Siler et al v. City of Kenosha et al

Filing 73

DECISION AND ORDER signed by Magistrate Judge David E Jones on 2/19/19 GRANTING 45 Defendant's Motion for Summary Judgment. (cc: all counsel) (kah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIELLA SILER,
a minor, by her mother and guardian, Ikesha King, and
ESTATE OF AARON SILER,
by special administrator, Lisa Cerna,
Plaintiffs,
v.

Case No. 17-CV-1324

CITY OF KENOSHA and
PAUL (PABLO) E. TORRES,
Defendants.

DECISION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Aaron Siler was shot and killed by Kenosha Police Officer Paul (Pablo) Torres
on March 14, 2015, after Siler fled from an attempted traffic stop. The shooting
occurred after Officer Torres located Mr. Siler hiding in an auto body repair shop.
With the two men separated by a parked SUV, Mr. Siler refused to get on the
ground and appeared to be reaching for something located on the repair shop’s floor.
When Mr. Siler made a move toward the front of the SUV and away from an open,
overhead garage door, Officer Torres fired seven shots, believing that Siler was
about to attack him.
Two-and-a-half years later, Mr. Siler’s daughter and estate sued Officer
Torres under 42 U.S.C. § 1983 for using unconstitutionally excessive force. Officer
Torres has moved for summary judgment, arguing that his use of deadly force was

reasonable and that he is otherwise entitled to qualified immunity. Because a
reasonable jury could find that the use of deadly force was objectively unreasonable
in this case, Officer Torres is not entitled to summary judgment on the plaintiffs’
excessive-force claim. However, the plaintiffs have failed to establish that Officer
Torres violated Mr. Siler’s clearly established constitutional rights. Officer Torres is
therefore entitled to qualified immunity from the plaintiffs’ excessive-force claim,
and his summary-judgment motion will be granted.
I.

Factual Background
At approximately 9:35 a.m. on March 14, 2015, City of Kenosha Police Officer

Pablo Torres was on vehicle patrol when dispatch requested assistance
apprehending Aaron Siler. See Defendant Torres’ Reply to Defendant Torres’
Proposed Findings of Fact ¶ 8, ECF No. 64. The 911 dispatcher told Officer Torres
that Mr. Siler was wanted for strangulation and suffocation. Def.’s Facts ¶ 9.1 The
dispatcher also told Officer Torres that Mr. Siler had taken a vehicle without
consent and that Officer Torres should use caution because Mr. Siler was known to
have violent tendencies. Def.’s Facts ¶ 10. Officer Torres indicated that he was in
the vicinity and could handle the call. Def.’s Facts ¶ 11.
Officer Torres used his squad’s computer to look up information about Mr.
Siler. Def.’s Facts ¶ 12. He confirmed the information from dispatch and learned
Despite what the dispatcher said, Mr. Siler did not have an active warrant for
strangulation and suffocation. Mr. Siler was on probation for a domestic assault by
strangulation and suffocation, and he had a warrant for violating the terms of his
probation. See Exhibit B to Declaration of Jonathan S. Safran, ECF No. 56-2 at 3–4;
Exhibit D to Safran Decl., ECF No. 56-4 at 4.
1

2

that Mr. Siler was 6′4″ and 26 years old. Def.’s Facts ¶¶ 12–13. At the time, Officer
Torres was 5′7″ tall, weighed 155 pounds, and was 42 years old. Def.’s Facts ¶¶ 7,
14.
As Officer Torres approached a stop light, Mr. Siler passed right in front of
him. Def.’s Facts ¶ 15. Officer Torres activated his emergency lights and sirens, but
Mr. Siler did not stop. Def.’s Facts ¶¶ 16–19. Instead, Mr. Siler sped off, traveling
over 80 miles per hour, driving on the wrong side of the road, and ignoring stop
signs and traffic controls. See Def.’s Facts ¶¶ 20–23. The vehicle chase ended after
three minutes when Mr. Siler sideswiped another vehicle and crashed his car. Def.’s
Facts ¶¶ 25–26.
Mr. Siler abandoned his vehicle and fled on foot. Def.’s Facts ¶ 27. Officer
Torres gave chase, noting that Mr. Siler was much taller and heavier than he was.
Def.’s Facts ¶¶ 28–29. During the chase, Officer Torres yelled out, “stop,” “police,”
and “get on the ground.” Def.’s Facts ¶ 34. Mr. Siler did not obey any of the
commands. Def.’s Facts ¶ 35. Rather, he continued to run, scaling two fences along
the way. Def.’s Facts ¶¶ 32–33. Officer Torres lost sight of Mr. Siler for a bit as Siler
outpaced him. Def.’s Facts ¶ 40. Eventually, Officer Torres located Mr. Siler and
followed him toward an auto body repair shop. Def.’s Facts ¶¶ 40, 42.2 Juan Carlos
Salinas was standing near the repair shop’s garage entrance on the south side of

