Susan Doxtator v. Erik O'Brien ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2101
SUSAN DOXTATOR, et al.,
Plaintiffs-Appellants,
v.
ERIK O’BRIEN, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 19-cv-00137 — William C. Griesbach, Judge.
____________________
ARGUED FEBRUARY 23, 2022 — DECIDED JULY 12, 2022
____________________
Before SYKES, Chief Judge, and FLAUM and KANNE, ∗ Circuit
Judges.
FLAUM, Circuit Judge. Plaintiffs Susan Doxtator, Arlie Dox-
tator, and Sarah Wunderlich, in their capacities as Special Ad-
ministrators of Jonathon Tubby’s estate (the “Estate”), sued
∗ Circuit Judge Kanne died on June 16, 2022, and did not participate
in the decision of this case, which is being resolved under 28 U.S.C. § 46(d)
by a quorum of the panel.
2 No. 21-2101
various law enforcement entities under 42 U.S.C. § 1983 for
their respective roles in the events leading to Tubby’s death.
On October 19, 2018, Green Bay Police Department (GBPD)
officers arrested Tubby and transported him to jail for book-
ing. Upon entering the jail’s sally port (the secure entryway to
the jail), however, Tubby became non-compliant, refusing to
exit the squad car and concealing one hand under his shirt
while threatening to “do it” if officers came any closer. The
arresting officers called for backup, and Tubby was eventually
forced out of the car with pepper spray after he continued to
keep one hand under his shirt in a manner that, to officers on
the scene, indicated he had a weapon. Even upon exiting the
squad car, Tubby refused to surrender but instead rushed to-
wards the exit in an apparent attempt to escape. When one of
the officers on scene heard a “pop” that he believed to be a
gunshot coming from the weapon he presumed Tubby was
hiding, he discharged his firearm eight times, hitting Tubby
with five shots. Soon after, Tubby was pronounced dead.
The Estate filed suit, bringing § 1983 and state common
law claims against the shooting officer, various other re-
sponding officers, the City of Green Bay, Brown County, and
the municipalities’ law enforcement agencies. The defendants
moved for summary judgment, which the district court
granted. The Estate now appeals. For the following reasons,
we affirm the district court’s entry of summary judgment.
I. Background
A. Factual Background
Our description of the relevant facts mirrors the district
court’s detailed recitation and also draws from the video re-
cordings available in the record. At approximately 7:30 PM on
No. 21-2101 3
October 19, 2018, Green Bay Police Department officers Col-
ton Wernecke and his field training officer, Erik O’Brien, ini-
tiated a traffic stop of a vehicle with an unregistered license
plate that had just run a red light. Instead of immediately re-
sponding to the squad car’s overhead lights, siren, and spot-
light, the vehicle continued driving and then pulled into the
parking lot of a nearby hotel. It drove through the parking lot
before eventually pulling into a parking spot. The occupants
of the vehicle initially gave false identifications, but Wernecke
and O’Brien were ultimately able to identify the driver as
Tubby and the passenger as his aunt, Theresa Rodriguez. A
records check revealed that each had active warrants out for
their arrest.
O’Brien requested backup to provide cover, and another
officer from GBPD, Tyler Haack, showed up. When the offic-
ers approached the vehicle, Haack observed what he believed
to be marijuana, so the officers ordered Tubby and Rodriguez
to exit the vehicle. O’Brien observed as Wernecke handcuffed
Tubby behind his back, searched him, and placed him in the
back of their squad car. Meanwhile, Haack handcuffed Rodri-
guez, placed her in his squad car, and left to bring her to the
Brown County Jail. O’Brien and Wernecke waited in the park-
ing lot for a tow truck to arrive and remove Tubby’s vehicle.
It was approximately 7:35 PM when Wernecke placed
Tubby in the squad car, handcuffed and secured by a seatbelt,
but by 7:45 PM, Tubby had moved his hands under his legs,
removed his seatbelt, and moved his right hand under his
shirt. At around 8:10 PM, Wernecke and O’Brien drove Tubby
to the Brown County Jail to be booked on his outstanding ar-
rest warrant and on a new marijuana charge. Tubby sat
4 No. 21-2101
quietly, leaning forward, for the twelve minutes it took to
reach the jail.
Wernecke and O’Brien drove into the sally port of the jail
around 8:22 that evening, where they parked and exited the
squad car to escort Tubby inside. In accordance with the jail’s
rules, the officers placed their gear and weapons in the trunk
of the squad car before Wernecke walked around the vehicle
to retrieve Tubby. When Wernecke opened the rear driver’s
side door, he noticed Tubby’s hands were no longer behind
his back but were instead balled up under his shirt. Wernecke
repeatedly ordered Tubby out of the vehicle, but Tubby ig-
nored each command.
