On July 10, 2018, the Seventh Circuit Court of Appeals decided Mason-Funk v. City of Neenah, et al.[i], in which the court examined a police shooting of a man who was an armed hostage of a barricaded gunman.  The relevant facts of Mason are as follows:

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 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 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 silver-colored 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 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.”[ii]

Funks wife filed suit against the City and the involved officers and claimed that the officers used excessive force under the Fourth Amendment when they used deadly force on Funk.  The state claims will not be discussed in this article.  The district court granted summary judgment for the city and the officers and held that, under the circumstances, they did not use unreasonable force.  The district court alternatively held that the officers were entitled to qualified immunity from suit.  The plaintiff appealed the grant of summary judgment and qualified immunity to the Seventh Circuit Court of Appeals.

On appeal, the court of appeals first discussed the legal requirements for qualified immunity.  The court stated

Qualified immunity attaches when an official’s 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.[iii]

The court also discussed the meaning of “clearly established” and stated

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 White, 137 S. Ct. at 551).[iv]

The court also noted that they are permitted to skip the first prong of the qualified immunity test (whether the official violated the constitution), and decide the second prong if that alone will dispose of the claim.  That is what the court chose to do in this case.

The court also noted that the Supreme Court has stated that the lower courts should not define “clearly established” law by using cases that state general legal principles.  Rather, the facts should be similar enough that a reasonable officer would be on notice that his or her conduct was unreasonable.

On appeal, the plaintiff argued that the officers should not be entitled to summary judgment or qualified immunity because (1) the officers had a constitutional obligation to distinguish between the suspect and the hostages, (2) Funk’s conduct did not create and imminent threat that would justify deadly force, and (3) deadly force cannot be used without a warning, except in extraordinary circumstances.[v]

Regarding the plaintiff’s first argument that officers had a constitutional duty to distinguish between hostages and suspects prior to using deadly force, the court noted that the plaintiff was not able to cite any cases that could be considered precedent such that officers would be on notice.  The cases cited were district court decisions and those are not considered “precedent” and, as such, cannot “clearly establish” law.  Thus, the first argument failed.

Regarding the plaintiff’s second and third arguments, the court noted that the plaintiff attempted to rely on Tennessee v. Garner and stated

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.

Because Garner did not alone create the needed precedent, the plaintiff also cited cases from the Fourth, Fifth, and Seventh Circuits.[vi]  The court examined these cases and their opinion is instructive and quoted as follows:

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 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.

As such, the court held that since there was no precedent that would have informed the officers that the use of deadly force in the circumstances that they faced was unlawful, the officers were entitled to qualified immunity.



[i] No. 17-3380 (7th Cir. Decided July 10, 2018)

[ii] Id. at 2-5

[iii] Id. at 6

[iv] Id. at 6-7

[v] Id. at 8

[vi] Id. at 9 ( “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).”

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