Date: 07-17-2018

Case Style:

Case Number: 17-3380

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Eastern District of Wisconsin (Milwaukee County)

Plaintiff's Attorney: Matt Hills, Joseph Ranney, Howard Schoenfeld

Defendant's Attorney: Thomas Armstrong, James G Godlewski, Gregg J Gunta

Description: Brian Flatoff’s decision to take individuals hostage at a
motorcycle shop in Neenah, Wisconsin,
had tragic consequences for Michael Funk. After managing
to escape from Flatoff, Funk was shot and killed in the alleyway
behind the shop by two officers of the Neenah Police
2 No. 17‐3380
Department (NPD), Craig Hoffer and Robert Ross. Unfortunately,
they mistakenly believed Funk was Flatoff.
Funk’s wife, Theresa Mason‐Funk, brought this lawsuit
under 42 U.S.C. § 1983 against Officers Hoffer and Ross, as
well as the City of Neenah (collectively, Defendants), alleging
that both officers used unreasonable and excessive force
against Funk. The district court granted summary judgment in
favor of Defendants, finding that the officers’ conduct was not
objectively unreasonable under the Fourth Amendment, and
that even if their conduct was unreasonable, they were
shielded from liability by qualified immunity. We conclude
that the qualified immunity issue is dispositive and affirm.
I. BACKGROUND
At approximately 8:35 a.m. on December 5, 2015, Flatoff
entered Eagle Nation Cycles in Neenah, Wisconsin, with a
MAC‐10 machine pistol and took four individuals in the shop,
including Funk, hostage. Flatoff had a dispute with an individual
named Vance Dalton, and demanded that he come to the
shop. Winnebago County Dispatch notified the NPD about the
hostage situation. Numerous officers from the NPD reported
to the scene, including Lieutenant Shawn O’Bre; Officer
Jonathon Kuffel, the SWAT team leader; Officer Hoffer, the
assistant SWAT team leader; and Officer Ross. Officers from
other jurisdictions also assisted the NPD.
Officer Ross received radio communications from the
primary dispatcher. He was provided with information that
there were three hostages, that Flatoff’s gun was a MAC‐10,
and that he was a white male with long hair and a plaid jacket.
Officer Hoffer received his information about the situation
No. 17‐3380 3
through other SWAT team members who used an encrypted
SWAT team radio channel.
When Lieutenant O’Bre arrived at the scene he instructed
the officers to set up a perimeter around the shop. The shop
had a main entrance on Main Street and a rear entrance in an
alley behind Main Street. Flatoff’s truck was parked in the alley
near the rear entrance. The officers positioned themselves and
their vehicles on both sides of the alley. Lieutenant O’Bre also
formed a “hasty response” team to enter the shop, rescue the
hostages, and neutralize Flatoff. Officer Kuffel was in command
of the hasty team, which included both Officers Hoffer
and Ross. The hasty team became critically necessary by
9:21 a.m., as Flatoff stated that if Dalton did not show up in the
next five minutes, he would start shooting. Although no
shooting occurred, at 9:39 a.m., Flatoff repeated this threat,
saying everyone inside the shop would die if Dalton did not
show up in the next minute.
Based on these threats, Officer Kuffel determined that the
hasty team needed to enter the shop. The hasty team formed a
“stack” in the following order: (1) Lieutenant Tyrone Thompson;
(2) Lieutenant O’Bre; (3) Officer Hoffer; (4) Officer Kuffel;
(5) Officer Ross. The team proceeded through the rear entrance
in its stack formation at 9:42 a.m., and upon entry, yelled to
Flatoff and the hostages “Police,” “get down, get down, get
down on the ground right now,” and “let me see your hands.”
When Funk dropped to the floor, Flatoff maneuvered behind
Funk and fired at the hasty team. Officer Hoffer’s helmet was
struck with a bullet above his right eye, and another bullet hit
a fire extinguisher obstructing the hasty team’s vision. The
hasty team exchanged some gunfire, but ultimately retreated
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one minute after their initial entry. Only the first four members
of the hasty team made their way into the shop.
After retreating from the shop, Officers Hoffer and Ross
moved to the east end of the alley, while Lieutenants O’Bre,
Thompson, and Officer Kuffel went to a parking lot west of the
rear entrance to the shop. Officer Hoffer believed that the hasty
team had been ambushed and that there were no hostages,
based on the large volume of gunfire and the lack of movement
to police commands by the hostages.
At 9:45 a.m., only minutes after the hasty team had retreated
from the shop, Flatoff instructed Funk to close the rear
door which the hasty team had left open, and warned Funk
that he would shoot him if he tried to escape. Funk went to
close the door, but immediately ran outside and dove to the
ground near the rear entrance as Flatoff fired bullets in his
direction. Officers Ross and Hoffer heard the shots fired at
Funk, and assumed a position on the east side of the alley in
view of the rear entrance.
The next sequence of mere seconds was captured on a
police dashcam from one of the vehicles facing the alley. Funk
took cover on the ground near Flatoff’s truck that was parked
in the alley, and eventually stood up to maneuver around the
truck. While moving around the truck, Funk retrieved a silvercolored
handgun from his waistband holster, and held it with
both hands in a lowered position. Funk crouched near the bed
of the truck, maintaining his sight on the rear entrance. At this
point, Officers Hoffer and Ross spotted Funk with a handgun
