Perez et al v. Guetschow et al

Filing 83

ORDER signed by Chief Judge Pamela Pepper on 3/11/2025. 41 Intervenor Defendant City of Kenosha's motion for summary judgment GRANTED. Defendant Guetschow not entitled to indemnification by City of Kenosha. 54 Defendants' motion for sum mary judgment as to Monell claim against Kenosha Unified School District GRANTED. 54 Defendants' motion for summary judgment as to excessive force claim against defendant Guetschow DENIED. Defendant Kenosha Unified School District and Intervenor Defendant City of Kenosha DISMISSED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JERREL PEREZ and JANE DOE,
Plaintiffs,
Case No. 23-cv-153-pp
v.
SHAWN GUETSCHOW
and KENOSHA UNIFIED SCHOOL DISTRICT,
Defendants,
and
CITY OF KENOSHA,
Intervenor Defendant.

ORDER GRANTING CITY OF KENOSHA’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 41) AND GRANTING IN PART AND DENYING IN
PART DEFENDANTS GUETSCHOW AND KENOSHA UNIFIED SCHOOL
DISTRICT’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 54)

On February 6, 2023, the plaintiffs—a father and daughter—filed a
complaint alleging that Shawn Guetschow, an off-duty police officer employed
by the Kenosha Unified School District (KUSD), used excessive force on plaintiff
Jane Doe while intervening to stop a fight between Doe and another student.
Dkt. No. 1. The plaintiffs also brought claims under Monell v. Dep’t of Soc.
Serv’s, 436 U.S. 658 (1978), against both KUSD and the city of Kenosha,
Wisconsin for failure to adequately supervise, discipline or train their
employees, including Guetschow, on the use of force. Id. at ¶¶88–100.
The City of Kenosha moved to dismiss the Monell claim, dkt. no. 12,
which the plaintiffs did not oppose, dkt. no. 18, and the court granted the
motion, dkt. no. 26, dismissing the city from the case. The city then filed an
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intervenor complaint seeking a declaratory judgment that Guetschow was
acting outside the scope of his employment with the city during the events of
described in the complaint and that it has no obligation to indemnify
Guetschow. Dkt. No. 33.
The City of Kenosha moved for summary judgment on its claim. Dkt. No.
41. The plaintiffs since have filed a letter stating that they do not oppose the
city’s motion. Dkt. No. 76. Defendants Guetschow and KUSD filed a motion for
summary judgment on the excessive force claim against Guetschow and the
remaining Monell claim against KUSD. Dkt. No. 54. That motion is fully
briefed. Dkt. Nos. 55, 71, 79. The court will grant the city’s motion and will
grant in part and deny in part Guetschow and KUSD’s motion.
I.

Background
The following facts are undisputed unless otherwise noted.
A.

Guetschow’s Employment with KUSD and the City of Kenosha

The city of Kenosha employed Guetschow as a police officer for
approximately six years. Dkt. No. 72 at ¶37; Dkt. No. 75 at ¶8. From Fall 2019
to March 2022, Guetschow also worked part-time for KUSD as an off-duty
officer. Dkt. No. 72 at ¶38. Only KUSD high schools (not middle schools)
contracted with the Kenosha Police Department have on-duty officers assigned
to their schools. Id. at ¶132. The Kenosha Police Department approved
Guetschow’s secondary employment with KUSD. Dkt. No. 75 at ¶41. KUSD
compensated Guetschow for the time he worked on campus as an off-duty
officer. Id. at ¶48. While working as an off-duty officer, Guetschow was subject
to KUSD policies and procedures, including KUSD’s policy governing physical
restraint in response to student behavior. Id. at ¶¶51–52.

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The parties agree that Guetschow had received training in the use of
force against “vulnerable populations,” including children. Dkt. No. 72 at ¶42.
The parties dispute whether Guetschow received any formal training from
KUSD regarding the off-duty officer role. Id. at ¶44. But Guetschow had
intervened in approximately two other student fights while employed with
KUSD and during his law enforcement career, had experience using the “threepoint ground stabilization technique” to restrain juveniles involved in fights. Id.
at ¶¶123, 130.
B.