A diagram was subsequently created to depict where Mr. Siler’s vehicle crashed
and the approximate route of the foot pursuit. See Def.’s Facts ¶ 41 (citing Exhibit A
to Declaration of Pablo E. Torres, ECF No. 48-1).
2

3

the building. Def.’s Facts ¶ 44. Mr. Salinas gestured to Officer Torres that the
person he was looking for was inside the garage. Def.’s Facts ¶ 45.
Inside the garage were two vehicles: a pick-up truck parked straight ahead,
and an SUV parked to the right at an angle. See Exhibit C to Torres Decl., ECF No.
48-3. Upon entering the garage, Officer Torres observed another man, Antonio
Salinas Jaimes, holding a baseball bat. Def.’s Facts ¶¶ 47–48. Officer Torres yelled,
“Where is he at?” Plaintiffs’ Statement of Additional Facts ¶ 4, ECF No. 55. Mr.
Salinas indicated that the man was hiding in a back room. See Exhibit G to Safran
Decl., ECF No. 56-7 at 8–9. Officer Torres pulled out his service weapon,3 see Safran
Decl., Ex. G at 9, and yelled repeatedly at Mr. Siler to come out, Pls.’ Facts ¶ 4.
Mr. Siler eventually exited the back room and ran along the passenger side of
the SUV toward the open garage door; however, he stopped when Officer Torres
blocked his path. See Safran Decl., Ex. G at 12; see also Exhibit F to Safran Decl.,
ECF No. 56-6 at 9. While standing near the back-driver side of the SUV, Officer
Torres ordered Mr. Siler to get on the ground. Def.’s Facts ¶ 60. Mr. Siler didn’t
comply. Def.’s Facts ¶ 63. And so began a standoff between Officer Torres and Mr.
Siler, who were standing on opposite sides of the SUV. Def.’s Facts ¶ 61. When
Officer Torres moved toward the front-driver side of the SUV, Mr. Siler moved to
the back-passenger side; when Officer Torres moved to the back, Mr. Siler moved to
the front, always very quickly. Def.’s Facts ¶ 64. All the while, Officer Torres was
ordering Mr. Siler to get on the ground, Def.’s Facts ¶ 61, and the garage door
3

Officer Torres also was equipped with a Taser and pepper spray. Pls.’ Facts ¶ 1.
4

remained open, see Def.’s Facts ¶ 65; see also Exhibit B to Torres Decl., ECF No. 482 (photograph depicting back-passenger side of SUV and open garage door).
After going back-and-forth several times, the two men stopped near the front
fender of the SUV, separated only by the vehicle’s hood—Officer Torres on the
driver side, and Mr. Siler on the passenger side. See Def.’s Facts ¶¶ 68–69; see also
Torres Decl., Ex. C. At that time, Mr. Jaimes and Mr. Salinas were in the same
room of the garage as Officer Torres, Mr. Siler, and the SUV. Def.’s Facts ¶ 70. Mr.
Jaimes was somewhere to Officer Torres’s left, and Mr. Salinas was somewhere
behind Officer Torres. Id. According to Officer Torres and Mr. Salinas, Mr. Siler
looked angry. See Def.’s Facts ¶ 71.
Officer Torres pointed his gun at Mr. Siler and ordered him to get on the
ground. Def.’s Facts ¶ 72. Mr. Siler didn’t comply, yelling, “fuck you,” “no,” and
“shoot me.” Id. He also began looking to the ground and then up at Officer Torres.
Def.’s Facts ¶ 73. Officer Torres could not see Mr. Siler’s hands. Def.’s Facts ¶ 74.
Mr. Siler then bent over and, when he stood up, Officer Torres could see a black,
cylindrical object pressed against Mr. Siler’s forearm. Def.’s Facts ¶ 75. Officer
Torres believed at the time that the object was a steel pipe; he later learned it was
the handle of a floor jack, to which it was attached. See Def.’s Facts ¶¶ 76, 80–82;
see also Exhibit D to Torres Decl., ECF No. 48-4 (photograph depicting floor jack in
foreground); Exhibit A to Declaration of Emanuel Kapelsohn, ECF No. 67-1