O’Brien then came around to Wernecke’s side to assist,
and he too immediately noticed that Tubby had moved his
hands to his front, where they were concealed under his
clothes. To him, it appeared that Tubby was pressing a barrel
of a gun against the inside of his shirt. When O’Brien at-
tempted to pull Tubby’s foot out of the car, Tubby stated,
“Don’t!” and, “I’ll fucking do it.” O’Brien slammed the door
shut and told Wernecke, “I think he’s got a gun.” O’Brien then
asked Wernecke what he thought, and Wernecke responded
that he must have missed something in his search of Tubby’s
person.
The officers then alerted the jail’s staff that they believed
Tubby to be armed. O’Brien and Wernecke retrieved their
weapons from the back of the squad car, took cover behind a
nearby transport van, and radioed police dispatch for backup,
reporting that “it looked like” Tubby had “something” in his
hand. O’Brien later relayed to police dispatch that Tubby had
something under his shirt pointed up to his chin and re-
quested that an officer bring a shield for their protection.
No. 21-2101 5
Starting at 8:30 PM, other officers, from both GBPD and the
Brown County Sheriff’s Office (BCSO), began to arrive on-
scene. Among them was GBPD Lieutenant Nate Allen, the su-
pervisor on duty that night, who spoke with the department’s
SWAT commander to develop a plan for removing Tubby
from the squad car. They decided that Allen would drive a
Bearcat, an armored SWAT vehicle, up near the squad car and
that a team of officers with shields would open the rear door
and command Tubby to exit the vehicle. If he did not comply,
they would deploy a K-9 unit to pull him out. The plan
changed, however, when Lieutenant Thomas Zeigle, the com-
mander of the BCSO SWAT team, arrived and asserted his ju-
risdiction over the situation. He determined that official acti-
vation of a SWAT team was unnecessary given the number of
officers, including SWAT-trained officers, already on scene.
Instead, Zeigle decided they would first break the back win-
dow of the squad car to establish better communication with
and visibility of Tubby. If they couldn’t coax him out of the
vehicle with words, Zeigle decided they would then deploy
pepper spray to get a reaction from Tubby and possibly force
him out of the vehicle and into the open, where he would
likely surrender.
The officers settled on this plan and began to set it into
motion. One group of officers formed an arrest team, another
spread out along the perimeter of the sally port’s open door
to prevent Tubby from escaping, and another piled into the
Bearcat vehicle. At approximately 9:02 PM, the Bearcat moved
into position, pulling up next to the driver’s side of the squad
car. While this was happening, Tubby appeared to put some-
thing in his mouth through his shirt, and he said, “I’ll fucking
do it.” Shortly after this, Tubby turned towards the back win-
dow and repeated, “I’ll fucking do it.”
6 No. 21-2101
At approximately 9:06 PM, Officer Eric Allen of GBPD
stood up through the top of the Bearcat’s turret and fired a 44-
millimeter wooden dowel into the rear windshield of the
squad car. Part of the window shattered, and Tubby recoiled,
saying, “Fuck you.” Allen then said, “Jonathon, put your
hands up where I can see them,” and, “Jonathon, put your
hands up.” Tubby maneuvered himself into the corner of the
squad car and began crying. He yelled, “Okay!” and then
said, “What are you guys doing to me?” Shortly after that, he
said, “Help me,” and “I’m scared,” though he never showed
both of his hands to the officers.
To get a better view into the backseat of the squad car, Of-
ficer Allen fired a second wooden dowel into the window,
and then another officer in the Bearcat used a tool to break out
the remaining pieces of the windshield. At this point, Allen
had a better view into the car, and he believed he saw Tubby
facing the now-broken rear windshield with his hands still
tucked under his shirt, holding something under his chin. Al-
len made repeated commands to Tubby to put his hands up,
but Tubby ignored each one. Around 9:09 PM, Allen used a
loudspeaker from the Bearcat to tell Tubby, “Jonathon, put
your hands up.” Tubby did not comply but responded, “What
are you guys doing to me?” Allen then implored Tubby to
obey their commands, saying, “Jonathon, put your hands up,
bud, so I can see them. Come on, Jonathon. Jonathon, we don’t
want to hurt you. Put your hands up, bud. Come on, Jona-
thon.” But, still, Tubby refused to comply and kept at least
one of his hands concealed under his shirt.
Allen, however, did not give up. At one point, he saw that
Tubby’s left hand was empty and outside of his shirt. When
Jonathon looked out the rear window, Allen said, “Jonathon,
No. 21-2101 7
put your hands up for me, bud. Put your hands up for me
Jonathon. I can see that one is clear. Let me see your other
hand. Let me see your other hand, bud.” Still, Tubby refused
to comply.
Less than a minute later, someone in the Bearcat handed a
canister of pepper spray up to Allen, and, without warning
Tubby, Allen deployed some of it into the rear of the squad
car.