Events Leading Up to the Fight

In March 2022, plaintiff Jane Doe was a sixth-grade student at Lincoln
Middle School in Kenosha. Dkt. No. 72 at ¶1. After school on March 1, 2022,
Doe engaged in a fight with LM, another student at Lincoln Middle School, and
Doe’s friend. Id. at ¶¶2–3, 8. Although Doe testified at her January 15, 2024
deposition that the fight with LM initially was a “play fight,” Doe testified that it
eventually “turned to serious” when somebody hit someone else too hard,
making the recipient of the “hit” angry. Id. at ¶¶13–15. (Doe testified that she
did not remember who hit whom too hard. Id. at ¶15.) The fight between Doe
and LM ended and both went home. Id. at ¶16. The next day—March 2—Doe
was pulled out of class and asked to write a statement regarding the fight. Id.
at ¶20. Doe then was suspended for the rest of the day and sent home. Id. at
¶21.
A few days later—March 4, 2022—while Doe was sitting in the
lunchroom with other friends, LM and her friends approached Doe’s table and
spoke to Doe. Id. at ¶¶22–23. Doe testified at the deposition that she did not
remember what LM said. Id. at ¶23. LM then returned to her own table and Doe
continued speaking with her friends at her table. Id. at ¶¶24–25. LM later
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returned to Doe’s table; the defendants assert that LM asked Doe if Doe would
“fight her,” while the plaintiffs assert that LM “repeatedly antagonized Jane Doe
to fight her even though Jane Doe told her no” and that when Doe said no, “LM
began telling Jane Doe to push her.” Id. at ¶26. (citing Dkt. No. 65-1 at 10, Tr.
p. 34, lines 11-22). The parties agree that Doe initially refused to fight with LM
because Doe did not want to get in trouble, but LM continued to ask Doe if she
wanted to fight and Doe said she did not. Id. at ¶¶27–28. The defendants assert
that LM kept telling Doe to push her, so Doe did push her; the plaintiffs assert
that Doe “softly pushed” LM because she was “afraid LM would not stop asking
Jane Doe to push her and that she was scared LM was going to push Jane
Doe.” Id. at ¶¶29–30 (citing Dkt. No. 65-1 at 10, Tr. p. 36, lines 17-25, Tr. p. 37,
lines 1-13, Tr. p. 38, lines 12-14).
Two adults intervened and attempted to “pull” the two “off each other,” or
“separate” them, but the students continued to try to hit each other. Id. at
¶¶33–35. One of the adults was Guetschow. Id. at ¶36. Guetschow was at the
school in his capacity as an off-duty officer for KUSD, not as a city of Kenosha
police officer. Dkt. No. 75 at ¶8. Guetschow was assigned to supervise the
lunchroom at the time of the incident. Dkt. No. 72 at ¶48. Guetschow received
a call on his radio from a school counselor, Erin Waynes, asking if anyone was
coming to the cafeteria; Guetschow responded that he was on his way. Id. at
¶¶51–52. When he arrived, Waynes advised Guetschow that she was concerned
that two students were going to fight. Id. at ¶53. The parties dispute what
happened next.
C.

The Plaintiffs’ Version of Events

The plaintiffs do not dispute that Waynes and Guetschow watched as LM
approached Doe. Dkt. No. 80 at ¶11. But they assert that security camera
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footage shows that Guetschow had time to intervene before the fight began.
Dkt. No. 72 at ¶¶56, 60. The plaintiffs agree that LM began to punch at Doe
and that the two students began “flailing their arms.” Dkt. No. 80 at ¶13. But
they dispute that the video shows a “very violent” fight. Dkt. No. 72 at ¶¶57,
65. The plaintiffs assert that during his intervention, Gretschow “grabbed Jane
Doe around the neck at the base of her skull, and, with his hand around the
back of her neck, pushed her face into the cafeteria floor causing her body to
fall into a semi-prone position . . . .” Dkt. No. 80 at ¶8. They contend that as
Guetschow was grabbing Doe, he tripped over LM’s feet and fell backward into
the cafeteria table, pulling Doe with him. Id. at ¶16. They argue that the video
footage shows that Doe was not resisting or attempting to prevent Guetschow
from grabbing her. Id. at ¶17. The plaintiffs argue that Gretschow was “looking
down at Jane Doe as he gripped the back of her neck at the base of her head
and slammed her head into the cafeteria floor.” Id. at ¶18. The plaintiffs assert
that Guetschow—still gripping Jane Doe’s head and neck—pushed his knee
onto Doe’s neck. Id. at ¶19. They assert that “[b]efore lifting Jane Doe to her
fee, as she was still handcuffed, Guetschow forcefully pushed his knee into the
back of Jane Doe’s neck one last time.” Id. at ¶21.
The plaintiffs explained that they retained Police Chief Scott Hilden to
review the case. Id. at ¶24. They say that Hilden reviewed Guetschow’s actions
“both in the context of a police officer employed by a police department and as
a police officer employed by the school district.” Id. at ¶31. They recount that
Hilden concluded Gutschow’s use of force “was not reasonable and not
necessary” and it “deviated from widely accepted police practices, standards,
training, and policies.” Id. at ¶32. The plaintiffs state that Hilden opined that
Guetschow had “obtained control of Jane [D]oe when he had his right [hand] at
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the base of her skull and his left hand applying a wrist lock . . . .” Id. at ¶34.
According to the plaintiffs, Hilden opined that at that point, Jane Doe “no
longer posed a threat to anyone, including the officer, and no additional force
was reasonable or necessary.” Id. at ¶35. The plaintiffs recount that Hilden
stated that there was a “high risk of severe injury” to Doe based on the size
differential between the 215-pound Guetschow and twelve-year-old Doe. Id. at
¶37. The plaintiffs argue that Hilden opined that there was no threat of
continued resistance when Guetschow placed his knee on Doe’s neck. Id. at
¶¶48, 52.
D.

