May 13, 2025 – Three victims of a violent 2015 hostage-taking in Neenah recently lost their Fourth Amendment claims before a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in Moderson v. City of Neenah, No. 23-2843 (May 9, 2025).

In a decision written by Circuit Judge Candace Jackson-Akiwumi and joined by Judges Frank H. Easterbrook and Ilana Diamond Rovner, the dangerous crime scene made brief seizures reasonable even when two victims were handcuffed and one had his possessions briefly held by police.

Hostages and Gunfire

Because the case is an appeal from summary judgment, the Seventh Circuit decision describes the facts most favorably to the plaintiffs.

A man with a submachine gun took over Eagle Nation Cycles in Neenah on Dec. 5, 2015. Initial reports told police that a shot had been fired inside the motorcycle shop and the gunman threatened to kill hostages within five minutes.

As officers took positions, a truck fled the scene. Dispatch said the shooter was in the truck. Officers stopped the truck driven by Ethan Moderson.

He had escaped, encouraged by his father, Ryan Moderson, who remained in the building with the long-haired, white gunman. Police released Ethan after asking questions for about a minute.

After four minutes had passed since the threat, police moved to enter the building to free the hostages.

“Motorcycles and mechanical equipment frustrated their entry.” Police thought they saw two calm individuals moving in opposite directions in a flanking maneuver.

Police faced gunfire and smoke. One officer was hit. Two officers fell down an interior stairwell. From an officer’s “target-specific directed fire” for cover, police exited the building.

The experience caused police to think this wasn’t a hostage situation, but an ambush.

Two individuals exited the back of the building, plaintiffs Michael Petersen and Ryan Moderson. Police handcuffed them. Police transported Petersen to the police station.

Police took Ryan Moderson to his already freed son. The Modersons agreed to interviews and to provide written statements to police.

Three minutes after police retreated, they heard shots inside. Officers saw an armed man “run from the building, take cover behind a vehicle, and then run across an alley.” Police shot and killed him. The man, Michael Funk, was one of the hostages.

The hostage-taker, Brian Flatoff, eventually left the shop, and police arrested him.

Officers detained the final hostage, plaintiff Steven Erato. They took his “wallet, cellphone, vehicle key, and rosary and transported him to the police station,” where, with his lawyer, police advised him that he wasn’t under arrest and was free to go. He stayed for an interview with police.

Ryan Moderson, Petersen, and Erato later sued the city and its officers for unreasonable seizure in violation of the Fourth Amendment and sought punitive damages. Judge William C. Griesbach of the U.S. District Court for the Eastern District of Wisconsin held the seizures reasonable and the officers protected by qualified immunity.

Conditions at Seizure

Citizen encounters with police are either consensual, stops, or arrests, in order of severity. A seizure involves the police restraining an individual’s choice to walk away.

For an investigative stop, commonly known as a Terry stop, “reasonable suspicion that the suspect may be engaged in criminal activity” is enough. Only if the stop “morphs into an arrest is probable cause required,” the Seventh Circuit decision explained.

The reviewing court assumed without deciding whether the three stops were Terry stops.

The crime scene remained chaotic and dangerous for police when police seized Ryan Moderson, Petersen, and Erato.

“Gunfire thwarted the officers’ rescue attempt, leading them to fear multiple shooters remained inside,” the Seventh Circuit Court panel explained. “Against this backdrop, the officers were justified in temporarily detaining [p]laintiffs after they escaped the building.”

Plaintiffs argued that officers had information that distinguished them from the perpetrator. The decision explains that officers didn’t have to “bet their lives on the accuracy of reports.”

“Even if the officers relied on initial descriptions of the hostage-taker and did not believe [p]laintiffs were hostage-takers or shooters, the danger inherent in the situation justified [p]laintiffs’ detention.”

The Seventh Circuit held that police acted reasonably when it seized plaintiffs.

Extent of Seizure

The Seventh Circuit panel analyzed whether each seizure remained reasonable. The “officers had a straightforward mission,” the court said, based on Defendants’ arguments.

That mission involved: “(1) ascertain the identity of people leaving the scene before they were lost to officers; (2) determine whether anyone else had firearms, and, if so, how many; and (3) investigate the situation without interference from those stopped.”

Ryan Moderson had the least contact with police. Although police handcuffed him, it “ended when they reunited him with his son.” When Moderson visited the police station, his statements were consensual, the Seventh Circuit panel concluded.

Petersen and Erato’s seizures began when detained and ended after police “handed them over to interviewers.” The Seventh Circuit panel held their claims failed, too. The panel explained it remained limited by those plaintiffs’ arguments.

Plaintiffs didn’t argue their detentions became arrests, nor that the detentions were Terry stops, “and they opted not to file a reply brief, forgoing the opportunity to respond to the specific Terry arguments detailed in Defendants’ response brief,” the Seventh Circuit said.

This advocacy vacuum left the reviewing court with no opinion whether handcuffing Petersen and Erato and transporting them by police vehicle was necessary, or whether the stops evolved into arrests.

Precedent advises “that using handcuffs, placing suspects in police cars, drawing weapons, and other measures of force more traditionally associated with arrests may be proper during an investigatory detention, depending on the circumstances.”

As the court concluded, “it does not matter whether the record supports [plaintiffs’] conclusions because the skeletal arguments on which [p]laintiffs rely are insufficient to support their Fourth Amendment claims.”

By the court’s affirming summary judgment, plaintiffs’ other arguments about an officer’s dismissal from the suit, immunity, and punitive damages fell away.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.