This is decision by Federal Court Judge Frederick Kapala concerning a wrongful death suit by a man killed during a call by the McHenry County Sheriff’s Department.
On a 2006 Wonder Lake domestic dispute call, then-Deputy Zane Seipler shot a man with a bean bag gun three times as the man charged other deputies with a knife. The man had expressed his intention to commit suicide and the deputies were trying to convince him to relinquish the knives in his possession.
Defendants’ motions for summary judgment   are granted as to Counts I-V. Plaintiff’s state law claims, Counts VI-VIII, are dismissed without prejudice. Defendants’ duplicative motion for summary judgment  is denied as moot. This case is closed.
Plaintiff, Kelly Dooley-Trewartha, as Independent Administrator of the Estate of David Maxson, deceased, has sued McHenry County Deputy Sheriffs
- Zane Seipler
- Theresa Harper
- J. Kozio
- T. Matteson, and
- J. Tutt; as well as
- Wonder Lake Officer Zurick,
alleging that they violated Maxson’s constitutional rights and committed various state law torts. Before the court are defendants’ motions for summary judgment. For the reasons that follow, the motions are granted
I. BACKGROUND [FN1]
At 3:45 p.m. on September 16, 2006, Maxson’s girlfriend, Patricia Ercoli, called 911 and reported that her boyfriend was drunk and throwing things. Ercoli said that she could not let her boyfriend know she was calling 911 because if he found out he would “grab a knife.”
When the dispatcher asked Ercoli if she was outside the house, Ercoli replied, “I’m going to go right now. I got to go, if he sees me, he’ll get violent.”
Ercoli called 911 again at about 3:58 p.m. and said:
when police come to 4818, they’ve got to sneak up. He’s pulling out knives now. He will kill himself. It’s getting real bad. He’s busting things. You can’t let him see you pull in the driveway. You’ve got to sneak around somehow and surprise attack him. I’m telling you. There’s going to be a murder here.
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FN 1 The background facts are taken from the parties’ Local Rule 56.1 statements of fact and the attached exhibits. If disputed, facts are viewed in a light most favorable to plaintiff.
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Immediately thereafter, defendants were dispatched to Maxson’s residence. The dispatcher described the call as a domestic disturbance involving a suicidal subject, and initially reported that Ercoli said she was trying to get out of the residence as her suicidal boyfriend was getting violent and had knives.
When defendants arrived, Ercoli said that Maxson had been drinking all day, had earlier held her in the house against her will, and was now alone inside the house with multiple knives. Ercoli also said that Maxson did not like the police and threatened to kill himself if he saw the police.
Ercoli further indicated that Maxson had a history of mental illness, was not taking his medications, and had tried to kill himself in the past. Ercoli described the layout of the house and said that Maxson was likely on the couch in the rear of the home near the back porch.
When the officers reached the back porch, they looked through sliding glass doors and saw Maxson lying on a couch, holding two knives in his hands, and at times holding one knife to his throat and the other knife to his stomach or leg. There were other knives and scissors beside Maxson on a small coffee table and on the floor.
Koziol told Harper to make contact with Maxson because she was trained in crisis intervention. Harper stood outside an open sliding glass door and spoke to Maxson through the closed screen door.
Harper asked Maxson in a calm voice if he wanted to talk about the situation with his girlfriend, said that the officers were there to help him, and asked him to put down the knives so no one would get hurt. Maxson said,
“fuck you, I’m not putting the knives down.”
Maxson told Harper that he wanted the officers to get out of his house and leave him alone because he wanted to kill himself.
Maxson threatened to kill one of the officers or himself if they came inside.
Maxson refused to put down the knife he was holding to his throat and continued to say he wanted to kill himself.
While Harper was trying to converse with Maxson, Koziol went back to his car and got a Less Lethal beanbag shotgun.
After Koziol returned to the porch, Harper spoke to Maxson for about twenty minutes more but she was unable to build a rapport with him, was not getting anywhere, and believed she had exhausted all possibilities.
Then Koziol, who had experience dealing with these situations and had been successful in the past, took over and tried to establish a dialog with Maxson, but Maxson said
“just leave me so I can kill myself.”
A few minutes after Koziol started talking to Maxson, Maxson threw a knife at a wall, and stabbed a couch with another knife.