The Defendants’ Version of Events

The defendants contend that the fight broke out as Guetschow was
“receiving information from MS. Waynes that the two girls were going to fight . .
. .” Dkt. No. 72 at ¶54. They maintain that at the time Waynes told him about
the fight, Guetschow “had no idea which students were discussing a possible
fight or who was going to fight.” Id. at ¶55. They assert that “[i]n the time
between when Officer Guetschow received the information about a possible
fight and when the fight actually started there was no opportunity for Officer
Guetschow to give the students verbal commands not to fight.” Id. at ¶56. The
defendants argue that Guetschow observed a “very violent” fight between the
two students and that he “could tell that Jane Doe and LM both had experience
with physical altercations due to their lack of hesitation or care for one another
or anyone around them.” Id. at ¶¶57–58. The defendants state that not only did
Guetschow have no opportunity to give the students a verbal command, but
that “in his experience, [he] felt that an attempt at verbal commands would not
have been effective.” Id. at ¶60. According to the defendants, Guetschow
“thought that if he did not act immediately to stop the fight that someone could
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have gotten seriously hurt,” and that he was “trying to get control of Jane Doe
as quickly as possible because he was worried one or more students would try
to jump into the fight.” Id. at ¶¶64, 67.
The defendants maintain that while Guetschow was trying to restrain
Jane Doe, “she was pulling away and trying to reengage with the other
student.” Id. at ¶69. They argue that as Doe allegedly was resisting, both Doe
and Guetschow “fell and [Guetschow] fell backwards hitting his head against a
cafeteria table.” Id. at ¶70. They assert that when Guetschow “felt pain in the
back of his head he initially thought he was punched by one of the two
students.” Id. at ¶71. The defendants say that there were other school workers
who saw this. Id. at ¶¶72-74.
The defendants say that Guetschow then put Jane Doe on her stomach,
but that “she pushed her body onto her right side.” Id. at ¶78. They say that at
some point, Guetschow “was trying to get Jane Doe into a ‘belly-style prone
position,’ but she resisted his attempt to turn her over on her stomach by not
allowing him to roll her torso over.” Id. at ¶79. The defendants say that Doe was
trying to “turn her head in the direction where the other student was,” and that
Guetschow “placed his hand on the side of Jane Doe’s head to try and stabilize
her.” Id. at ¶¶81–82. They say, however, that Guetschow recalls “the resistive
tension from Jane Doe when she was pushing against him trying to escape
from his hold on her.” Id. at ¶84. The defendants say that Guetschow then put
Jane Doe onto her stomach so that he could apply handcuffs. Id. at ¶86. The
defendants reiterate that several KUSD employees witnessed the fight and saw
that Doe was resisting Guetschow’s attempts to restrain her. Id. at ¶¶136–137,
145. According to the defendants, Guetschow did not use a chokehold on Doe
or recall Doe stating that she could not breathe. Id. at ¶¶88-89. They say,
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however, that even if Doe had said that she could not breath, “[Guetschow]
could not hear it over the loud commotion in the cafeteria.” Id. at ¶90. The
defendants say that Guetschow could ‘feel Jane Doe breathing and could see
that she was conscious the entire time they were on the ground together.” Id.
at ¶91.
The defendants contend that “[a]t one point during his attempted
application of the three-point stabilization technique, Officer Guetschow’s knee
slipped from between Jane Doe’s shoulder blade, as she continued to resist
and twisted her body to her side.” Id. at ¶96. They say that Guetschow realized
this. Id. at ¶97. They assert that as soon as he realized his knee had slipped,
Guetschow “repositioned his knee to the proper position in between her
shoulder blades.” Id. at ¶98. They maintain that Guetschow’s knee was on the
back of Doe’s neck for “a matter of seconds.” Id. at ¶99.
The defendants concede that the plaintiff’s expert, Chief Hilden, opined
that what Guetschow did was not a proper application of the three-point
stabilization technique. Dkt. No. 80 at ¶51. But they emphasize Hilden also
admitted that “had the three-point stabilization technique been applied
correctly, it would have been appropriate in this case.” Id. The defendants say
that once Guetschow had applied handcuffs to Doe, the two stood up and left
the cafeteria. Dkt. No. 72 at ¶105.
E.