Tubby began yelling and bouncing up and down in the
rear seat. He then scrambled out of the rear windshield and
onto the closed trunk of the squad car. He stood up and faced
out towards the officers, but he kept his right hand concealed
under his shirt. Unable to determine whether he was hiding a
weapon under his shirt, one officer, Sergeant Thomas Den-
ney, fired a bean bag, which struck Tubby in the lower abdo-
men and caused him to fall off the trunk of the squad car and
onto the ground. Tubby quickly rose to his feet and moved
towards the open sally port door, where several officers—in-
cluding Officer O’Brien—were standing.
While this was happening, another officer released the K9
unit, Pyro, from the Bearcat on a 15-foot lead, and the dog
closed in on Tubby as he was making his way towards the
sally port entrance. Pyro locked onto Tubby’s rear-end, and
the officer controlling Pyro pulled back on the lead to keep
Tubby from advancing towards the sally port entrance. Video
recorded from a squad car parked outside of the sally port
shows officers scattering to find cover as this was transpiring.
Sergeant Denney fired another beanbag round at Tubby,
causing him to fall to the ground. While he was falling, his
right hand fell above his head, empty. Then, as Pyro pulled
Tubby backwards, O’Brien heard a “pop” and fired his gun
8 No. 21-2101
eight times, striking Tubby with five of those rounds. All told,
approximately ten seconds passed between Tubby exiting the
squad car via the rear windshield and O’Brien shooting him.
When Tubby was down, officers rushed in to subdue him
and found that he was unarmed. They called for medical as-
sistance, and nurses administered first aid in an attempt to
save Tubby’s life. Tubby was pronounced dead at the scene.
The medical examiner later concluded his cause of death was
the gunshot wounds he sustained from O’Brien.
B. Procedural Background
Following Tubby’s death, the Estate filed suit, raising the
following list of claims: Count 1, § 1983 excessive force claim
against Officer O’Brien; Count 2, § 1983 failure-to-intervene
claim against Deputy Mleziva, Deputy Winisterfer, and John
Does; Count 3, § 1983 failure-to-train claim against Chief
Smith, Sheriff Delain, BCSO Captain Heidi Michel, the City of
Green Bay, and Brown County; Count 4, § 1983 excessive
force claim against City of Green Bay; Count 5, state-created
danger claim against Lieutenant Zeigle, Brown County, and
the city Green Bay; Count 6, battery against Officer O’Brien;
Count 7, negligence against Officer O’Brien, the City of Green
Bay, and Brown County; Count 8, negligence against Lieuten-
ant Zeigle, the City of Green Bay, and Brown County. The Es-
tate sought monetary and injunctive relief.
The district court dismissed all of the Estate’s claims on
summary judgment. It concluded that no reasonable jury
could conclude that O’Brien’s decision to fire his gun was un-
reasonable given the circumstances as he understood them at
the time, and, for this reason, it dismissed the § 1983 claim. It
further held that even if O’Brien’s use of force was
No. 21-2101 9
unreasonable, qualified immunity barred the Estate’s suit
against him. With regard to the failure-to-intervene and fail-
ure-to-train claims, the district court dismissed the claims on
the grounds that the underlying excessive force claim lacked
merit. The district court dismissed the state-created danger
claim because, it held, the doctrine did not apply to situations
where the harm suffered by the plaintiff was caused directly
by the state, rather than a private actor. In such situations, the
district court reasoned, § 1983 is the appropriate vehicle for
seeking relief. And, finally, given the dismissal of all the
claims over which it had original jurisdiction, the district
court declined to exercise supplemental jurisdiction over the
remaining state law claims. The Estate now appeals.
II. Discussion
We review summary judgment rulings de novo. Abdullahi
v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005). “Summary
judgment is warranted when the evidence, when viewed in a
light most favorable to the non-moving party, presents ‘no
genuine issue as to any material fact’ such that ‘the moving
party is entitled to a judgment as a matter of law.’” Id. (quot-
ing Fed. R. Civ. P. 56(c)). “[T]here is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party. If the evidence is
merely colorable or is not significantly probative, summary
judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249–50 (1986) (citations omitted).
The district court took a domino-like approach to dismiss-
ing the Estate’s case in its entirety: When the § 1983 claim
against O’Brien fell, the failure-to-train and failure-to-inter-
vene claims based on O’Brien’s actions also fell, which, in con-
junction with the dismissal of the state-created danger claim,
10 No. 21-2101
caused the state law claims to fall (albeit only to state court).
We analyze the claims in this same order, beginning with the
§ 1983 claim against O’Brien.
A. The Estate’s § 1983 Claim Against O’Brien
The Estate’s primary cause of action is its claim under
§ 1983 against O’Brien alleging use of excessive force. Defend-
ants assert summary judgment was proper on this claim be-
cause the Estate cannot show O’Brien’s use of deadly force
was unreasonable. In the alternative, they argue that even if
the use of deadly force was unreasonable, O’Brien is entitled
to qualified immunity.