After Maxson threw the knife, he picked up another knife and held it first to his abdomen then to his throat, and said to Koziol,
“if you come into my house like last time, I’ll kill you.”
Maxson asked for a cigarette and Koziol said he would get him one if he stayed calm and they would not have to fight if he put the knife down. Maxson said, “fuck you,” got off the couch, raised the knife in his hand, and walked up to the screen door yelling, “you assholes, leave.”
The officers yelled at Maxson to drop the knife, but he did not comply.
Koziol shouldered the beanbag gun, and told Maxson to drop the knife.
“shoot me with a real gun, not that orange plastic gun.”
Koziol said he did not want to shoot him, he just needed Maxson to calm down.
Maxson turned away and walked back to the Koziol left to get Maxson a cigarette and handed the beanbag gun to Seipler.
Seipler tried to engage in a dialog with Maxson who then noticed Harper and Tutt at a side door.
Armed with a knife, Maxson rushed toward Harper and Tutt, screaming obscenities.
Harper and Tutt backed away from the door and drew their firearms. Maxson shut the door and locked it but then came back, opened the door, took one step out, and waved his knife within three and a half feet of Harper and Tutt, who backed away with their firearms raised while shouting at Maxson to drop the knife.
Seipler raised the beanbag gun, stepped through the screen door, and yelled at Maxson to stop and drop the knife.
Maxson retreated inside, slammed the door, and locked it.
Seipler stepped back outside, but continued to tell Maxson to calm down and to drop the knife.
Next, Maxson went into a bedroom with knives in his hand and closed the door.
Defendants heard Maxson yelling and then sounds of rustling or things being moved before it became quiet.
Koziol entered the house, picked up several knives that were on the couches, tables, and chairs, and
handed them through the door to Matteson, who remained outside on the deck.
Seipler entered the house and positioned himself in front of the bedroom door. Harper and Zurick also entered the house.
A couple of minutes after the officers entered the house, Koziol advised Maxson that they were in the house.
Maxson opened the door and came out of the bedroom, screaming, yelling, and moving fast. He held one or two knives in his hands in such a way that he could stab or attack the officers.
He put the knife to his throat and yelled he was going to kill himself, jabbed the knife in the direction of the officers, and said he was going to kill the officers.
The officers screamed “drop the knife” repeatedly.
Maxson made his way around a table moving quickly toward Seipler, and Seipler shot a round from the beanbag gun at Maxson’s chest.
The beanbag had little effect on Maxson and he did not let go of the knife.
Instead, he slammed his right fist on the table with the knife pointed in an upward position and said,
“fuck you, I’m going to kill you.”
Seipler shot Maxson with a second beanbag hitting him just behind his shoulder as Maxson moved toward Koziol with his right hand raised over his head holding the knife.
The officers continued to yell “drop the knife” as Maxson turned and moved quickly towards Koziol with the knife raised in his hand.
Koziol began to draw his firearm and back away from Maxson. Maxson took a few steps towards Koziol with the knife raised in his hand and was between one and eight feet away from Koziol when Seipler fired a third beanbag that hit Maxson in the side of the head. Maxson slumped to the ground about two or three feet away from Koziol and the knife fell out of his hand.
When Seipler fired the third beanbag, Koziol had raised his firearm and was about to shoot Maxson.
Paramedics took Maxson away and he never regained consciousness.
In her third amended complaint, plaintiff brings claims pursuant to 42 U.S.C. § 1983 for illegal entry against Seipler, Harper, and Koziol (Count I); excessive force against Seipler (Count II); false arrest against all six defendants (Count III); failure to supervise against Koziol (Count IV); and failure to intervene against all six defendants (Count V). Plaintiff also brings state law claims for wrongful death (Count VI); survival (Count VII); and intentional infliction of emotional distress (Count VIII) against the five deputies.