Aftermath

The parties do not dispute that according to surveillance video, the
incident lasted a total of forty-four seconds. Id. at ¶107. They agree that
Guetschow did not arrest Doe, draw a weapon, show his badge or otherwise
indicate that he was acting as a police officer. Dkt. No. 75 at ¶108. Guetschow
took Doe to the vice principal’s office, where he removed her handcuffs and Doe
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was instructed to write a statement about the fight. Dkt. No. 72 at ¶¶108–09.
Doe did not tell school administrators she was injured; the plaintiffs argue that
this was because Doe “didn’t know what to do, really.” Id. at ¶110 (citing
McGaver Decl., ¶2, Ex. A, at 61:18-24). Later, two police officers came to the
office to speak with Doe. Id. at ¶112. Doe did not inform the officers she was
injured; the plaintiffs contend that Doe testified she “just wasn’t thinking
about” her pain even though she was in pain at the time. Id. at ¶¶114-115.
The parties agree that Doe was put in a squad car, taken to the police
station and placed in a holding cell. Id. at ¶¶116–17. Doe did not tell anyone at
the station that she was injured. Id. at ¶118. She was picked up from the
station by her aunt. Id. at ¶119. Doe did not inform her aunt that she was
injured; the plaintiffs argue this is because “[i]t didn’t come to [her]. [She] didn’t
know what to say.” Id. at ¶120. The defendants argue that if Doe had been in
pain or injured, she would have sought medical treatment; the plaintiffs
contend that when she “was asked about telling anyone she needed to [g]o to
the doctor,” Doe testified that she “didn’t know how it worked, so [she] didn’t
know if they could do that or not.” Id. at ¶121. The plaintiffs say that Doe did
seek medical attention the same day. Id. Doe was suspended for more than a
week due to her involvement in the fight and ultimately never returned to
Lincoln Middle School. Id. at ¶122.
The parties agree that after the incident, Guetschow was treated by
paramedics and taken by ambulance to the hospital for the injury to the back
of his head. Id. at ¶124. They agree that Guetschow was diagnosed with a
concussion, that he had a severe headache and that he “felt dazed and ‘foggy.”
Id. at ¶125. They do not dispute that Guetschow had a headache for at least
two weeks. Id. at ¶127. They agree that Guetschow took two weeks off work
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after the incident. Id. at ¶128. But the defendants argue this was to recover
from his injuries, while the plaintiffs contend that Guetschow testified it was
for mental health reasons. Id.
II.

Legal 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.” Federal Rule of Civil Procedure 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
10

conjecture.” Fitzgerald v. 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 non-moving 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)).
III.

City of Kenosha’s Motion for Summary Judgment (Dkt. No. 41)
The City of Kenosha argues that it is entitled to a declaratory judgment

that Guetschow was not acting in the scope of his employment as a city police
officer at the time of the events at issue and so the city has no duty to defend
or indemnify him. Dkt. No. 41 at 1. Instead of filing an opposition brief, the
plaintiffs filed a letter addressed to the court, stating that they do not oppose
the city’s motion because Guetschow was acting outside the scope of his
employment with the city. Dkt. No. 76. The plaintiffs stated that they had filed
a response to the city’s proposed findings of fact solely to avoid the appearance
of admitting any “overlapping” disputed proposed facts raised by Guetschow
and KUSD’s motion. Id.
A.

City of Kenosha’s Arguments

The city argues that for it to indemnify Guetschow, he must have acted
within the scope of his employment as a police officer at the time of the
incident. Dkt. No. 42 at 10. The city argues that an officer’s “conduct is not in
the scope of employment in the context of Wis. Stat. §895.46 if it is different
from that which is permitted; far beyond the authorized time or space; or too
little actuated by a purpose to serve the employer.” Id. (citing Martin v.
Milwaukee County, 904 F.3d 544, 553 (7th Cir. 2018)). The city argues that the
officer’s subjective intent and purpose at the time of his actions is “[p]erhaps
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the most essential factor” for the court to consider. Id. at 11 (citing Martin, 904
F.3d at 555).
The city argues that Guetschow’s subjective intent when he intervened in
the fight was “to act as a security provider in furtherance of his employment
with KUSD”. Id. It asserts that Guetschow subsequently turned Doe over to
school staff, released her from handcuffs and left, further demonstrating that
he was not acting as a police officer securing a subject. Id. at 12–13. The city
points to Guetschow’s testimony, in which he stated that he “was off duty” and
that he “wasn’t an officer in that moment or in that capacity.” Id. at 14 (quoting
Dkt. No. 65-2 at 12, Tr. p. 44, lines 1-25). The city argues that Guetschow was
not wearing his police officer uniform or using any police department
equipment (other than his radio), was not receiving any compensation from the
city for the time spent on campus and did not arrest Doe, again reflecting that
he was not acting as a police officer at the time of the incident. Id. at 15.
The city argues that based on the off-duty officer’s job description,
Guetschow was fulfilling the job duties of an off-duty officer for KUSD at the
time of the fight. Id. at 16. It contends that Guetschow’s duties for KUSD
included “responding to dangerous student misconduct” and “addressing the
school’s safety and security concerns,” which the city says he was doing by
intervening in the fight with Doe. Id. The city contends that Guetschow’s
intervention in the fight did not serve the city’s interests in any way and was
outside the authorized time and space of his employment because he was, by
definition, an off-duty officer at the time. Id. at 16–17.
B.

Analysis

The undisputed facts establish that Guetschow was not acting within the
scope of his employment with the city at the time of the events described in the
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complaint. Wisconsin follows the Second Restatement of Agency with respect to
this question. See Olson v. Connerly, 156 Wis. 2d 488 (1990). It uses the
following factors to assess scope of employment:
(1) Conduct of a servant is within the scope of employment if, but
only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and
space limits;
(c) it is actuated, at least in part, by a purpose to serve the
master, and
(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it
is different in kind from that authorized, far beyond the authorized
time or space limits, or too little actuated by a purpose to serve the
master.
Id. at 498 n.10 (citing Restatement (Second) of Agency §228 (1958)). “Much of
the analysis of whether an employee acts within the scope of employment
focuses on the employee’s intent at the time.” Stephenson v. Universal Metrics,
Inc., 247 Wis. 2d 349, 359 (Wis. Ct. App. 2001) (citing Olson, 156 Wis. 2d at
497–501).
Guetschow was not acting as a police officer at the time he intervened in
the altercation between Doe and LM. He was off duty and outside of the
authorized time and space limits of his employment as a police officer. His
actions were not undertaken to serve the city as a police officer; as Guetschow
testified, he was acting to serve KUSD’s purposes in his role as an off-duty
officer for KUSD. Guetschow’s subjective intent was to perform his duties for
KUSD, not the city. The court will grant summary judgment for the city of

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Kenosha because it is undisputed that Guetschow was acting outside the scope
of his employment with the city when he intervened in the altercation.1
C.

