Estate also alleges that two of the other officers pre-

sent in the sally port are liable for failing to intervene and pre-

vent Tubby’s death. We affirm the district court’s entry of

summary judgment on these claims.

“An officer who is present and fails to intervene to prevent

other law enforcement officers from infringing the constitu-

tional rights of citizens is liable under § 1983 if that officer had

reason to know: (1) that excessive force was being used, (2)

that a citizen has been unjustifiably arrested, or (3) that any

constitutional violation has been committed by a law enforce-

ment official; and the officer had a realistic opportunity to in-

tervene to prevent the harm from occurring.” Yang v. Hardin,

37 F.3d 282, 285 (7th Cir. 1994) (emphasis omitted). In sum, an

officer must know that a citizen’s rights are being infringed,

and he must have a “realistic opportunity” to intervene.

“Whether an officer had sufficient time to intervene or was

capable of preventing the harm caused by the other officer is

generally an issue for the trier of fact unless, considering all

the evidence, a reasonable jury could not possibly conclude

otherwise.” Abdullahi, 423 F.3d at 774 (emphasis omitted)

(quoting Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467,

478 (7th Cir. 1997)).

In this case, neither Deputy Mleziva nor Deputy Winister-

fer had a realistic opportunity to intervene. The videos from

the record reflect that many of the responding officers (under-

standably, we think) had their guns drawn and pointed at

Tubby as he rushed towards the sally port exit. Because gun-

shots happen instantaneously, there was no period of time be-

fore O’Brien actually fired in which Mleziva and Winisterfer

20 No. 21-2101

could have known that he was going to shoot, at least not with

any higher likelihood than any of the other officers who had

their guns drawn. The deputies were also likely focused on

the supposedly armed, and possibly suicidal or homicidal,

suspect who seemed to be attempting to escape or attempting

to attack the officers towards whom he was rushing. It is

therefore wholly unrealistic to expect the deputies to have

trained their attention on O’Brien rather than said suspect or

any of the other officers who had their guns drawn. Because

no reasonable jury could conclude that either Deputy Mleziva

or Deputy Winisterfer had a realistic opportunity to inter-

vene, summary judgment on these failure-to-intervene claims

was warranted.

D. The Failure-to-Train Claims Against Brown

County and Brown County Sheriff’s Office

The Estate also brought failure-to-train claims against

Brown County and certain officers of the Brown County Sher-

iff’s Office, alleging that these entities failed to properly train

Deputies Mleziva and Winisterfer about how to intervene

when an officer is using excessive force. These claims fail for

the same reason as the failure-to-train claims against the City

of Green Bay and the Green Bay Chief of Police: the underly-

ing substantive claims—this time against Mleziva and Winis-

terfer—lack merit. See Tesch, 157 F.3d at 477 (“A failure to train

theory or a failure to institute a municipal policy theory re-

quires a finding that the individual officers are liable on the

underlying substantive claim.”).

E. The State-Created Danger Claim

Lastly, the Estate brought a § 1983 claim against Zeigle, the

City of Green Bay, and Brown County, alleging that these

No. 21-2101 21

entities violated Tubby’s constitutional right to due process.

In particular, the Estate brings this claim under the state-cre-

ated danger exception to the rule pronounced by the Supreme

Court in Deshaney. But the Estate misunderstands the holding

from Deshaney, and we hold that the facts of this case do not

fit into the state-created danger exception.

In DeShaney v. Winnebago County Department of Social Ser-

vices, a young boy had been in and out of hospitals with inju-

ries suggesting that his father was physically abusive. 489 U.S.

189, 192–93 (1989). Although government officials took minor

steps towards monitoring his safety, they allowed the boy’s

father to retain custody. Id. After the father eventually beat

the boy so severely that he was left with a permanent mental

disability, the boy and his mother sued the government offi-

cials for failing to remove him from his father’s care. Id. at 193.

The Supreme Court affirmed the decision of this Court, which

had, in turn, affirmed the district court’s dismissal of the case

on summary judgment. Id. at 193–94. The Supreme Court held

“that a State's failure to protect an individual against private

violence simply does not constitute a violation of the Due Pro-

cess Clause.” Id. at 197.

In DeShaney, the Court suggested that a different result

may have issued under either of two different circumstances:

(1) instances where the state has a “special relationship” with

(i.e., involuntary custody of) the victim such that the victim is

unable to protect himself, and (2) instances where the state

takes affirmative steps that subject the victim to harm or make

the victim more vulnerable to harm (the “state-created dan-

ger” exception). Id. at 199–201. Lower courts have since trans-

formed these into full-blown exceptions to Deshaney’s holding

that a state does not violate the Due Process Clause by failing

22 No. 21-2101

to protect an individual against private violence, though this

Court has described the exceptions as “limited” and “nar-

row.” First Midwest Bank Guardian of Est. of LaPorta v. City of

Chi., 988 F.3d 978, 988 (7th Cir. 2021), cert. denied sub nom. First

Midwest Bank v. City of Chi., 142 S. Ct. 389 (2021).