in his possession. Within seconds of the officers spotting
someone armed near the truck, Funk turned counter‐clockwise
No. 17‐3380 5
away from the rear entrance and ran across the alley. As Funk
ran across the alley, Officers Hoffer and Ross fired at him,
striking him in the hip and continually shooting at him as he
fell to the ground. Over a five‐second period of shooting,
Officer Hoffer fired eight shots, hitting Funk twice, and Officer
Ross fired eleven shots, hitting Funk five times.
Neither Officer Hoffer, Officer Ross, nor any other member
of law enforcement gave warnings to Funk as he ran across the
alley. Funk died as a result of his gunshot wounds.
His wife, both individually and in her capacity as the
personal representative of Funk’s estate, brought this lawsuit
under 42 U.S.C. § 1983, alleging a Fourth Amendment violation
of excessive force, as well as claims for battery and loss of
society and companionship under Wisconsin’s wrongful death
statute. The district court granted summary judgment in favor
of Defendants. Mason‐Funk v. City of Neenah, 296 F. Supp. 3d
1006 (E.D. Wis. 2017). The court found that Officer Hoffer and
Ross did not use objectively unreasonable force. Id. at 1011–16.
Even if the officers had used unreasonable force, the court
concluded they were entitled to qualified immunity because
the officers did not violate a clearly established right. Id. at
1016–22. Finally, the court did not retain jurisdiction over the
state law claims and dismissed them without prejudice. Id. at
1022.
II. DISCUSSION
Summary judgment is appropriate if the moving party has
shown there is “no genuine dispute as to any material fact,”
and is entitled to summary judgment as a matter of law. Fed.
R. Civ. P. 56(a). We review a grant of summary judgment
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de novo, construing all factual disputes and drawing all
reasonable inferences in favor of the non‐moving party. Kemp
v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017).
Defendants contend that they are entitled to qualified
immunity from the excessive force claims. “Qualified immunity
attaches when an officialʹs conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Kisela v. Hughes, 138 S.
Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly, 137
S. Ct. 548, 551 (2017) (per curiam)). “Qualified immunity gives
government officials breathing room to make reasonable
but mistaken judgments about open legal questions.” Ashcroft
v. al‐Kidd, 563 U.S. 731, 743 (2011). In determining whether
an official is entitled to qualified immunity, we examine
(1) whether “the official violated a statutory or constitutional
right,” and (2) whether “the right was ‘clearly established’ at
the time of the challenged conduct.” Id. at 735. We have
discretion to choose which prong to address first, Pearson v.
Callahan, 555 U.S. 223, 236 (2009), and since the second prong
is dispositive here, we address only whether the right at issue
was clearly established.
A right is “clearly established” when it is “sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566
U.S. 658, 664 (2012)). The Supreme Court has reiterated time
and again that demonstrating a clearly established right does
not require pointing to a case directly on point, but “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Kisela, 138 S. Ct. at 1152 (quoting
No. 17‐3380 7
White, 137 S. Ct. at 551). “Put simply, qualified immunity
protects all but the plainly incompetent or those who knowingly
violate the law.” Mullenix, 136 S. Ct. at 308 (internal
quotation marks and citation omitted).
Moreover, the Supreme Court has cautioned lower courts
“not to define clearly established law at a high level of generality.”
al‐Kidd, 563 U.S. at 742. “[S]pecificity is especially important
in the Fourth Amendment context, where the Court has
recognized that it is sometimes difficult for an officer to
determine how the relevant legal doctrine, here excessive force,
will apply to the factual situation the officer confronts.” Kisela,
138 S. Ct. at 1152 (quoting Mullenix, 136 S. Ct. at 308). Excessive
force cases always depend on the particular facts at hand, and
accordingly, “police officers are entitled to qualified immunity
unless existing precedent squarely governs the specific facts at
issue.” Id. at 1153 (internal quotation marks and citation
omitted).
Finally, we note that “general statements of the law are not
inherently incapable of giving fair and clear warning to
officers.” Id. (quoting White, 137 S. Ct. at 552). In both Tennessee
v. Garner, 471 U.S. 1 (1985), and Graham v. Connor, 490 U.S. 386
(1989), the Supreme Court addressed the constitutionality of
excessive and deadly force. In Garner, the Court held that
“[w]here the officer has probable cause to believe that the
suspect poses a threat of serious physical harm, either to the
officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force.” 471 U.S. at 11. Then in
Graham, the Court held that evaluating the reasonableness of
an officer’s use of force “requires careful attention to the facts
and circumstances of each particular case,
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including … 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.” 490
U.S. at 396. However, since these two decisions, the Supreme
Court has made clear that “Garner and Graham do not by
themselves create clearly established law outside an obvious
case.” Kisela, 138 S. Ct. at 1152 (quoting White, 137 S. Ct. at 552).
Mason‐Funk argues that existing case law put Officers
Hoffer and Ross on notice that their conduct and use of deadly