5

(photograph depicting the handle).4 Officer Torres still could not see Mr. Siler’s
hands. Def.’s Facts ¶ 75. He ordered Mr. Siler to “drop it” and “get on the ground.”
Def.’s Facts ¶ 77. Mr. Siler continued to shout, “fuck you,” “no,” and “shoot me.”
Def.’s Facts ¶¶ 78–79.
Mr. Siler bent down again as if he was grabbing something. Def.’s Facts
¶¶ 87, 90. But Officer Torres still could not see Mr. Siler’s hands. Def.’s Facts ¶ 88.5
Mr. Siler looked straight at Officer Torres. Def.’s Facts ¶ 91. Mr. Siler then took a
step to his right, toward the front-passenger corner of the SUV (and away from the
open garage door) but not past its front bumper. See Def.’s Facts ¶¶ 92–93, 100.
Officer Torres shot at Mr. Siler. See Def.’s Facts ¶¶ 111–17. The entire sequence
inside the garage lasted less than thirty seconds. Def.’s Facts ¶ 59.
Officer Torres was later told that he fired his gun seven times—successively
without pause or delay between shots—hitting Mr. Siler with six bullets: three in
the right shoulder and three in the chest. Def.’s Facts ¶¶ 112–14.6 The medical
examiner indicated that the shots to the shoulder were consistent with Mr. Siler
being upright, Pls.’ Facts ¶ 35, but the shots to the chest had a downward
Mr. Salinas claims that he saw Mr. Siler bend over as if he was attempting to lift
something and that he heard the sound of metal hitting the garage floor. See Def.’s
Facts ¶ 80. Mr. Jaimes claims that he saw Mr. Siler grab the handle of the floor
jack. See Def.’s Facts ¶¶ 81–82.
4

Mr. Jaimes claims that he saw Mr. Siler grab a plastic bucket and try to throw it
at Officer Torres. See Def.’s Facts ¶¶ 102–03. Mr. Salinas also claims to have seen
Mr. Siler make throwing motion toward Officer Torres. Def.’s Facts ¶ 104.
5

Officer Torres’s service weapon was capable of firing seven times in under two
seconds. See Def.’s Facts ¶ 116.
6

6

trajectory, see Pls.’ Facts ¶ 36; Def.’s Facts ¶ 113. There was approximately ten to
twelve feet between Officer Torres and Mr. Siler at the time of the shooting. Def.’s
Facts ¶ 97; see Exhibit E to Torres Decl., ECF No. 48-5 (photograph depicting frontdriver side of SUV). Mr. Siler died from the gunshot wounds. Def.’s Facts ¶ 117.
II.

Procedural Background
On September 28, 2017, Mr. Siler’s minor daughter and estate filed this

action under 42 U.S.C. § 1983 against the City of Kenosha and Officer Torres. See
Federal Complaint, ECF No. 1. The matter was randomly assigned to this Court,
and all parties consented to magistrate judge jurisdiction. See Consent to Proceed
Before a Magistrate Judge, ECF Nos. 7, 8 (citing 28 U.S.C. § 636(c) and Fed. R. Civ.
P. 73(b)). The plaintiffs claim that Officer Torres used excessive force against Mr.
Siler and deprived Mr. Siler’s daughter of the love, comfort, society, and
companionship of her father. Compl. ¶¶ 431–37. The plaintiffs also claim that the
excessive force occurred as a direct result of the City’s unconstitutional policies.
Compl. ¶¶ 442–59. However, the claims against the City have been bifurcated for
discovery and trial. See Minute Sheet for Telephonic Motion Hearing, ECF No. 27.
On November 20, 2018, Officer Torres filed a motion for summary judgment
on the plaintiffs’ excessive-force claim. See Defendant Paul Torres’ Summary
Judgment Motion, ECF No. 45. That Motion is now fully briefed and ready for
disposition. See Defendant Paul Torres’ Brief in Support, ECF No. 47; Plaintiffs’
Memorandum of Law in Opposition to Summary Judgment Motion, ECF No. 53;
Defendant Paul Torres’ Reply Brief, ECF No. 63.

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III.

