Conley-Eaglebear v. Miller et al

Filing 75

DECISION AND ORDER signed by Judge Pamela Pepper on 2/17/2016 DENYING 40 Plaintiff's Motion for Summary Judgment; DENYING 54 Plaintiff's Motion to Grant Motion for Summary Judgment; GRANTING 55 Defendants' Motion for Summary Judgment, and DISMISSING Case. (cc: all counsel); by US Mail to plaintiff (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERIC S. CONLEY-EAGLEBEAR,
Plaintiff,
v.

Case No. 14-cv-1175-pp

FRANK MILLER,
ROB RASMUSSEN,
and KURT WAHLEN,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 40), DENYING PLAINTIFF’S MOTION TO GRANT
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 54),
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO.
55), AND DISMISSING CASE
______________________________________________________________________________
The plaintiff is a Wisconsin state prisoner, representing himself. He filed
this lawsuit under 42 U.S.C. §1983, claiming that defendant City of Racine
Police Officer Frank Miller used excessive force when he shot the plaintiff, that
defendant City of Racine Police Officer Rob Rasmussen directed or acquiesced
in the excessive use of force, and that defendant Racine Police Chief Kurt
Wahlen failed to properly train his officers. Dkt. No. 8. The parties have filed
cross-motions for summary judgment. For the reasons explained in this order,
the court will deny the plaintiff’s motion for summary judgment, and grant the
defendants’ motion for summary judgment.

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FACTS
A.

Preliminary Matter
In this facts section, the court includes relevant facts from the

Defendants’ Proposed Findings of Fact and from the Plaintiff’s Proposed
Findings of Fact. The court includes only those facts that cite to supporting
materials in the record. See Fed. R. Civ. P. 56(c)(1); Civil L.R. 56(b)(1)(C)(i) (E.D.
Wis.). This means that the court has not included in this section many of the
facts from the Plaintiff’s Proposed Findings of Fact, because many of them did
not cite to the record.1 Likewise, most of the plaintiff’s disputes of the
defendants’ proposed facts do not cite to the record as required. See Fed. R.
Civ. P. 56(c)(1); Civil L.R. 56(b)(2)(B) (E.D. Wis.). The court does not include in
this section the plaintiff’s “disputes” that do not cite to the record.
B.

Relevant Facts
On June 3, 2010, at 23:12 hours, defendant Racine Police Officer Miller

received a call on his personal cell phone from Officer Freidel on his work cell
phone. Dkt. No. 58 ¶ 1. Officer Freidel told defendant Miller that a confidential
informant had contacted him with a tip about an incident that was in progress.
Id. at ¶ 2. Officer Freidel had previously contacted defendant Miller with
reliable and credible information from a confidential informant. Id. at 58 ¶ 3.
Officer Freidel told defendant Miller that his confidential informant just
observed a white male, who was with two white females, pull up his shirt and

1

 The plaintiff did file a sworn amended complaint (Dkt. No. 8) and a sworn

Declaration in Opposition to Defendants’ Motion for Summary Judgment (Dkt.
No. 68). These filings set forth the plaintiff’s version of the facts, and the court
references the filings in the “Discussion” section of this order. 
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display a handgun tucked in his waistband. Id. at ¶ 4. Officer Freidel told
defendant Miller that the white male with a gun had just left an apartment
building in the 2600 block of Mt. Pleasant Street. Id. at ¶ 5. Defendant Miller
told Officer Freidel that he and defendant Racine Police Officer Rasmussen
already were in the area. Id. at ¶ 6. Officer Freidel asked defendant Miller to
remain in the area. Id.
Defendant Miller was observing a parking lot between 2100 Romayne
Avenue and 2610 Mt. Pleasant Street with a pair of binoculars. Id. at ¶ 7.
Defendant Miller received several more calls from Officer Freidel at about 23:21
hours. Id. at ¶ 8. Defendant Miller observed an individual walking in the
parking lot of 2610 Mt. Pleasant. Id. The individual, later identified as the
plaintiff, was a white male wearing a black t-shirt and black shorts. Id. at ¶ 9.
He was walking with two females. Id. All three were walking towards the
entrance of 2100 Romayne Avenue. Id.
Defendant Miller noticed that as the plaintiff walked, he had his right
hand in his right front pocket. Id. at ¶ 10. Defendant Miller had attended two
training schools where part of the curriculum was identifying armed
individuals. Id. at ¶ 11. As defendant Miller watched the plaintiff walking, he
matched the behavior of what defendant Miller had been taught to look for
when attempting to identify an armed individual. Id. at ¶ 12. The plaintiff
walked distinctively and differently from a normal-type walk. Id. at ¶ 13. At
that time, defendant Miller knew that the plaintiff had something heavy,