Declaratory Judgment

The city’s intervenor complaint seeks a declaratory judgment that
Guetschow is not entitled to indemnification under Wis. Stat. §895.46. Dkt. No.
33 at 5. Section 895.46 of the Wisconsin Statutes states that if a public officer
or employee, acting in his or her official capacity, is sued as an individual, and
the jury finds that the officer or employee was acting within the scope of his or
her employment, the state (or the political subdivision which employees the
officer or employee) will pay the damages. Jackson v. Graves, Case No. 14-cv1206, 2015 WL 5577527, at *4 (E.D. Wis. Sept. 22, 2015) (citing Wis. Stat.
§895.46). Because the court has determined that Guetschow was not acting in
the scope of his employment with the City of Kenosha at the time of the events
in this case, the city has no obligation to indemnify Guetschow under §895.46.
The court will grant the city’s request for a declaratory judgment that
Guetschow is not entitled to indemnification by the city under §895.46.
IV.

Guetschow & KUSD’s Motion for Summary Judgment (Dkt. No. 54)
Guetschow and KUSD moved for summary judgment on the excessive

force claim and the remaining Monell claim. Dkt. No. 54. The defendants argue
that summary judgment is proper because Guetschow’s actions as a school
employee were objectively reasonable, and to the extent that Guetschow was
responding to the fight as a law enforcement officer, he is entitled to qualified

1 The city also argues that even if the court were to find that Guetschow was

acting within the scope of his employment with the city, summary judgment is
appropriate because Guetschow did not commit a constitutional violation and
is entitled to qualified immunity. Dkt. No. 42 at 23. Because the court can
resolve the motion on the scope-of-employment question, the court will not
address the city’s other arguments.
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immunity. Dkt. No. 55 at 2. The defendants also argue that dismissal of the
Monell claim is proper because there is no evidence that Guetschow was not
adequately trained or supervised when performing his duties at KUSD. Id. at
24–25. The plaintiffs have advised the court that they do not oppose the court
granting summary judgment in favor of KUSD on the Monell claim. Dkt. No. 71
at 2.
A.

The Parties’ Arguments

The defendants first argue that in an educational setting, the applicable
standard for assessing whether Guetschow’s actions constituted excessive force
is whether his actions in seeking to maintain order and discipline were
objectively unreasonable. Dkt. No. 55 at 4–5. The defendants argue that, in
contrast, in the context of a law enforcement officer’s use of force in seizing a
citizen, the “reasonableness” of the force used depends on the totality of the
circumstances at the time the officer applied the force. Id. at 5–7. The
defendants assert that Guetschow’s actions were “objectively reasonable” both
under the standard applicable to force used by school employees and under the
standard applicable to law enforcement officers.
The defendants argue that Guetschow’s decision to immediately
intervene to stop the fight was “a reasonable action to prevent disruptive
behavior that could endanger students or staff.” Id. at 7–8 (quoting Crecy v.
Kankakee School District #111, Case No. 15-CV-1014, 2016 WL 10789394, at
*10 (C.D. Ill., June 20, 2016)). The defendants contend that Guetschow
observed a “very violent” fight, that he could tell that the two students had
experience in physical altercations and that he believed the students could be
seriously hurt or even killed if he did not intervene immediately. Id. at 9. They
argue that Guetschow also was aware that other students might try to join the
15

fight. Id. The defendants argue that under these circumstances, it was
objectively reasonable for Guetschow to intervene immediately without first
attempting verbal commands (emphasizing Guetschow’s alleged belief that
such commands would not have been effective). Id.
The defendants assert that the nature and extent of the force Guetschow
used on Doe was reasonable. Id. Reviewing case law, the defendants argue that
it is appropriate and not excessive to use force to stabilize and handcuff a
resisting individual. Id. at 10–12 (citing Williams v. Brooks, 809 F.3d 936 (7th
Cir. 2016); Steinhoff v. Malovrh, Case No. 21-cv-664, 2023 WL 8879954, *1
(W.D. Wis. Dec. 22, 2023)). The defendants emphasize the chaotic nature of the
fight, Guetschow’s allegations that Doe was resisting his attempts to restrain
her, the fall and Guetschow’s head hitting the cafeteria table. Id. at 12–13. The
defendants detail Guetschow’s attempt to apply the three-point stabilization
technique; they concede that he admits that his knee slipped from the proper
position but argue that Guetschow’s knee was on Doe’s neck “for a matter of
seconds,” that it was unintentional and that Guetschow moved his knee as
soon as he realized it was out of position. Id. at 14. The defendants argue that
even if Doe said she couldn’t breathe while being restrained, Guetschow could
not hear her over the commotion in the background at that time. Id. They
emphasize that the entire interaction between Guetschow and Doe lasted only
forty-four seconds. Id. at 14–15.
The defendants also assert that putting Doe in handcuffs was
reasonable, because Doe was in the handcuffs only for the short walk from the
cafeteria to the principal’s office and that Guetschow immediately removed the
cuffs once there. Id. at 15.