It is the state-created danger exception under which the

Estate brings its claims against Zeigle and the two municipal-

ities. The Estate alleges that Zeigle and the municipalities (via

their police officers) created the danger that eventually led to

Tubby’s death by deploying an ill-conceived plan to use pep-

per spray to induce Tubby to exit the squad car. This plan, the

Estate claims, inevitably led to the hectic scene that played out

and ultimately caused O’Brien to shoot Tubby.

But in attempting to take advantage of this “narrow” ex-

ception to Deshaney, the Estate misapplies Deshaney’s holding

to an entirely different scenario and then argues that the same

exceptions should apply. Deshaney held that the state does not

violate the constitution by failing to protect an individual

against “private violence.” Id. at 197 (emphasis added). This

Court has affirmed that this rule applies only to situations in

which the harm is perpetrated by private actors. See, e.g., Wil-

son v. Warren Cty., Ill., 830 F.3d 464, 469 (7th Cir. 2016) (“Due

Process does not require a state to protect citizens from pri-

vate acts unless the state itself creates the danger.”). Limiting

Deshaney’s rule to instances of private harm makes sense, too,

as of course the government violates constitutional rights

when it directly perpetrates unjustified violence against an in-

dividual. But in such cases, 42 U.S.C. § 1983 allows the victim

to seek redress directly for the harm rather than under a sig-

nificantly more attenuated “state-created danger” theory.

No. 21-2101 23

None of the cases cited by the Estate demand a different

result. For instance, the Estate argues that this Court’s holding

in White v. Rochford, 592 F.2d 381 (7th Cir. 1979), suggests that

the state-created danger doctrine does apply to public harms.

White, however, provides the Estate no help. In that case,

which was decided a decade before Deshaney, police officers

arrested a man after pulling him over on a Chicago highway

but left the minor children he was transporting on the side of

the road with no way to get home. The Court held that the

officers’ failure to protect the children from the harsh winter

weather constituted a violation of their due process rights and

allowed the case to proceed under 42 U.S.C. § 1983.

But the Estate’s attempt to stretch this holding is unper-

suasive. First, weather, unlike a police officer, is not a public

actor, and the case therefore does not stand for the proposi-

tion the Estate wants it to—namely, that the state-created dan-

ger exception to Deshaney allows plaintiffs to recover for

harms perpetrated directly by public officials. Nor does the

case even mention the phrase “state-created danger,” which

makes sense because it was decided ten years before

Deshaney. White, then, cannot stand for the proposition that

the state-created danger exception to Deshaney should be ex-

tended to harm affirmatively perpetrated by public actors. In

such instances, the proper vehicle for redress is a § 1983 claim

against the entities who perpetrated the harm, seeking redress

directly for that harm. None of the other cases cited by the

Estate come from this Circuit, and, moreover, none involves

facts analogous to those here.

Finally, the Estate claims that we will create a “loophole in

liability” if we hold that the state-created danger exception to

the Deshaney rule applies only to private harms. The Estate’s

24 No. 21-2101

only reason for this assertion is that such a rule would sup-

posedly preclude it from recovering anything if a jury deter-

mined that a reasonable officer could have believed that

Tubby was armed. In such a situation, O’Brien would not be

liable, and, the Estate claims, there would be no recourse for

the officers who forced out into the open a man they believed

to be armed, thereby creating a fraught situation likely to

cause harm.

The Estate’s conclusion on this point is simply not true. In

such a situation, state common law may provide recourse via

tort claims (like those the Estate brought in this very case),

and even if state law did not allow for such claims, it would

not follow that this Court can or must step in and use the Con-

stitution of the United States to fill that gap.

* * *

In sum, the Estate ignores the nuances of Deshaney and its

outgrowth of exceptions. The Estate attempts to frame the

“state-created danger” exception as a claim unto itself and ex-

tracts the applicable elements from their context, copying

them into its brief as if they make out a free-standing claim.

But Deshaney was limited to private acts of harm. Exceptions

to Deshaney’s holding thus also apply only to instances involv-

ing private acts of harm. This case involves harm carried out

by public law enforcement officers, and therefore Deshaney

and the exceptions thereto are wholly inapposite. We there-

fore affirm the lower court’s entry of summary judgment on

the Estate’s state-created danger claim.

No. 21-2101 25

III. Conclusion

Tragic as the consequences were, O’Brien’s conduct did

not violate Tubby’s constitutional rights to be free from un-

reasonable seizures, and, additionally, qualified immunity

shields O’Brien from liability. For both of these reasons, the

district court’s entry of summary judgment on the Estate’s

§ 1983 claim was proper. Without that claim, the other de-

pendent federal claims must also be dismissed. The last re-

maining federal claim, the state-created danger claim, has no

relevance to the facts of this case and should therefore be dis-

missed. Without any federal claims over which it had original

jurisdiction, the district court’s decision not to exercise sup-

plemental jurisdiction over the pendent state law claims was

not an abuse of discretion. For all of these reasons, we AFFIRM

the district court’s entry of summary judgment.