After reviewing the tragic events leading to Tubby’s
death, we hold that O’Brien’s conduct was reasonable under
the circumstances and that, even if he had violated a constitu-
tional right belonging to Tubby, it was not a clearly estab-
lished right. As such, we conclude that there was no constitu-
tional violation and that, even if there were, qualified immun-
ity would shield O’Brien from suit.
1. Did O’Brien Violate a Constitutional Right Belong-
ing to Tubby?
In broad terms, § 1983 authorizes suits against govern-
ment officials who violate a person’s constitutional rights. 42
U.S.C. § 1983. “A police officer’s use of deadly force on a sus-
pect is a seizure within the meaning of the Fourth Amend-
ment,” so an unreasonable seizure is a violation of the Fourth
Amendment cognizable under § 1983. Ybarra v. City of Chi.,
946 F.3d 975, 978 (7th Cir. 2020) (quoting Horton v. Pobjecky,
883 F.3d 941, 948 (7th Cir. 2018)); see Graham v. Connor, 490
U.S. 386, 394 (1989). “[A]ll claims that law enforcement offic-
ers have used excessive force … should be analyzed under the
No. 21-2101 11
Fourth Amendment and its ‘reasonableness’ standard ….”
Graham, 490 U.S. at 395 (emphasis omitted). This reasonable-
ness standard is objective, in the sense that it is the facts and
circumstances presented to the officer at the time of the con-
duct at issue, rather than the officer’s subjective intent, that
matter. Horton, 883 F.3d at 950.
With regard to the use of deadly force, the Supreme Court
has clarified:
Where the officer has probable cause to believe
that the suspect poses a threat of serious physi-
cal harm, either to the officer or to others, it is
not constitutionally unreasonable to prevent es-
cape by using deadly force. Thus, if the suspect
threatens the officer with a weapon …, deadly
force may be used if necessary to prevent es-
cape, and if, where feasible, some warning has
been given.
Tennessee v. Garner, 471 U.S. 1, 11–12 (1985); see also Ybarra, 946
F.3d at 978 (“A suspect has a constitutional right not to be shot
by an officer unless the officer ‘reasonably believes that the
suspect poses a threat to the officer or someone else.’” (quot-
ing Horton, 883 F.3d at 948)).
In evaluating whether an officer used excessive force, we
are wary of hindsight bias and acknowledge the real chal-
lenges that officers regularly face on the job. Graham, 490 U.S.
at 396–97. These challenges often turn dangerous, calling for
“split-second judgments” to safeguard both the public and
the responding officers “in tense, uncertain, and rapidly
evolving” circumstances. Id. at 397. We remain mindful that
the opportunity to debate the merits of various law
12 No. 21-2101
enforcement responses “in the peace of a judge’s chambers”
is a privilege unavailable to most officers in real time. Id.With all of this in mind, we turn to back to the events that
played out in the sally port on the evening of October 19. Even
viewing them in the light most favorable to the Estate, we con-
clude that no reasonable jury could find O’Brien’s conduct
unreasonable under the circumstances.
First and foremost, Tubby intentionally led the officers to
believe he was armed by keeping his hand concealed under
his shirt in a manner that imitated the shape of a gun, and he
threatened repeatedly to “do it” as officers attempted to per-
suade him to surrender. By doing so, he effectively escalated
the situation into an armed standoff between himself and po-
lice. Furthermore, even when he eventually did exit the squad
car after being forced out with pepper spray, Tubby did not
surrender. Instead, even after he was hit with a bean bag
round, he stood up and ran towards the exit and the group of
officers standing thereby. Given that Tubby was undeterred
by the officers’ attempts to subdue him via less forceful means
and given that Tubby himself seemed to be intentionally com-
municating to the officers that he was armed and not afraid to
“do it,” it was reasonable for O’Brien to deploy deadly force
as Tubby rushed towards the exit and the nearby officers.
The Estate argues that O’Brien and the other officers
should have known that Tubby was unarmed because Officer
Wernecke had already searched him before placing him
handcuffed in the back of the squad car. But by the time the
officers reached the sally port and opened the door to let
Tubby out, he had squirmed his handcuffed hands from be-
hind his back. It would have been reasonable for O’Brien and
No. 21-2101 13
Wernecke to infer that Tubby had done this with a particular
goal in mind—for instance, to retrieve a weapon Wernecke
had not found on Tubby’s person or one that was laying in
the back of the squad car. In short, the fact that Tubby had
wriggled his handcuffed hands under his feet and then began
acting like he was concealing a weapon under his shirt was
more than enough to justify O’Brien’s belief that he was
armed, notwithstanding Wernecke’s earlier search.