Summary judgment is proper where “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A. Entry of the Home –Count I
Police officers may not constitutionally enter a home without a warrant to effectuate an arrest, absent consent or exigent circumstances, even if they have probable cause. Payton v. New York, 445 U.S. 573, 585-90 (1980). A recognized exception to the warrant requirement is the exigent circumstance resulting from law enforcement’s need to provide emergency assistance to an occupant of a home. Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552, 1558 (2013). This exigency exists when officers reasonably fear for the safety of a person inside the premises, even if that person’ssafety is threatened by the possibility of suicide. Fitzgerald v. Santoro, 707 F.3d 725, 730-31 (7th Cir. 2013). “It would be silly to suggest that the police would commit a tort by entering to determine whether violence has just occurred or is about to (or soon will) occur,” and this “is no less true when the violence is directed at one’s self and the tort is of the constitutional variety.” Id. at 731 (alterations and quotation marks omitted). “The key question in a warrantless entry case is whether the circumstances as they appeared at the moment of entry would lead a reasonable, experienced law enforcement officer to believe that someone inside the house required immediate assistance.” Id.(alteration, emphasis, and quotation marks omitted).
Plaintiff takes the untenable position that no exigent circumstances existed to justify the warrantless entry into Maxson’s home because, at the moment officers entered the home, the circumstances would not lead a reasonable officer to believe that someone inside required immediate assistance.
The undisputed facts clearly demonstrate that the opposite is true.
The dispatcher described the call as a domestic disturbance involving a suicidal subject who was getting violent and had knives. Upon arrival, officers learned from Ercoli that Maxson had a history of mental illness, was not taking his medication, and had tried to kill himself in the past. They also learned that Maxson had been drinking all day, was alone inside the house with knives, and had threatened to kill himself if he saw police. When defendants peered into the home they saw Maxson on the couch holding knives to his throat, stomach, and legs. Defendants’ efforts to speak to Maxson and get him to put down the knives were unsuccessful. Defendants heard Maxson threaten his own life, as well as their lives, multiple times as well as his repeated refusals to put the knives down.
Defendants also saw Maxson throw a knife into the wall, stab the couch, and advance with a knife on Harper and Tutt causing them to back up and draw their weapons in apprehension of being struck with Maxson’s knife. Defendants then watched Maxson go into the bedroom with knives in his hands.
These facts known to defendants prior to their entry were more than sufficient to support a reasonable police officer’s belief that Maxson’s safety was threatened by the possibility of suicide, thereby creating an exigency justifying the warrantless entry. See id. at 730-31. Plaintiff argues that Fitzgerald is factually distinguishable from this case because the officers in Fitzgerald could not observe the plaintiff but, rather, had to rely solely on their dispatcher’s belief that the plaintiff might hurt herself. In contrast, plaintiff maintains that the defendants in this case were able to directly observe Maxson and at the time that they entered the home he was not threatening himself or anyone else, but rather had quietly retreated to a bedroom. However, defendants heard and saw Maxson threaten his own life multiple times before they decided to enter the premises. The fact that Maxson had retreated into a bedroom where he momentarily quieted down did not dispel the risk that Maxson would hurt himself, in fact, it arguably increased the exigency. Nor were defendants required to wait for Maxson to actually hurt himself. See Sherman v. Four Cnty. Counseling Ctr., 987 F.2d 397, 402 (7th Cir. 1993) (“Police officers should not be forced by fear of suit to wait for a mentally unstable person to carry out threats before intervening.”).
The defendants in this case had significantly more factual support on which to conclude that someone inside the premises may harm themself than did the officers in Fitzgerald. In Fiztgerald, the officers only knew that the woman inside had called police, she sounded intoxicated, she threatened suicide, and she abruptly hung up the phone just as officers were approaching the building. 707 F.3d at 732. The Seventh Circuit easily concluded that these facts, “from the officers’ perspective, . . . paint an objectively reasonable picture of an exigent circumstance.” Id.
Plaintiff also argues that defendants’ deposition testimony shows that they entered to gain a tactical advantage, not to protect Maxson. This argument fails because Fourth Amendment analysis utilizes an objective standard such that the officers’ subjective motivations for entering are irrelevant. See Whren v. United States, 517 U.S. 806, 813 (1996). In addition, gaining a tactical advantage by removing the knives which were strewn about the premises and by placing officers in a better position to apprehend Maxson is not inconsistent with protecting him from himself. Thus, defendants are entitled to summary judgment on plaintiff’s unlawful entry claim in Count I.
B. Use of Force –Count II
The parties dispute whether Seipler’s use of force was reasonable under the circumstances.