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). “Material facts” are those that, under the
applicable substantive law, “might affect the outcome of the suit.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is
“genuine” “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id.
A moving party “is ‘entitled to a judgment as a matter of law’” when “the
nonmoving party has failed to make a sufficient showing on an essential element of
[its] case with respect to which [it] has the burden of proof.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Still,
a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion,
and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of
material fact.
Id. (internal quotation marks omitted).
To determine whether a genuine issue of material fact exists, the court must
review the record, construing all facts in the light most favorable to the nonmoving
party and drawing all reasonable inferences in that party’s favor. See Heft v. Moore,
351 F.3d 278, 282 (7th Cir. 2003) (citing Liberty Lobby, 477 U.S. at 255). “However,
[the court’s] favor toward the nonmoving party does not extend to drawing
inferences that are supported by only speculation or conjecture.” Fitzgerald v.
8

Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting Harper v. C.R. Eng., Inc., 687
F.3d 297, 306 (7th Cir. 2012)). That is, “to survive summary judgment, the nonmoving party must establish some genuine issue for trial ‘such that a reasonable
jury could return a verdict’ in her favor.” Fitzgerald, 707 F.3d at 730 (quoting
Makowski v. SmithAmundsen LLC, 662 F.3d 818, 822 (7th Cir. 2011)).
IV.

Discussion
Officer Torres seeks summary judgment, arguing that he did not use

excessive force against Mr. Siler and that he is otherwise entitled to qualified
immunity from any such liability.
A. Excessive force
The plaintiffs claim that Officer Torres, while acting under color of state law,
violated Mr. Siler’s constitutional rights when he shot and killed Siler.
1. Legal standards
A plaintiff is entitled to relief under 42 U.S.C. § 1983 only if he demonstrates
that “(1) he was deprived of a right secured by the Constitution or laws of the
United States; and (2) the deprivation was visited upon him by a person or persons
acting under color of state law.” Buchanan-Moore v. County of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)).
“[A]ll claims that law enforcement officers have used excessive force . . . in
the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”

9

Graham v. Connor, 490 U.S. 386, 395 (1989). “Determining whether the force used
to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires 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 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). Courts
engaging in this balancing test generally consider three factors: (1) “the severity of
the crime at issue”; (2) “whether the suspect poses an immediate threat to the safety
of the officers or others”; and (3) “whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396 (citing Garner, 471
U.S. at 8–9).
The reasonableness inquiry is an objective one, examining “whether the
officer’s actions are objectively reasonable in light of the totality of the facts and
circumstances confronting him . . . , without regard for consideration of the officer’s
subjective intent or motivations.” Estate of Williams v. Ind. State Police Dep’t, 797
F.3d 468, 473 (7th Cir. 2015) (citing Graham, 490 U.S. at 397; Miller v. Gonzalez,
761 F.3d 822, 828–29 (7th Cir. 2014); Fitzgerald, 707 F.3d at 733). As such, “[t]he
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)). This
calculus “must embody allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and

10

rapidly evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396–97.
“It is well established that ‘[a] police officer’s use of deadly force constitutes a
seizure within the meaning of the Fourth Amendment.’” McKinney v. Duplain, 463
F.3d 679, 684 (7th Cir. 2006) (quoting Scott v. Edinburg, 346 F.3d 752, 755 (7th Cir.
2003)). “[I]t is reasonable for a law enforcement officer to use deadly force if an
objectively reasonable officer in the same circumstances would conclude that the
suspect posed a threat of death or serious physical injury to the officer or to others.”
Williams, 797 F.3d at 473 (quoting Marion v. City of Corydon, Ind., 559 F.3d 700,
705 (7th Cir. 2009)). “Thus, ‘when an officer believes that a suspect’s actions places
him, his partner, or those in the immediate vicinity in imminent danger of death or
serious bodily injury, the officer can reasonably exercise the use of deadly force.’”
McKinney, 463 F.3d at 684 (quoting Sherrod v. Berry, 856 F.2d 802, 805 (7th Cir.
1988)).
2. Legal analysis
Officer Torres argues that the undisputed facts show that his use of deadly
force was objectively reasonable under the Fourth Amendment. The Court
respectfully disagrees. Viewing the facts in the light most favorable to the plaintiffs,
a reasonable jury could find that it was unreasonable for Officer Torres to conclude
that Mr. Siler posed a threat of death or serious physical injury at the time he was
shot.