Moreover, the record makes crystal clear that the officers
honestly believed that Tubby was armed. Though the reason-
ableness inquiry under the Fourth Amendment is objective—
and therefore subjective intentions and beliefs do not mat-
ter—the fact that so many officers all acted in accordance with
the idea that Tubby was armed lends credence to the reason-
ableness of the belief that he was indeed armed. The veracity
of this belief appears in many forms. First, O’Brien’s immedi-
ate comment to Wernecke upon slamming the squad door
shut after they attempted to get Tubby out was: “I think he’s
got a gun.” The pair then proceeded to call in SWAT-trained
personnel, who attempted to interact with Tubby only from
the turret of an armored vehicle. And when Tubby finally ex-
ited the back of the squad car and rushed towards the sally
port exit, video evidence shows Wernecke—the very officer
who had originally searched Tubby at the time of his arrest—
jumping over a wall for cover. At the same time, many other
officers can be seen scrambling for cover with hands on their
weapons. These are not the actions of officers who believe a
suspect to be unarmed.
The Estate also repeatedly claims that Tubby was “sub-
dued” at the time O’Brien shot him, because he was “hand-
cuffed, blinded, face-down on the ground, and being attacked
14 No. 21-2101
by a police canine.” This, the Estate argues, makes O’Brien’s
decision to shoot unreasonable. We carefully reviewed the
record and could find no clear video showing how Tubby was
positioned when O’Brien shot him. The autopsy photos are
consistent with his being shot while in a prone position, how-
ever, and the Estate’s expert testified that the abrasions on his
chin were sustained pre-mortem, indicating he may have
fallen to the ground before being shot. Viewing all facts in the
light most favorable to the Estate, we must accept the Estate’s
contention that Tubby was face-down on the ground at the
time O’Brien shot him.
Even so, however, we conclude that no reasonable jury
could find O’Brien’s decision unreasonable under the circum-
stances. First, being on one’s stomach on the ground does not
preclude one from firing a gun, so the fact that he was face-
down on the ground and handcuffed does not render him
“subdued,” especially if officers believed that one of his
hands contained a firearm. Additionally, by the time he was
shot, Tubby had thwarted all other attempts officers had
made to subdue him. These included: handcuffing him,
spraying him with pepper spray, firing two bean bag rounds
at him, and releasing a canine unit to apprehend him. Even
after all of these measures, Tubby continued to rush towards
the sally port exit and the officers guarding it. So, although
Tubby was on the ground at the time O’Brien fired his gun in
response to what he believed to be a gunshot, it was reasona-
ble for O’Brien to believe that Tubby was not in fact subdued
and would imminently get back up to his feet to rush for the
exit. Indeed, mere seconds earlier, O’Brien had observed
Tubby do just that after being shot with the first bean bag
round.
No. 21-2101 15
Finally, the Estate argues that O’Brien’s conduct was un-
reasonable because, by the time he fired his weapon, he had
seen each of Tubby’s hands empty and thus should have de-
duced that he was unarmed. The district court properly re-
jected this argument. Even if O’Brien had seen each of
Tubby’s hands empty, he never saw them simultaneously
empty and thus could not be sure that Tubby had not simply
moved his weapon from one hand to the other underneath his
shirt. Moreover, although the Estate insists that O’Brien
should have known that both of Tubby’s hands were empty,
the record reveals that only about ten seconds elapsed be-
tween Tubby’s exit from the squad car and O’Brien’s dis-
charge of his firearm. And this was a hectic ten seconds: mul-
tiple bean bag rounds were fired, officers were frantically
shuffling around the sally port’s exit with guns drawn, a ca-
nine unit was released to pursue Tubby, and Tubby fell mul-
tiple times. To expect the responding officers to have kept a
running mental inventory of exactly what was in which of
Tubby’s hands at each moment is unreasonable given the
pandemonium playing out in the sally port.
2. Assuming Arguendo that a Constitutional Right of
Tubby Was Violated, Was Such a Right “Clearly Es-
tablished?”
Even assuming O’Brien had violated a constitutional right
belonging to Tubby, the Estate has not put forth any cases
convincing us that the right was “clearly established.” We
therefore further hold that O’Brien is entitled to qualified im-
munity shielding him from suit.
The doctrine of qualified immunity shields public officials
from being sued in their official capacities unless their actions
“violated a statutory or constitutional right that was clearly
16 No. 21-2101
established.” Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (in-
ternal quotation marks omitted). The Supreme Court has held
that a right is “clearly established” for qualified immunity
purposes if its “contours were sufficiently definite that any
reasonable official in the defendant's shoes would have un-
derstood that he was violating it.” Id. In other words, “exist-
ing precedent must have placed the statutory or constitu-
tional question beyond debate.” Ashcroft v. Al-Kidd, 563 U.S.