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possibly a gun, in the waistband of his shorts, causing him to hold his pants
up by keeping his hand in his pocket as he walked. Id. at ¶ 14.
The plaintiff admits that he had a firearm tucked in his waistband
underneath his shirt while walking with the two females. Id. at ¶ 15. The
plaintiff described the gun as “a .44,” and stated that when it was at his waist
the barrel would be at his knee. Id. at ¶ 16.
After observing how the plaintiff walked, and having considered the
information received from Officer Freidel, defendant Miller decided they should
stop the plaintiff and identify him for the safety of the community. Id. at ¶ 17.
At 23:15 hours, while talking with Officer Freidel, defendant Miller initiated a
call for service at his location for a suspicious man. Id. at ¶ 18.
Defendant Miller drove his squad into the parking lot where the plaintiff
was, with his headlights and overhead lights off. Id. at ¶ 19. Defendant
Rasmussen followed him into the parking lot and parked behind him. Id.
Defendant Miller noticed that the plaintiff had made it to the doorway of 2100
Romayne Avenue. Id. at ¶ 20. As soon as Miller exited his squad car, the
plaintiff began to run. Id. Before the plaintiff began to run, defendants Miller
and Rasmussen did not see that the plaintiff had a weapon. Dkt. No. 42 at ¶ 6.
Defendant Miller yelled “stop” as the plaintiff ran toward the entrance.
Dkt. No. 58 at ¶ 21. As defendant Miller entered the building, he ran past one
of the females who had been with the plaintiff, and again yelled “stop.” Id. at
¶ 22. The second female who had been with the plaintiff was ahead of him, and
running. Id. at ¶ 23. As defendant Miller ran past her, she pushed him. Id.
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Defendant Miller decentralized her, and continued his pursuit of the plaintiff.
Id. As defendant Miller pursued the plaintiff, the plaintiff reached a second
hallway and turned right down that hallway. Id. at ¶ 24. Defendant Miller was
ten to fifteen feet behind the plaintiff when the plaintiff made the turn. Id. at
¶ 25. As defendant Miller made the turn, he saw the plaintiff near a set of
double doors. Id. Defendant Miller saw the plaintiff exit through the doors. Id.
at ¶ 26. As the plaintiff was either partially in the hallway, exiting the door, or
immediately after exiting the door, the plaintiff made an extremely exaggerated
draw motion with his right hand from his pants. Id. at ¶ 27. Based on his
training and experience, along with the information he had received from
Officer Freidel, defendant Miller believed that the plaintiff was drawing a pistol
from his waistband. Id. at ¶ 28. Defendant Miller observed a gun in the
plaintiff’s right hand, and followed the plaintiff out the door. Id. at ¶ 29.
As defendant Miller exited the door, the plaintiff looked back at him over
his right shoulder and began to turn left. Id. at ¶ 30. Defendant Miller briefly
lost sight of the gun, as the plaintiff’s side was now facing him in a bladed
fashion. The plaintiff was still moving away from defendant Miller when this
occurred. Id. at ¶ 31. Defendant Miller then noticed the barrel of the gun
coming up from the plaintiff’s left side as he continued to turn left. Id. at ¶ 32.
The barrel of the plaintiff’s gun did not make it to the point of being pointed at
defendant Miller, but it appeared to be moving in that direction. Id. at ¶ 33.
Defendant Miller now feared for defendant Rasmussen’s and his own life, or
that someone in the general area was in danger, and felt he had to take
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immediate action. Id. at ¶ 34. At that time, defendant Miller didn’t know the
plaintiff’s motives or intentions. Id. at ¶ 35.
Defendant Miller then discharged his firearm two times. Id. at ¶ 36. The
plaintiff was about five feet from a wooden fence when defendant Miller fired.
Id. at ¶ 37. The plaintiff took one more step after defendant Miller fired, and
crashed into the fence. Id. The plaintiff fell face down to the ground. Dkt. No.
58 ¶ 38. After the plaintiff was on the ground, defendant Miller noticed
defendant Rasmussen to his left. Id. Defendant Rasmussen began to move
toward the plaintiff, in an arc toward his head. Id. at ¶ 39. Defendant Miller
began to move toward the plaintiff, and as he got closer, he saw the gun lying
under the backside of the plaintiff’s right hand with his palm facing up. Id. at ¶
40. Defendant Miller then recovered the gun and placed it approximately ten
feet to the northeast of the plaintiff. Id. at ¶ 41.
Defendant Miller contacted dispatch and told them that they had a shots
fired incident, and that he and his partner were alright, but had a white male
party down. Id. at ¶ 42. Defendant Rasmussen then handcuffed the plaintiff.
Id. at ¶ 43. Defendant Miller maintained custody of the plaintiff until other
officers responded. Id. at ¶ 44. The plaintiff was transported to the hospital for
medical attention. Id. at ¶ 45.
Defendant Miller shot the plaintiff two times in the back of his body. Dkt.
No. 42 ¶ 12. Defendant Rasmussen states that when defendant Miller shot the
plaintiff, he never saw a firearm in the plaintiff’s hand, and the plaintiff’s back
was facing the defendants. Id. at ¶ 18. Defendant Miller states that when he
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shot the plaintiff, the plaintiff was turning left toward him, and the plaintiff was
sideways facing him in a bladed fashion. Id. at ¶ 19. Defendant Rasmussen
states that when he ran up to the plaintiff, he observed an entry wound to the
rear shoulder area and one to the left buttock. Id. at ¶ 20. Medical reports state
that there are two entry wounds to the back of the plaintiff’s body, one in the
left buttock and one to the posterior upper arm. Id. at ¶¶ 21-22.
Defendants Miller and Rasmussen state that they were not called to the
area to arrest or apprehend the plaintiff. Dkt. No. 42 ¶ 24. The plaintiff was not
wanted for committing a crime on or before the chase on June 3, 2010. Id. at
¶ 25.
DISCUSSION
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is genuinely disputed
must support the assertion by:
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(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information,
affidavits
or
declarations,
stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
B.