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The encounter started when Officer Torres attempted to conduct a traffic stop
of Mr. Siler, believing that he had committed a violent felony—strangulation and
suffocation—and had taken the vehicle without consent. Mr. Siler did not stop when
Officer Torres activated his emergency lights or sirens. Instead, Mr. Siler fled at a
high rate of speed, driving recklessly and committing several traffic violations. The
high-speed chase ended when Mr. Siler lost control of his vehicle, sideswiped
another car, and crashed. But Mr. Siler still did not stop. He fled on foot, ignoring
Officer Torres’s repeated commands to “stop” and “get on the ground.” Mr. Siler
then attempted to lose Officer Torres by hiding inside an auto body repair shop
occupied by two innocent bystanders (Mr. Salinas and Mr. Jaimes). Officer Torres
entered the shop’s open garage, drew his gun, and ordered Mr. Siler out from a back
room. Mr. Siler eventually exited his hiding spot and ran alongside a parked SUV
toward the open garage door, but he was cut off by Officer Torres. Up until this
point, Mr. Siler’s strategy was unequivocal: avoid apprehension.
Officer Torres maintains that Mr. Siler’s tactics changed from flight to fight
once he was corned inside the shop. Officer Torres and Mr. Siler were separated by
an SUV, with Officer Torres on the driver side and Mr. Siler on the passenger side
(and closer to the open garage door). Mr. Siler, with a gun pointed directly at him at
close range, refused Officer Torres’s commands to get on the ground. He yelled at
the officer, “fuck you,” “no,” and “shoot me.” Mr. Siler then reached down and
attempted to grab the metal handle of a floor jack. Officer Torres ordered Mr. Siler
to “drop it” and “get on the ground.” Mr. Siler reached down again as if he was

12

attempting to grab something, but his hands were obscured from Officer Torres’s
view by the hood of the SUV. According to Officer Torres, Mr. Siler then made a
sudden, aggressive move to his right toward the front-passenger corner of the SUV
and away from the open garage door. Officer Torres maintains that he perceived
Mr. Siler—who was significantly bigger and younger than Officer Torres—to be in
“attack mode,” so he fired his gun at Siler while he was about ten to twelve feet
away.
The plaintiffs argue that it was unreasonable for Officer Torres to assume
that Mr. Siler posed an imminent threat when he began firing his gun. According to
the plaintiffs, Officer Torres had no reason to believe that Mr. Siler was armed with
a pipe or any other weapon, as Torres admitted he couldn’t see Siler’s hands and
Torres never saw Siler threaten him with a weapon. The plaintiffs similarly
maintain that Officer Torres speculated that Mr. Siler’s single step to his right
signaled that he was on his way around the SUV to attack Torres.
The Court finds that the plaintiffs have presented sufficient evidence to
create a genuine issue of material fact as to the objective reasonableness of Officer
Torres’s belief that Mr. Siler posed an immediate threat at the time he was shot.
Officer Torres shot Mr. Siler while he was still on the opposite side of the SUV and
before he had crossed the threshold of the vehicle’s front bumper. It is undisputed
that Mr. Siler refused Officer Torres’s commands to get on the ground. But prior to
taking a step toward the front of the SUV, all of Mr. Siler’s actions were consistent
with flight, not a physical attack. Mr. Siler had not threatened Officer Torres,

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Officer Torres did not see Mr. Siler armed with a weapon, and Mr. Siler had not
made any movements toward Officer Torres. Accordingly, Mr. Siler’s movement,
and the inferences to be drawn therefrom, is critical to whether a reasonable officer
in Torres’s shoes would perceive Siler as posing a threat of death or serious physical
injury such that the use of deadly force was objectively reasonable. The nature and
characterization of that movement is genuinely disputed.
The disputed nature of Mr. Siler’s movement toward the front of the SUV
distinguishes this case from Clayton7 and Romero,8 two out-of-circuit cases finding
no constitutional violation in arguably (according to Officer Torres) similar factual
circumstances. In both of those cases, an officer used deadly force against an
individual suspected of committing a felony after the suspect refused the officer’s
orders and continued to move toward the officer despite repeated commands to stop.
During the entire encounter at issue here, however, Mr. Siler took only one step
that could be perceived as “toward” Officer Torres. Whether that step was sufficient
to create a reasonable threat given the totality of the circumstances facing Officer
Torres is a factual issue that must be resolved by the ultimate trier of fact, not the
Court at the summary-judgment stage.9
Clayton v. Columbia Cas. Co., Civil Action No. 11-845 Section I, 2012 U.S. Dist.
LEXIS 164072 (M.D. La. Nov. 16, 2012).
7

8

Romero v. City of Grapevine, 888 F.3d 170 (5th Cir. 2018).