731, 741 (2011). And in order to answer the question “beyond
debate,” the Supreme Court has repeatedly emphasized that
the clearly established law must share specific details with the
facts of the case at hand. White v. Pauly, 137 S. Ct. 548, 552
(2017) (“[T]he clearly established law must be ‘particularized’
to the facts of the case.” (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)). Though to defeat a defendant’s assertion
of qualified immunity plaintiffs need not produce a case di-
rectly on point, defining the applicable law “at a high level of
generality” simply will not do. Al-Kidd, 563 U.S. at 741–742.
Only in the “rare ‘obvious case’ [will] the unlawfulness of the
officer's conduct [be] sufficiently clear [without] existing prec-
edent … address[ing] similar circumstances.” D.C. v. Wesby,
138 S. Ct. 577, 590 (2018). “[This] sounds like a high bar be-
cause it is—qualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Lopez
v. Sheriff of Cook Cnty., 993 F.3d 981, 988 (7th Cir. 2021) (quot-
ing Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The Estate offers only two cases purporting to establish
that O’Brien violated a “clearly established” right belonging
to Tubby. Neither is at all close to being “particularized to the
facts of [this] case,” Pauly, 137 S. Ct. at 552, and, therefore, nei-
ther satisfies the “high bar,” Lopez, 993 F.3d at 988, required to
defeat the defendant’s assertion of qualified immunity.
No. 21-2101 17
First, the Estate points to Garner for its proposition that
“[a] police officer may not seize an unarmed, nondangerous
suspect by shooting him dead.” 471 U.S. at 11. But the Su-
preme Court itself has held that Garner is “cast at a high level
of generality” and therefore cannot clearly establish rights for
the purposes of qualified immunity, except in the most obvi-
ous cases. Brosseau v. Haugen, 543 U.S. 194, 199 (2004). As il-
lustrated by our discussion in the previous section, “[t]he pre-
sent case is far from the obvious one where … Garner alone
offer[s] a basis for decision.” Id.Then the Estate cites this Circuit’s decision in Becker v.
Elfreich, 821 F.3d 920 (7th Cir. 2016), where we held that a rea-
sonable jury could conclude that a police officer used exces-
sive force in executing a search warrant when he deployed a
police canine to apprehend an arrestee using the “bite and
hold” technique. Id. at 927–28. While the discussion in Becker
includes more details than the rule from Garner, those details
share very few similarities with the instant case, and Becker
therefore cannot have clearly established the right asserted by
the Estate. Importantly, the arrestee in Becker never displayed
any conduct suggesting to the officers that he was armed. In
fact, he “did not exhibit any sort of aggressive behavior to-
ward [the arresting officer] or anyone else.” Id. at 927. “Nor
was [the arrestee] actively resisting arrest or attempting to
evade arrest by flight.” Id. These dissimilarities with the in-
stant case are more than sufficient for us to conclude that
Becker provides no help to the Estate’s attempt to defeat
O’Brien’s assertion of qualified immunity.
* * *
We hold that, given Tubby’s conduct, no reasonable jury
could conclude that O’Brien’s use of force violated Tubby’s
18 No. 21-2101
Fourth Amendment rights. Furthermore, we hold that
O’Brien is entitled to qualified immunity because the right he
is alleged to have violated was not “clearly established” at the
time. For these reasons, we affirm the district court’s entry of
summary judgment on the Estate’s § 1983 claim against
O’Brien.
B. The Failure-to-Train and Monell Claims Against
the City of Green Bay and Chief Smith
The Estate also brings claims against the City of Green Bay
and GBPD Chief Smith. In particular, the Estate alleges that
both failed to properly train their officers in how to remove a
non-compliant arrestee from a squad car, and it alleges that
the City has a widespread practice of using excessive force—
a claim it brings under Monell v. Department of Social Services
of City of New York, 436 U.S. 658 (1978).
The district court properly dismissed each of these claims
on summary judgment because it had dismissed the underly-
ing claim against O’Brien. With respect to the Monell claim, “a
municipality cannot be liable under Monell when there is no
underlying constitutional violation by a municipal em-
ployee.” Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504
(7th Cir. 2010). With respect to the failure-to-train claim, “[a]
failure to train theory or a failure to institute a municipal pol-
icy theory requires a finding that the individual officers are
liable on the underlying substantive claim.” Tesch v. Cty. of
Green Lake, 157 F.3d 465, 477 (7th Cir. 1998). Because we affirm
the dismissal of the § 1983 claim against O’Brien, we also af-
firm the dismissal of the failure-to-train and Monell claims
against the City of Green Bay and Chief Smith.
No. 21-2101 19
C. The Failure-to-Intervene Claims Against Depu-
ties Mleziva and Winisterfer
The Estate also alleges that two of the other officers pre-
sent in the sally port are liable for failing to intervene and pre-
vent Tubby’s death. We affirm the district court’s entry of
summary judgment on these claims.