Fourth Amendment Excessive Force Law
The court analyzes excessive force claims relating to an arrest or other

seizure under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395
(1989). The court must engage in “a careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Id. at 396 (citation and
internal quotations omitted). That is, the court should consider “the facts and
circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. (citation omitted).
A police officer’s use of deadly force is a seizure under the Fourth
Amendment and therefore must be reasonable. Tennessee v. Garner, 471 U.S.
1, 27 (1985). An officer may use deadly force if he has probable cause to believe
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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. Garner,
471 U.S. at 11-12; see also Weinmann v. McClone, 787 F.3d 444, 448 (7th Cir.
2014) (“[A] person has a right not to be seized through the use of deadly force
unless he puts another person (including a police officer) in imminent danger
or he is actively resisting arrest and the circumstances warrant that degree of
force.”).
The court’s analysis of the objective reasonableness of the officer’s
actions must be “from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,” and the court 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 necessary in a particular situation.” Plumhoff v.
Rickard, ___ U.S. ___, 134 S. Ct. 2012, 2020 (2014) (quoting 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.” Weinmann, 787 F.3d at 449
(quoting Muhammed v. City of Chicago, 316 F.3d 680, 683 (7th Cir. 2002)).
C.

Discussion
1.

Defendants Wahlen and Rasmussen Are Entitled To Summary
Judgment Based on the Facts in the Record.