It bears noting that this is an exceptionally close call. The Court’s view is that,
based on the totality of the circumstances, Officer Torres acted reasonably in
shooting Mr. Siler. But the Court cannot rule out the possibility that a reasonable
jury might take the contrary view.
9

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B. Qualified immunity
“Qualified immunity shields a government official from liability for civil
damages unless his or her conduct violates a clearly established principle or
constitutional right of which a reasonable person would have known at the time.”
Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012) (citing Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2011)).
The plaintiff has the burden of defeating the qualified-immunity defense once it is
raised. Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017) (citing Rabin v. Flynn,
725 F.3d 628, 632 (7th Cir. 2013)).
To do so, the plaintiff must show (1) that the defendant violated a
constitutional right, when construing the facts in the light most
favorable to the plaintiff, and (2) that the right was clearly established
at the time of the alleged violation, such that it would have been clear
to a reasonable actor that her conduct was unlawful.
Archer, 870 F.3d at 613 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “A
failure to show either is fatal for the plaintiff’s case.” Archer, 870 F.3d at 613 (citing
Pearson, 555 U.S. at 236).
“The first question is one of law.” Gonzalez v. City of Elgin, 578 F.3d 526, 540
(7th Cir. 2009). The second requires the plaintiff to show “that there is ‘a clearly
analogous case establishing a right to be free from the specific conduct at issue’ or
that ‘the conduct is so egregious that no reasonable person could have believed that
it would not violate clearly established rights.’” Id. (quoting Smith v. City of
Chicago, 242 F.3d 737, 742 (7th Cir. 2001)). “When the qualified immunity inquiry
cannot be disentangled from disputed facts, the issue cannot be resolved without a

15

trial.” Gonzalez, 578 F.3d at 540 (citing Clash v. Beatty, 77 F.3d 1045, 1048 (7th Cir.
1996)).
1. Waiver
The plaintiffs first argue that Officer Torres has waived his claim to qualified
immunity for summary-judgment purposes because his discussion of the issue was
perfunctory and undeveloped. See Pls.’ Mem. 27–28. The Court disagrees. The
inevitably of Officer Torres claiming qualified immunity has been apparent from the
very beginning of this case. See Defendants’ Answer, Affirmative Defenses and Jury
Demand 91, ECF No. 11; see also Minute Sheet for Telephonic Rule 16 Scheduling
Conference, ECF No. 16; Minute Sheet for Telephonic Motion Hearing, ECF No. 24.
Indeed, in exchange for bifurcating the claims against the City, the defendants
agreed to delay seeking appellate review of an unfavorable qualified-immunity
ruling. See Ct. Mins., ECF No. 24 at 2–3. Once raised, the burden shifted to the
plaintiffs to defeat the qualified-immunity defense.
Moreover, Officer Torres accurately recited the qualified-immunity standard
in his summary-judgment brief and provided a sufficient factual basis to support its
applicability here. See Davis v. Carter, 452 F.3d 686, 691–92 (7th Cir. 2006) (finding
no waiver despite the plaintiff not citing relevant legal authority because “she
provided well-reasoned factual arguments supported by citations to the record”).
That discussion clearly provided the plaintiffs adequate notice and caused them no
prejudice, as the plaintiffs devoted more than eight pages of their summaryjudgment response to Officer Torres’s qualified-immunity argument. See Hernandez

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v. Cook County Sheriff’s Office, 634 F.3d 906, 913–14 (7th Cir. 2011) (finding no
waiver where the defendants raised the qualified-immunity defense “at every
significant stage of . . . litigation” and the plaintiffs devoted four pages of their
summary-judgment response to discussing the defendants’ allegedly deficient
argument”). There simply was no waiver.
2. Violation of a constitutional right
With respect to the first prong of the qualified-immunity analysis, the factual
dispute concerning Mr. Siler’s movement toward the front of the SUV precludes
finding that the plaintiffs have failed to assert a constitutional violation. Mr. Siler
did not threaten Officer Torres, Officer Torres did not observe Mr. Siler with a
weapon, and Mr. Siler had not made any other movements toward Officer Torres.
Accordingly, when viewed in the light most favorable to the plaintiffs, the facts at
this stage do not establish that Officer Torres did not violate Mr. Siler’s right to be
free from deadly force.
3. Clearly established law
Turning to the second prong, the plaintiffs first argue that the dispute over
whether Officer Torres reasonably believed that Mr. Siler was moving toward him
to attack precludes a determination of whether Siler’s constitutional rights were
clearly established when Torres shot and killed him. See Pls.’ Mem. 28–29 (citing
Estate of Heenan v. City of Madison, 111 F. Supp. 3d 929, 948 (W.D. Wis. 2015)).
The plaintiffs rely on the general principles of law set forth by the Supreme Court
in Tennessee v. Garner and Graham v. Connor: “that a person has a constitutional