“An officer who is present and fails to intervene to prevent
other law enforcement officers from infringing the constitu-
tional rights of citizens is liable under § 1983 if that officer had
reason to know: (1) that excessive force was being used, (2)
that a citizen has been unjustifiably arrested, or (3) that any
constitutional violation has been committed by a law enforce-
ment official; and the officer had a realistic opportunity to in-
tervene to prevent the harm from occurring.” Yang v. Hardin,
37 F.3d 282, 285 (7th Cir. 1994) (emphasis omitted). In sum, an
officer must know that a citizen’s rights are being infringed,
and he must have a “realistic opportunity” to intervene.
“Whether an officer had sufficient time to intervene or was
capable of preventing the harm caused by the other officer is
generally an issue for the trier of fact unless, considering all
the evidence, a reasonable jury could not possibly conclude
otherwise.” Abdullahi, 423 F.3d at 774 (emphasis omitted)
(quoting Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467,
478 (7th Cir. 1997)).
In this case, neither Deputy Mleziva nor Deputy Winister-
fer had a realistic opportunity to intervene. The videos from
the record reflect that many of the responding officers (under-
standably, we think) had their guns drawn and pointed at
Tubby as he rushed towards the sally port exit. Because gun-
shots happen instantaneously, there was no period of time be-
fore O’Brien actually fired in which Mleziva and Winisterfer
20 No. 21-2101
could have known that he was going to shoot, at least not with
any higher likelihood than any of the other officers who had
their guns drawn. The deputies were also likely focused on
the supposedly armed, and possibly suicidal or homicidal,
suspect who seemed to be attempting to escape or attempting
to attack the officers towards whom he was rushing. It is
therefore wholly unrealistic to expect the deputies to have
trained their attention on O’Brien rather than said suspect or
any of the other officers who had their guns drawn. Because
no reasonable jury could conclude that either Deputy Mleziva
or Deputy Winisterfer had a realistic opportunity to inter-
vene, summary judgment on these failure-to-intervene claims
was warranted.
D. The Failure-to-Train Claims Against Brown
County and Brown County Sheriff’s Office
The Estate also brought failure-to-train claims against
Brown County and certain officers of the Brown County Sher-
iff’s Office, alleging that these entities failed to properly train
Deputies Mleziva and Winisterfer about how to intervene
when an officer is using excessive force. These claims fail for
the same reason as the failure-to-train claims against the City
of Green Bay and the Green Bay Chief of Police: the underly-
ing substantive claims—this time against Mleziva and Winis-
terfer—lack merit. See Tesch, 157 F.3d at 477 (“A failure to train
theory or a failure to institute a municipal policy theory re-
quires a finding that the individual officers are liable on the
underlying substantive claim.”).
E. The State-Created Danger Claim
Lastly, the Estate brought a § 1983 claim against Zeigle, the
City of Green Bay, and Brown County, alleging that these
No. 21-2101 21
entities violated Tubby’s constitutional right to due process.
In particular, the Estate brings this claim under the state-cre-
ated danger exception to the rule pronounced by the Supreme
Court in Deshaney. But the Estate misunderstands the holding
from Deshaney, and we hold that the facts of this case do not
fit into the state-created danger exception.
In DeShaney v. Winnebago County Department of Social Ser-
vices, a young boy had been in and out of hospitals with inju-
ries suggesting that his father was physically abusive. 489 U.S.
189, 192–93 (1989). Although government officials took minor
steps towards monitoring his safety, they allowed the boy’s
father to retain custody. Id. After the father eventually beat
the boy so severely that he was left with a permanent mental
disability, the boy and his mother sued the government offi-
cials for failing to remove him from his father’s care. Id. at 193.
The Supreme Court affirmed the decision of this Court, which
had, in turn, affirmed the district court’s dismissal of the case
on summary judgment. Id. at 193–94. The Supreme Court held
“that a State's failure to protect an individual against private
violence simply does not constitute a violation of the Due Pro-
cess Clause.” Id. at 197.
In DeShaney, the Court suggested that a different result
may have issued under either of two different circumstances:
(1) instances where the state has a “special relationship” with
(i.e., involuntary custody of) the victim such that the victim is
unable to protect himself, and (2) instances where the state
takes affirmative steps that subject the victim to harm or make
the victim more vulnerable to harm (the “state-created dan-
ger” exception). Id. at 199–201. Lower courts have since trans-
formed these into full-blown exceptions to Deshaney’s holding
that a state does not violate the Due Process Clause by failing
22 No. 21-2101
to protect an individual against private violence, though this
Court has described the exceptions as “limited” and “nar-
row.” First Midwest Bank Guardian of Est. of LaPorta v. City of
Chi., 988 F.3d 978, 988 (7th Cir. 2021), cert. denied sub nom. First
Midwest Bank v. City of Chi., 142 S. Ct. 389 (2021).