As an initial matter, the plaintiff concedes that he lacks evidence to
support a failure-to-train claim against defendant Chief Wahlen. Dkt. No. 67 at
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3. Accordingly, the court will grant the defendants’ motion for summary
judgment as to Wahlen. In addition, the record does not support a finding that
defendant Rasmussen acquiesced or directed defendant Miller to shoot the
plaintiff. Thus, the court will dismiss defendant Rasmussen for lack of personal
involvement in the plaintiff’s claim. See Burks v. Raemisch, 555 F.3d 592, 596
(7th Cir. 2009); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). That leaves
the plaintiff’s excessive force claim against defendant Miller.
2.

The Parties’ Arguments

In support of his summary judgment motion, the plaintiff contends that
“[t]he record is clear that the defendants violated [his] Fourth Amendment
constitutional rights when [they] gave chase to the plaintiff and shot him two
times in the back of his body.” Dkt. No. 41 at 6. The plaintiff reiterates his
argument in his summary judgment reply brief. Dkt. No. 63. He adds that the
defendants’ assertion that the plaintiff was fleeing from officers when defendant
Miller shot him, and the defendants’ acknowledgement that the plaintiff was
shot in the back, are inconsistent with defendant Miller’s statement that the
plaintiff was turning toward him and facing him sideways in a bladed fashion
when Miller shot the plaintiff. Dkt. No. 63 at 1-2. The plaintiff also points to the
defendants’ admission that he was not wanted for committing a crime prior to
the June 3, 2010, incident. Finally, the plaintiff references defendant Miller’s
assertion that he didn’t know what the plaintiff’s motives or intentions were
when he shot the plaintiff.

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In his response to the defendants’ summary judgment motion, the
plaintiff contends that factual issues preclude summary judgment on his
excessive force claim. Dkt. No. 67. He identifies three “disputed factual issues”:
(1) whether the plaintiff was facing the defendants when defendant Miller shot
him; (2) whether the entry wounds were from the side of his body or from the
back; and (3) whether the plaintiff was wanted for committing any crime before
the officers pursued him. Dkt. No. 65.
The defendants filed a combined brief in response to the plaintiff’s
motion for summary judgment and brief in support of their own summary
judgment motion. Dkt. No. 56. They contend that defendant Miller did not use
excessive force when he shot the plaintiff. Rather, the defendants submit that,
based on the plaintiff’s actions, defendant Miller reasonably feared for his life
and the lives of others, and that his use of force was justified and reasonable.
The defendants also contend that they are entitled to qualified immunity.
3.

The Plaintiff Has Identified No Genuine Issues of Material Fact.

The plaintiff’s three “disputed factual issues” are not “material,” as
required by Rule 56.
First, the court concludes that a material dispute does not exist as to
which way the plaintiff was facing when Miller shot him. The defendants’
submissions indicate that the plaintiff began to turn toward Miller, made an
exaggerated gun-drawing motion, defendant Miller saw the gun, and the
plaintiff’s side was facing Miller in a bladed fashion. The defendants did not
assert that the plaintiff was facing Miller head-on; he had had his back to
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Miller, and was in the process of turning when he was shot (a fact borne out by
the medical records the plaintiff attached).
In contrast, the plaintiff’s averments in his sworn amended complaint
and his declaration conflict. In his sworn amended complaint, the plaintiff
avers: “I was speaking to Jessica Hubrich on the cell phone belong[ing] to my
girlfriend Renee and fleeing from the police with no gun on me and I got shot in
my back two times by order of Police Officer Rasmussen[.]” Dkt. No. 8 at 5 ¶
11. In his declaration, however, the plaintiff avers that once he exited the door
into the courtyard, he
withdrew a firearm that I had concealed in my waist band. Once I
withdrew the firearm I threw it towards some bushes and
continued to run to the wooden fence straight from the courtyard
doors. Once I reached the wooden fence I reached my right hand
upward to attempt to climb over the fence when at that moment I
was shot two times.
Dkt. No. 68 at 1-2.
The court is not required to consider the facts set forth in these two
filings, see McNeil v. United States, 508 U.S. 106, 113, (1993); Pearle Vision,
Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008). The fact that the plaintiff tells
two different stories in the filings supports the court’s conclusion that his
version of events does not raise a genuine issue of material fact regarding
which way he was facing when he was shot. See Burton v. Downey, 805 F.3d
776, 785 (7th Cir. 2015) (citing Scott v. Harris, 550 U.S. 372, 380 (2007)). And
again, the fact that the plaintiff had—and admits that he had—a firearm in his
waistband as he was fleeing, and that he pulled it out of his pants—and admits