force was unconstitutional. More specifically, she contends that
the officers were on notice (1) that they had a constitutional
obligation in hostage situations to protect innocents and
distinguish between the suspect and innocents; (2) that Funk’s
conduct did not create an imminent threat justifying the use of
deadly force; and (3) that deadly force may not be used
without providing a warning, except in extraordinary circumstances.
We first examine Supreme Court precedent and precedent
from this Circuit to determine whether a right was clearly
established at the time of violation. Gill v. City of Milwaukee, 850
F.3d 335, 341 (7th Cir. 2017). Mason‐Funk relies on Garner for
the second and third propositions above—deadly force is only
permissible when the suspect poses a threat of imminent harm
to the officers or others, 471 U.S. at 11, and deadly force may be
used to prevent an escape only “if, where feasible, some
warning has been given.” Id. at 11–12. But Mason‐Funk admits
that Garner alone does not create clearly established precedent
and that this is far from the obvious case where it might create
such precedent.
No. 17‐3380 9
In support of Garner’s general rules, Mason‐Funk directs us
to decisions where courts denied qualified immunity to officers
who used deadly force on an armed suspect despite not being
in imminent harm. In Weinmann v. McClone, we held that
existing precedent established that a suicidal person sitting
with a gun across his lap, who had not threatened an officer
with any harm, had the right to be free from the use of deadly
force. 787 F.3d 444, 451 (7th Cir. 2015). The Fourth Circuit in
Cooper v. Sheehan stated that “mere possession of a firearm by
a suspect is not enough to permit the use of deadly force,” and
held that it was clearly established that deadly force could not
be used when an armed individual posed no threat to the
officers, made no sudden movements, and ignored no commands.
735 F.3d 153, 159–60 (4th Cir. 2013). The court in Cooper
also noted that the officers never identified themselves. Id. at
159. Finally, in Baker v. Putnal, the Fifth Circuit declined to
apply qualified immunity when an officer, responding to
gunshots, on a beach used deadly force on an armed individual
who made no threatening movements and merely turned in
the officer’s direction. 75 F.3d 190, 198 (5th Cir. 1996).
In arguing that Officers Hoffer and Ross were on notice to
distinguish between innocents and suspects, and to provide a
warning in a hostage situation, Mason‐Funk cites Idaho v.
Horiuchi, 253 F.3d 359 (9th Cir. 2001), vacated as moot, 266 F.3d
979 (9th Cir. 2001). That case involved the Ruby Ridge hostage
situation where an FBI officer mistakenly killed the suspect’s
wife with a sniper rifle. 253 F.3d at 362–64. However, as noted
in the citation, that opinion was vacated as moot, and a vacated
opinion can hardly be said to have clearly established any
constitutional right. Finally, Mason‐Funk relies on a handful of
10 No. 17‐3380
district court opinions involving hostage situations to support
Horiuchi, but “district court decisions have no weight as
precedents and therefore cannot clearly establish a constitutional
right,” Boyd v. Owen, 481 F.3d 520, 527 (7th Cir. 2007).
No existing precedent squarely governs the facts and
circumstances that confronted Officers Hoffer and Ross. See
Kisela, 138 S. Ct. at 1153. Consequently, the officers were not on
notice that their use of deadly force on an armed individual,
without warning in a dangerous and chaotic hostage situation,
violated any clearly established right. Funk fails to cite to any
precedent, outside of a vacated Ninth Circuit opinion and a
handful of district court cases, which involved a hostage
situation. On this basis alone, the remaining cases cited by
Funk are factually distinct and incapable of giving the officers
any fair warning that they violated a clearly established right.
In the circuit cases cited by Funk, the individuals armed
with guns did not pose an imminent threat to the officers based
on the context of those confrontations. However, the backdrop
here to the officers’ use of deadly force was an active and
dangerous hostage situation, one in which they had been shot
at by the hostage‐taker. These circumstances, absent in Garner,
Weinmann, Cooper, or Baker, posed a unique and serious threat
to the officers, undermining comparisons to the aforementioned
cases.
To drive home the point, it is worth recounting what
occurred in the short span of six minutes. Flatoff had continuously
made threats that he would kill the hostages, which
prompted the hasty team to act. When the hasty team encountered
Flatoff inside the shop, Officers Hoffer and Ross were
No. 17‐3380 11
met with a barrage of gunfire, including a shot that struck
Officer Hoffer’s helmet in what he believed was not a hostage
situation, but rather an ambush. Within minutes of being shot
at, the officers heard more gunfire coming from the rear
entrance. When Funk appeared in their line‐of‐sight holding a
gun, the officers, in a matter of seconds, concluded that Funk
was one of the people inside the shop who had shot at them
only minutes ago.
Simply put, the facts in this case and existing precedent
failed to put Officers Hoffer and Ross on notice that their use
of deadly force, without a warning, on an armed individual in
a dangerous hostage situation, was unlawful. The officers did
not violate a clearly established right and they are entitled to
qualified immunity.

Outcome: We AFFIRM the district court’s grant of summary judgment
in favor of Defendants.

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