17

right not to be shot unless an officer reasonably believes that he poses a threat to
the officer or someone else,” Weinmann v. McClone, 787 F.3d 444, 450 (7th Cir.
2015). However, “the Supreme Court has cautioned lower courts ‘not to define
clearly established law at a high level of generality.’” Mason-Funk v. City of Neenah,
895 F.3d 504, 508 (7th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742
(2011)). The Supreme Court also “has made clear that ‘Garner and Graham do not
by themselves create clearly established law outside an obvious case.’” Mason-Funk,
895 F.3d at 508 (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)).
The plaintiffs argue that this is an obvious case because “[w]hen Torres
started shooting, all [Siler] did was take a step to the right while still on the other
side of an SUV that Torres was using for cover.” Pls.’ Mem. 30. This argument
ignores the totality of circumstances facing Officer Torres. It is undisputed that at
the time of the shooting: (1) Officer Torres believed that Mr. Siler was wanted for
strangulation and suffocation; (2) Mr. Siler recklessly fled from Officer Torres’s
attempted traffic stop; (3) Mr. Siler repeatedly disregarded Officer Torres’s lawful
commands during the foot chase and while inside the auto body shop; (4) Mr. Siler
bent down and appeared to be grabbing something from the shop’s floor; and (5) Mr.
Siler took a step toward the front of the SUV and away from the open garage door.
Given those facts, the Court cannot say that it was obvious that Mr. Siler did not
present an imminent danger when Officer Torres used deadly force; indeed, denying
Officer Torres summary judgment on the plaintiffs’ excessive-force claim was a very
close call. Accordingly, to defeat qualified immunity in this case, the plaintiffs must

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point to a more “particularized” clearly established right. See Thompson v. Cope,
900 F.3d 414, 421–22 (7th Cir. 2018).
The plaintiffs have presented three cases that, in their view, provided Officer
Torres sufficient notice that his decision to use deadly force against Mr. Siler was
unreasonable. However, those cases are not sufficiently analogous to govern the
facts and circumstances that confronted Officer Torres.
Tennessee v. Garner
At about 10:45 p.m. on October 3, 1974, officers from the Memphis Police
Department were dispatched to a residential burglary in progress. Garner, 471 U.S.
at 3. After arriving at the scene, one of the officers cornered the fleeing suspect
against a backyard fence. Id. The officer had no articulable basis to believe the
suspect was armed and observed the suspect to be young (about 17 or 18) and slight
of build (about 5′5″ or 5′7″ tall). Id. at 3–4. When the suspect ignored the officer’s
commands to halt and started to climb over the fence to escape, the officer shot him
in the back of the head. Id. at 4. The Supreme Court determined that the officer’s
use of deadly force in those circumstances was objectively unreasonable because the
officer “did not have probable cause to believe that [the suspect] . . . posed any
physical danger to himself or others.” Id. at 21.
Garner is plainly inapposite. Here, Officer Torres had reason to believe that
Mr. Siler had committed a violent felony. He also had an articulable basis for
believing that Mr. Siler was attempting to arm himself with whatever he could find
on the repair shop’s floor. And most importantly, Officer Torres did not shoot Mr.

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Siler in the back while he was attempting to flee. Rather, Mr. Siler was shot when
he moved toward the front of the SUV and away from his means of escape, the open
garage door.
McKinney v. Duplain
At approximately 3:26 a.m. on a Saturday night near the campus of Ball
State University, a woman called 911 to report a large man banging on her backpatio door and attempting to enter her home. See McKinney, 463 F.3d at 680–81.
Officers from the Ball State Police Department responded to the call, and one of the
officers encountered the suspect in the woman’s backyard standing under a tree
about ten to twenty feet away. Id. at 681–82. According to the officer and a few
neighbors who witnessed the incident, the suspect ignored the officer’s commands to
get on the ground, turned toward the officer, and suddenly charged. Id. at 682.
When the suspect came within a few feet of him, the officer fired his service weapon
four times, killing the suspect.
The suspect’s estate filed an excessive-force case against the officer, who
moved for summary judgment based on qualified immunity. Id. at 680. The district
court denied the motion, finding that genuine issues of material fact existed,
including whether the suspect had charged at the officer. Id. at 683. Based on
expert testimony, the estate had argued that the suspect was shot twice from the
back-left side while he was standing still and two more times while he was falling to
the ground. On appeal, the Seventh Circuit dismissed the case for lack of
jurisdiction. Id. at 693. The court determined that Supreme Court precedent

