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  • WisBar News
    May 28, 2015

    Federal Appeals Court Won’t Dismiss Case Alleging Excessive Police Force

    Joe Forward
    Legal Writer

    May 28, 2015 – More fact-finding is necessary to determine whether a Waupaca County police officer who shot a suicidal man is immune from a federal lawsuit alleging excessive force, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    Susan Weinmann called police after her husband, Jerome Weinmann, went into the couple’s garage and drank half a bottle of vodka before putting the barrel of a shotgun in his mouth. Weinmann was a convicted felon who was prohibited from possessing firearms. Although he threatened to, Weinmann never pulled the trigger.

    Deputy Patrick McClone arrived on the cene. The facts of what happened next are in dispute, but Weinmann alleges that McClone gained forced entry into the garage and shot him four times. McClone says Weinemann’s shotgun was pointed in his direction.

    The shots left Weinmann with a partially amputated thumb and total replacement of a joint in his jaw. Weinmann and his wife filed a federal lawsuit under 42 U.S. section 1983, seeking compensatory and punitive damages for using excessive police force.

    The U.S. District Court for the Eastern District of Wisconsin dismissed Weinmann’s claim against Waupaca County but declined to dismiss the claim against McClone. It said disputed facts precluded a finding that McClone was shielded by immunity.

    Government actors, including police officers, have qualified immunity from civil lawsuits if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” McClone says he did not violate Weinmann’s right against unreasonable searches and seizures, and even if he did, he had an objectively reasonable belief that his life was in imminent danger.

    In Weinmann v. McClone, No. 14-1794 (May 27, 2015), the Seventh Circuit Court of Appeals affirmed, concluding the case could not be dismissed because disputed facts must be resolved to determine whether McClone’s use of force was reasonable.

    “As the district judge rightly noted, if Jerome had the gun raised to his shoulder and pointed at McClone, then McClone would have been justified in using deadly force and hence entitled to qualified immunity,” wrote Judge Diane Wood.

    “But, to repeat, the facts are disputed, and that is why the district judge was correct to determine that for present purposes Jerome has alleged actions that violated his Fourth Amendment right against unreasonable seizures,” Judge Wood explained.

    The panel noted that Weinmann must prove McClone used force that a reasonable officer should know was excessive, and “shooting a suicidal person who is neither resisting arrest nor threatening anyone save himself is an excessive use of force.”

    McClone argues that the position of the shotgun allowed him to use deadly force to protect himself. But the panel said the case cannot be dismissed with facts in dispute.

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