12

that he did so—while he was fleeing, makes the question of which direction he
was facing when Miller shot him immaterial.
Second, the defendants do not deny that defendant Miller shot the
plaintiff in the back of his body. The plaintiff’s medical records from his
exhibits, Dkt. No. 42-1, describe the gunshot wounds as located toward the
back and side of his body. See Dkt. No. 42-1 at 1 (shot “one time to the buttock
area and once to the left arm”); Id. at 5 (gunshot wound “to the left hip”), Id. at
7 (“left thigh/buttock gunshot wound”). The evidence, and the defendants’
admissions, demonstrate that both facts are true—the plaintiff had a wound to
the back of his body, and one to the side. That fact is not material to the
question of whether Miller used excessive force.
Finally, the defendants do not deny that the plaintiff was not wanted for
committing a crime on or before the chase on June 3, 2010. Nothing in the
record indicates that Miller and Rasmussen chased the plaintiff, or that Miller
shot him, because of a belief that he was wanted for a crime. The reason
defendant Miller fired his weapon is because he believed that the plaintiff posed
a threat of serious physical harm. Thus, there is no dispute—material or
otherwise—about the fact that the plaintiff was not wanted before June 3,
2010.
4.

The Defendants Are Entitled to Judgment As A Matter of Law.

A plaintiff has a constitutional protection against being shot on sight if
he did not put anyone else in imminent danger or attempt to resist arrest for a
serious crime. Weinmann, 787 F.3d at 448 (kicking down a door and
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immediately shooting an armed suicidal person who is neither resisting arrest
nor threatening anyone save himself is an excessive use of force); cf. DeLuna v.
City of Rockford, 447 F.3d 1008, 1011-12 (7th Cir. 2006) (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). In Garner, 471 U.S. at 21, the Court held that it was unreasonable
to kill a “young, slight, and unarmed” burglary suspect by shooting him in the
back of the head while he was running away on foot, and when the officer
“could not reasonably have believed that [the suspect] . . . posed any threat,”
and “never attempted to justify his actions on any basis other than the need to
prevent an escape.”
On the other hand, the Seventh Circuit has held that an officer who
shoots a suspect when the suspect is reaching for his firearm exhibits a
response that is “objectively reasonable,” and thus cannot be found to have
violated that suspect’s Fourth Amendment rights. Helman v. Duhaime, 742
F.3d 760, 763 (7th Cir. 2014).
In this case, the plaintiff admits that he drew a very large gun from his
waistband. The defendants’ facts demonstrate that he did so in an exaggerated
manner, and that he looked like he might raise the firearm toward Miller or
Rasmussen. Not knowing what the plaintiff was going to do, Miller acted
quickly, and fired his weapon. The plaintiff posed a serious threat of physical
harm to the officers, and potentially to the community at large. Under the
circumstances, defendant Miller’s response was “objectively reasonable,” did
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not constitute excessive force, and did not violate the plaintiff’s Fourth
Amendment rights.
Because there are no genuine issues of material fact in dispute, and
because the defendants are entitled to judgment as a matter of law, the court
will deny the plaintiff’s motion for summary judgment and grant the
defendants’ motion for summary judgment.
CONCLUSION
The court DENIES the plaintiff’s motion for summary judgment. (Dkt.
No. 40)
The court DENIES the plaintiff’s motion to grant plaintiff’s motion for
summary judgment. (Dkt. No. 54)
The court GRANTS the defendants’ motion for summary judgment. (Dkt.
No. 55), and ORDERS that the complaint is DISMISSED, effective immediately.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
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Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate after receiving an order.
Dated in Milwaukee, Wisconsin this 17th day of February, 2016.

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