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The defendants argue that as an off-duty officer, Guetschow was not
subject to KUSD’s policy regarding restraint and seclusion of students. Id. at
15–16. They concede that KUSD policy does not condone “the use of seclusion
or restraint by district employees when responding to students.” Id. at 15-16.
They argue, however, that that policy
recognizes that it may be necessary for district employees to use
reasonable and appropriate . . . physical restraint when a student’s
behavior presents a clear, present, and imminent risk to the physical
safety of the students or others, and it is the least restrictive
intervention feasible.
Id. at 16 (citing “KUSD police 5471”). The defendants say that this policy
applies only to “covered individuals,” which the defendants argue do not
include law enforcement officers designated by the district to enforce laws, refer
matters to law enforcement and maintain the security and safety of the district.
Id. The defendants argue that to the extent Guetschow was covered by the
policy, a violation of a school policy (or of state law, standing alone) is not a
basis for a claim of a civil rights violation under 42 U.S.C. §1983. Id. at 17
(citing Windle v. City of Marion, Ind., 321 F.3d 658, 662-63 (7th Cir. 2003);
White v. Olig, 56 F.3d 817, 820 (7th Cir. 1995)).
The defendants argue that as a law enforcement officer, Guetschow is
entitled to qualified immunity. Id. at 18. They maintain that to defeat that
affirmative defense, the plaintiff must show that Guetschow violated a clearly
established constitutional or statutory right by intervening in the fight. Id. at
18–19 (quoting Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013)). The
defendants contend that the burden is on the plaintiff to show that “the
violative nature of particular conduct is clearly established. . . in light of the
specific context of the case, not as a broad general proposition.” Id. at 20
(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). And, they argue, even if the
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right was clearly established, Guetschow nonetheless would be entitled to
immunity if it was “objectively reasonable” for him to believe that his actions
were lawful. Id. Relying on Jones v. City of Fort Wayne, Case No. 15-CV-093,
2017 WL 1059015 (N.D. Ind., March 21, 2017), the defendants argue that it is
not clearly established law whether an officer may be allowed to apply knee
pressure to a suspect’s neck while trying to subdue and handcuff the suspect.
Id. at 22–23. They argue that the totality of the circumstances shows that
Guetschow’s actions to subdue Doe and stop the fight were objectively
reasonable such that he is entitled to qualified immunity. Id. at 23–24.
As for the Monell claim, the defendants argue that the plaintiff must
show a pattern of constitutional violations stemming from KUSD’s policies,
rather than a single incident. Id. at 24–25 (citing City of Oklahoma City v.
Tuttle, 471 U.S. 808, 824 (1985)). The defendants argue that there is no
evidence that KUSD acted with deliberate indifference to the constitutional
rights of its students, sufficient to support a failure-to-train theory of liability.
Id. at 26–27. To the extent that the plaintiff alleges KUSD failed to train
Guetschow on the use of force with “school populations,” the defendants argue
that there was no obligation to retrain Guetschow in such a manner when he
already had received adequate training by the Kenosha Police Department on
the use of force in general. Id. at 27–28 (quoting Crecy, 2016 WL 10789394, at
*14). The defendants contend that there also is no evidence of deliberate
indifference regarding KUSD’s supervision of Guetschow. Id. at 29, 32.
The plaintiffs respond that the contours of the use of force on an
individual who is not resisting arrest are clearly established. Dkt. No. 71 at 14.
They argue that an officer cannot continue to use force once the individual is
“subdued and complying with an officer.” Id. at 16 (citing Strand v. Minchuk,
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910 F.3d 909, 915 (7th Cir. 2018)). They assert that kneeling on a prone
individual’s back can “often” constitute excessive force depending on the
amount of force the officer applied. Id. at 17 (citing Abdullahi v. City of
Madison, 423 F. 3d 763, 771 (7th Cir. 2005)). The plaintiffs argue that
chokeholds (including knee to neck chokeholds) are “under most
circumstances, unreasonable.” Id. (quoting Steinhoff, 2023 WL 8879954, at *9).
The plaintiffs contend that the disputed facts regarding Guetschow’s use
of force and whether Doe was resisting prevent resolving the case at summary
judgment. Id. at 18. They point to the video of the altercation, which the
plaintiffs contend shows that Doe was not resisting and that Guetschow used a
chokehold on her. Id. at 19. The plaintiffs argue that their expert’s opinion
supports the contention that continued use of force on a non-resisting
individual is improper. Id. at 19–20. The plaintiffs maintain that there is a
factual dispute regarding whether Guetschow actually was applying the threepoint stabilization technique to subdue Doe, because their expert has opined
that Guetschow’s actions in performing the technique were “completely wrong.”
Id. at 21–22.
The defendants dispute that Guetschow’s actions constituted a
“chokehold.” Dkt. No. 79 at 2. They argue that the video footage of the incident
is unclear and cannot controvert Guetschow’s testimony that he did not intend
to place his knee on Doe’s neck. Id. They say that even if Doe was not actively
resisting Guetschow—a fact the defendants dispute—Guetschow’s actions were
reasonable. Id. at 3. The defendants distinguish the cases the plaintiffs cited,
arguing that in those cases, the defendant officers continued to apply force
after the suspects clearly expressed that they were surrendering. Id. at 3–5.
The defendants argue that here, Doe did not clearly indicate at any point that
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she surrendered, nor did she stop resisting Guetschow. Id. at 5. The
defendants argue that the unlawfulness of the force Guetschow used in this
situation is not clearly established. Id. at 9.
B.