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precluded review of “the district court’s conclusion that a genuine factual dispute
exists.” Id. (relying on Johnson v. Jones, 515 U.S. 304 (1995)).
Because the officer’s appeal was dismissed for lack of jurisdiction, and not on
the merits of the qualified-immunity issue, McKinney did not clearly establish any
constitutional rights. And even if it did, the facts of this case are materially
dissimilar. The plaintiffs have not offered any evidence to suggest that Mr. Siler
was shot while standing still, in the back, or while falling to the ground.10 Also, in
contrast to the officer in McKinney, at the time of the shooting, Officer Torres was
aware that Mr. Siler had engaged in violent and reckless behavior.
Ellis v. Wynalda
At approximately 7:00 a.m. on September 7, 1986, an individual broke into an
Indianapolis pharmacy and stole drugs and money. See Ellis v. Wynalda, 999 F.2d
243, 245 (7th Cir. 1993). An officer responded to the tripped burglar alarm and
observed a suspect walking out the back door of a vacant store adjacent to the
pharmacy. The suspect kept walking as the officer approached and ordered him to
stop. When the officer told him to stop a second time, the suspect turned, lofted his
jacket and mesh beg toward the officer, and ran away. The officer then shot the
fleeing suspect once in the lower back.
The district court granted the officer qualified immunity from the suspect’s
excessive-force claim, but the Seventh Circuit reversed. Id. The court reasoned,
The medical examiner merely surmised that Mr. Siler “may have been falling,
leaning, or running at the time of the three guns shots to the chest,” given their
downward trajectory. See Declaration of Brian Peterson ¶ 12, ECF No. 59.
10

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“When an officer faces a situation in which he could justifiably shoot, he does not
retain the right to shoot at any time thereafter with impunity.” Id. at 247. Thus,
while the officer may have been justified in shooting the suspect as he tossed the
bag or just after the bag hit him, it was unreasonable to use deadly force after the
bag had landed on the ground and the suspect had started to run away. At that
moment, the officer had no reason to believe that the suspect “presented a threat of
serious harm to the officer or others.” Id. at 247.
According to the plaintiffs, Ellis clearly established that Officer Torres
violated Mr. Siler’s constitutional rights when he fired three fatal shots to Siler’s
chest after he was already falling backwards to the ground. Pls.’ Mem. 33–34. The
plaintiffs, however, have no evidence to support this view of the facts. The medical
examiner’s opinion that Mr. Siler may have been falling at the time he was shot in
the chest does not establish that Siler was indeed falling backwards. Likewise, the
plaintiffs’ expert testimony that the shots to the chest were the fatal shots is of little
value given the lack of evidence regarding the order of the shots.
*****
Collectively, Garner, McKinney, and Ellis stand for the unremarkable
proposition that an officer cannot, consistent with the Fourth Amendment, use
deadly force against a suspect who is standing still or fleeing if the officer has no
reason to believe that the suspect poses an imminent danger. In this case, even
when viewed in the light most favorable to the plaintiffs, the facts do not establish
that Mr. Siler was standing still or fleeing at the time he was shot. Rather, the

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undisputed facts demonstrate that Mr. Siler had taken a step toward the front of
the SUV (and away from an open garage door) after refusing Officer Torres’s
commands to get on the ground and after bending down and reaching for something.
It was not clearly established in March 2015 that an officer’s use of deadly force
under similar circumstances was objectively unreasonable. See Thompson, 900 F.3d
at 421–23 (explaining that the clearly established right should not be defined too
broadly or narrowly, “but just right”) (citation omitted).
V.

Conclusion
For all the foregoing reasons, the Court finds that Officer Torres is entitled to

qualified immunity from the plaintiffs’ excessive-force claim. Officer Torres’s motion
for summary judgment will therefore be granted.
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant Paul
Torres’ Summary Judgment Motion, ECF No. 45, is GRANTED.
Dated at Milwaukee, Wisconsin, this 19th day of February, 2019.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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