It is the state-created danger exception under which the
Estate brings its claims against Zeigle and the two municipal-
ities. The Estate alleges that Zeigle and the municipalities (via
their police officers) created the danger that eventually led to
Tubby’s death by deploying an ill-conceived plan to use pep-
per spray to induce Tubby to exit the squad car. This plan, the
Estate claims, inevitably led to the hectic scene that played out
and ultimately caused O’Brien to shoot Tubby.
But in attempting to take advantage of this “narrow” ex-
ception to Deshaney, the Estate misapplies Deshaney’s holding
to an entirely different scenario and then argues that the same
exceptions should apply. Deshaney held that the state does not
violate the constitution by failing to protect an individual
against “private violence.” Id. at 197 (emphasis added). This
Court has affirmed that this rule applies only to situations in
which the harm is perpetrated by private actors. See, e.g., Wil-
son v. Warren Cty., Ill., 830 F.3d 464, 469 (7th Cir. 2016) (“Due
Process does not require a state to protect citizens from pri-
vate acts unless the state itself creates the danger.”). Limiting
Deshaney’s rule to instances of private harm makes sense, too,
as of course the government violates constitutional rights
when it directly perpetrates unjustified violence against an in-
dividual. But in such cases, 42 U.S.C. § 1983 allows the victim
to seek redress directly for the harm rather than under a sig-
nificantly more attenuated “state-created danger” theory.
No. 21-2101 23
None of the cases cited by the Estate demand a different
result. For instance, the Estate argues that this Court’s holding
in White v. Rochford, 592 F.2d 381 (7th Cir. 1979), suggests that
the state-created danger doctrine does apply to public harms.
White, however, provides the Estate no help. In that case,
which was decided a decade before Deshaney, police officers
arrested a man after pulling him over on a Chicago highway
but left the minor children he was transporting on the side of
the road with no way to get home. The Court held that the
officers’ failure to protect the children from the harsh winter
weather constituted a violation of their due process rights and
allowed the case to proceed under 42 U.S.C. § 1983.
But the Estate’s attempt to stretch this holding is unper-
suasive. First, weather, unlike a police officer, is not a public
actor, and the case therefore does not stand for the proposi-
tion the Estate wants it to—namely, that the state-created dan-
ger exception to Deshaney allows plaintiffs to recover for
harms perpetrated directly by public officials. Nor does the
case even mention the phrase “state-created danger,” which
makes sense because it was decided ten years before
Deshaney. White, then, cannot stand for the proposition that
the state-created danger exception to Deshaney should be ex-
tended to harm affirmatively perpetrated by public actors. In
such instances, the proper vehicle for redress is a § 1983 claim
against the entities who perpetrated the harm, seeking redress
directly for that harm. None of the other cases cited by the
Estate come from this Circuit, and, moreover, none involves
facts analogous to those here.
Finally, the Estate claims that we will create a “loophole in
liability” if we hold that the state-created danger exception to
the Deshaney rule applies only to private harms. The Estate’s
24 No. 21-2101
only reason for this assertion is that such a rule would sup-
posedly preclude it from recovering anything if a jury deter-
mined that a reasonable officer could have believed that
Tubby was armed. In such a situation, O’Brien would not be
liable, and, the Estate claims, there would be no recourse for
the officers who forced out into the open a man they believed
to be armed, thereby creating a fraught situation likely to
cause harm.
The Estate’s conclusion on this point is simply not true. In
such a situation, state common law may provide recourse via
tort claims (like those the Estate brought in this very case),
and even if state law did not allow for such claims, it would
not follow that this Court can or must step in and use the Con-
stitution of the United States to fill that gap.
* * *
In sum, the Estate ignores the nuances of Deshaney and its
outgrowth of exceptions. The Estate attempts to frame the
“state-created danger” exception as a claim unto itself and ex-
tracts the applicable elements from their context, copying
them into its brief as if they make out a free-standing claim.
But Deshaney was limited to private acts of harm. Exceptions
to Deshaney’s holding thus also apply only to instances involv-
ing private acts of harm. This case involves harm carried out
by public law enforcement officers, and therefore Deshaney
and the exceptions thereto are wholly inapposite. We there-
fore affirm the lower court’s entry of summary judgment on
the Estate’s state-created danger claim.
No. 21-2101 25
III. Conclusion
Tragic as the consequences were, O’Brien’s conduct did
not violate Tubby’s constitutional rights to be free from un-
reasonable seizures, and, additionally, qualified immunity
shields O’Brien from liability. For both of these reasons, the
district court’s entry of summary judgment on the Estate’s
§ 1983 claim was proper. Without that claim, the other de-
pendent federal claims must also be dismissed. The last re-
maining federal claim, the state-created danger claim, has no
relevance to the facts of this case and should therefore be dis-
missed. Without any federal claims over which it had original
jurisdiction, the district court’s decision not to exercise sup-
plemental jurisdiction over the pendent state law claims was
not an abuse of discretion. For all of these reasons, we AFFIRM
the district court’s entry of summary judgment.