Monell Claim

A plaintiff seeking to survive summary judgment on a Monell failure-totrain or failure-to-supervise claim must present evidence to support that claim,
including evidence demonstrating that “a failure to train or supervise was ‘the
moving force’ behind [the constitutional violation].” Barnes v. City of Centralia,
Ill., 943 F.3d 826, 832 (7th Cir. 2019) (quoting Monell, 436 U.S. at 694). The
plaintiffs abandoned their Monell claim against KUSD in their brief. Dkt. No.
71 at 2. Because the plaintiff has not argued for or presented any evidence of a
failure to train or supervise on the part of KUSD, the court will grant summary
judgment in favor of the defendants on the Monell claim.
C.

Excessive Force Claim
1.

Use of Force

The Fourth Amendment prohibits “unreasonable” seizures, so
“[r]easonableness is always the touchstone of Fourth Amendment analysis.”
County of Los Angeles, Calif. v. Mendez, 581 U.S. 420, 427 (2017) (quoting
Birchfield v. North Dakota, 579 U.S. 438, 477 (2016)). In determining whether
an officer’s force in seizing someone was reasonable, “[t]he operative question
. . . is ‘whether the totality of the circumstances justifie[s] a particular sort of
search or seizure.’” Id. at 427–28 (quoting Tennessee v. Garner, 471 U.S. 1, 8-9
(1985)). “The reasonableness of the use of force is evaluated under an
‘objective’ inquiry that pays ‘careful attention to the facts and circumstances of
each particular case.’” Id. at 428 (quoting Graham v. O’Connor, 490 U.S. 386
(1989)). “In assessing a claim of excessive force, courts ask ‘whether the
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officers’ actions are “objectively reasonable” in light of the facts and
circumstances confronting them.’” Lombardo v. City of St. Louis, Mo., 594 U.S.
464, 466 (2021) (quoting Graham, 490 U.S. at 397).
“Whether an officer has used excessive force depends on ‘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.’” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 6 (2021)
(quoting Graham, 490 U.S. at 396). Courts also consider “the relationship
between the need for the use of force and the amount of force used; the extent
of the plaintiff’s injury; any effort made by the officer to temper or limit the
amount of force; the severity of the security problem at issue; [and] the threat
reasonably perceived by the officer.” Lombardo, 594 U.S. at 467 (quoting
Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). “And ‘[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.’” Mendez, 581 U.S. at 428 (citing Graham, 490 U.S. at 396).
“Excessive force claims . . . are evaluated for objective reasonableness based
upon the information the officers had when the conduct occurred.” Id. (quoting
Saucier v. Katz, 533 U.S. 194, 207 (2001)).
The parties agree that Guetschow took Doe from a standing position to a
prone position on the ground. They agree that Guetschow placed his knee on
the back of Doe’s neck. They genuinely disagree over just about every other fact
material to the excessive force determination. They disagree about “any effort
made by the officer to temper or limit the amount of force”—in other words,
whether Guetschow had the opportunity to do anything that would have
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prevented the fight, or whether anything he might have had time to do would
have headed it off. They disagree about the “severity of the security problem at
issue”—whether Doe “softly pushed” LM or whether the fight was “very violent.”
They disagree about the need for the use of force”—again, whether the fight
was “violent,” as well as whether Doe was resisting. They disagree about
whether the “threat” was “reasonably perceived” by Guetschow. They disagree
about “the amount of force used”—whether Guetschow pushed Doe’s head into
the floor, impeded her breathing or had his knee to her neck with force and for
how long. They even disagree on the extent of the plaintiff’s injury. And both
parties refer to, and rely on, the surveillance camera video in support of their
version of the facts. The material facts surrounding the excessive force claim
are rife with genuine disputes; in most instances, that ends the summary
judgment discussion and requires the court to start discussing trial dates.
The court acknowledges that the Supreme Court has held that “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). In Scott, the “record” that
blatantly contradicted the respondent's version of events was a videotape. Id. at
380-81. Unlike the footage in Scott, however, the footage in this case does not
“blatantly contradict” either party’s version of events. One video shows that Doe
was flailing when Guetschow intervened in the fight and that she continued to
do so for a few moments after Guetschow took her to the ground. See Dkt. No.
73-7. Only one of the videos shows both Guetschow and Doe at the moment
when Guetschow placed his knee on Doe’s neck, the point at which the
plaintiffs claim that Doe was not resisting and that the defendants assert that
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she was. See Dkt. No. 73-3. Doe was prone for several seconds before
Guetschow placed his knee on her neck. But it appears that Doe may have
lifted her head immediately prior to Guetschow placing his knee on her neck. It
isn’t clear from the video whether Doe was resisting or not at the time
Guetschow applied the force to her neck. And Guetschow gave deposition
testimony that the placement of his knee on Doe’s neck rather than her back
was accidental and that he immediately moved his knee when he realized it
was out of position. This is not remotely a case where the surveillance camera
footage is so clear that it “blatantly contradicts” one party or another’s version
of events. A factfinder will have to resolve the factual disputes raised by the
footage, the testimony and the other evidence.
A reasonable factfinder could conclude that Doe was not resisting, or
that if she was, the force used by Guetschow was not reasonable under the
totality of the circumstances. The court will deny the defendants’ motion for
summary judgment as to the excessive force claim.
2.

Qualified Immunity

“Qualified immunity shields a government official from suit when the
official is performing a discretionary function and his conduct does not violate
clearly established rights of which a reasonable person would have known.”
Sutterfield v. City of Milwaukee, 751 F.3d 542, 572 (7th Cir. 2014). “To be
‘clearly established,’ a constitutional right ‘must have a sufficiently clear
foundation in then-existing precedent.’” Campbell v. Kallas, 936 F.3d 536, 545
(7th Cir. 2019) (quoting District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)).
“Qualified immunity applies unless the specific contours of the right ‘were
sufficiently definite that any reasonable official in the defendant's shoes would
have understood that he was violating it.’” Id. (quoting Plumhoff v. Rickard, 572
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U.S. 765, 778-79 (2014)). Clearly established law “cannot be framed at a ‘high
level of generality.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
Whether qualified immunity applies turns on two questions: First,
whether the facts presented, taken in the light most favorable to the
plaintiff, describe a violation of a constitutional right; and second,
whether the federal right at issue was clearly stablished at the time
of the violation. Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (per
curiam). These questions may be addressed in either order. Jones
[v. Clark], 630 F.3d [677] at 682 [7th Cir. 2011] (citing Pearson v.
Callahan, 555 U.S. 223, 236-43 (2009)). “If either inquiry is
answered in the negative, the defendant official is protected by
qualified immunity.” Koh v. Ustich, 933 F.3d 836, 844 (7th Cir. 2019)
(citation and internal quotation marks omitted).
Smith v. Finkley, 10 F.4th 725, 737 (7th Cir. 2021) (emphasis in original).
Viewed in the light most favorable to the plaintiffs, the facts describe a
possible violation of a constitutional right—the Fourth Amendment’s
prohibition against the use of excessive force in effectuating a seizure. To
determine whether that constitutional right was clearly established at the time
of the incident, the court must determine whether “precedent squarely governs
the facts at issue, mindful that [it] cannot define clearly established law at too
high a level of generality.” Id. at 742 (quoting Strand v. Minchuk, 910 F.3d 909,
917 (7th Cir. 2018)). Defining the “clearly established right” with specificity is
important, “as it can be difficult to determine how the law on excessive force
will apply to a factual situation” given the heavily fact-intensive nature of
excessive force claims. Id. An official “cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently definite that any
reasonable official in the defendant’s shoes would have understood that he was
violating it.” Kisela v. Hughes, 584 U.S. 100, 105 (2018) (quoting Plumhoff, 134
S. Ct. at 2023).

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It is clearly established “that using a significant level of force on a nonresisting or a passively resisting individual constitutes excessive force.” Alicea
v. Thomas, 815 F.3d 283, 292 (7th Cir. 2016) (citing Rambo v. Daley, 68 F.3d
203, 207 (7th Cir. 1995)); see also Miller v. Gonzalez, 761 F.3d 822, 829 (7th
Cir. 2014) (“the law is clearly established that police officers cannot use
‘significant’ force on suspects who are only passively resisting arrest”). There
are genuine disputes regarding the material facts of whether Doe was resisting
and whether the force Guetschow used was reasonable, but at the time of the
events that unfolded in the cafeteria, the law was clearly established that an
officer could not use excessive force on a non-resisting individual. The record
contains evidence that Guetschow may have done so. Guetschow is not entitled
to qualified immunity.
V.

Conclusion
The court GRANTS intervenor defendant City of Kenosha’s motion for

summary judgment. Dkt. No. 41.
The court DECLARES that defendant Guetschow is not entitled to
indemnification by the City of Kenosha for any judgment entered against him
in this case.
The court GRANTS defendants Guetschow and KUSD’s motion for
summary judgment as to the Monell claim against KUSD. Dkt. No. 54.
The court DENIES defendants Guetschow and KUSD’s motion for
summary judgment as to the excessive force claim against Guetschow. Dkt. No.
54.
The court ORDERS that defendant KUSD and intervenor defendant City
of Kenosha are DISMISSED.

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The court will schedule a status conference with the remaining parties to
discuss the next steps in the litigation.
Dated in Milwaukee, Wisconsin this 11th day of March, 2025.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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