The court notes initially that it is unclear if the use of a beanbag gun constitutes deadly force. See Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003) (stating that it is hard to know if beanbag rounds should be classified as deadly force). The court acknowledges the literature indicating that specialty impact munitions have the potential for causing serious injury or death. However, for purposes ofthis analysis, even assuming that it was deadly force, plaintiff has failed to raise a genuine issue of material fact regarding Seipler’s justification for shooting Maxson with the beanbag gun.
The Fourth Amendment, which prohibits unreasonable seizures, is used to analyze claims that law enforcement officers used excessive force. Marion v. City of Corydon, Ind., 559 F.3d 700, 705 (7th Cir. 2009). “Police may use even deadly force if the suspect poses a threat of serious physical harm, either to the officer or to others. If the suspect threatens the officer with a weapon that risk has been established.” Bell, 321 F.3d at 639 (alteration, citations, and quotation marks omitted). In this case it is undisputed that Maxson was advancing on Koziol with a raised knife and came within eight feet of Koziol at the moment Seipler shot the third beanbag at Maxson.
Based on this undisputed evidence, no reasonable jury could conclude that plaintiff did not pose an immediate threat of death or serious bodily injury to Koziol and therefore the use of deadly force was justified.
Parenthetically, the court notes that Koziol had drawn his firearm and was about to use deadly force when Seipler used a weapon not intended to be lethal, but rather is “designed to stun and inflict blunt trauma, knocking a person down but not penetrating the skin or damaging internal organs more severely than a kick or punch would.” Bell, 321 F.3d 639. Unfortunately, the weapon proved fatal in this instance, but Maxson’s civil rights were not violated.
Plaintiff makes the statement that no knife appears in the crime scene photographs of the proximity where Maxson came to rest. This observation does not vitiate the undisputed facts stated in defendants’ Local Rule 56.1 statement of facts which clearly state that Maxson emerged from the bedroom with two knives in his hands, ultimately moved toward Koziol with a knife raised in his hand, and that he slumped to the floor as a knife fell out of his hand. Because plaintiff has not controverted these facts in her Local Rule 56.1(b) response to defendants’ statement of facts they are deemed admitted. See Cracco v. Vitran, Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); L.R. 56.1(b)(3)(C) (“All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party.”). Moreover, plaintiff has not provided these photographs to the court, but even if they are as described they would not refute the testimony of defendants that Maxson had a knife. They would merely show that the knife was not in the photographs for reasons unknown.
Plaintiff also argues that a genuine issue of material fact exists as to whether defendants’ own unreasonable conduct created the danger that Maxson presented to them and therefore summary judgment is precluded under Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993). In Starks, the facts viewed in plaintiff’s favor showed that the defendant police officer stepped in front of a fleeing suspect’s moving car without giving the suspect time to stop the car and the officer shot the suspect in order to protect himself. Id. at 233-34. The Seventh Circuit held that it was unreasonable for the officer to step in front of the moving car and, therefore, that action could not “support a reasonable officer’s belief that it was permissible to use deadly force to seize” the suspect. Id. at 234. Starks establishes the rule that an officer’s conduct which does not give the individual he is apprehending an opportunity to avoid presenting a deadly threat to the officer may not utilize deadly force to protect himself from that deadly threat. However, the rule is not applicable in this case because the undisputed evidence establishes that defendants yelled at Maxson over and over to drop his knife after he emerged from the bedroom, he had ample opportunity to do so, but instead he charged at Koziol with a knife. Consequently, Starks does not help plaintiff, and Seipler is entitled to summary judgment on the excessive force claim in Count II.
C. False Arrest –Count III
Probable cause is an absolute defense to the § 1983 false arrest claim alleged in Count III. See Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 713-14 (7th Cir. 2013). By the time Seipler successfully subdued Maxson with the third beanbag, the officers had probable cause to arrest him for aggravated assault. See 720 ILCS 5/12-2(b)(4) (“A person commits aggravated assault when, in committing an assault, he or she knows the individual assaulted to be . . .[a] peace officer . .performing his or her official duties.”). Plaintiff maintains that there is no indication that at the time in question any defendant believed that they had probable cause to arrest Maxson for any offense.
Even if that is true, however, it is of no consequence because “[d]etermining whether an officer had probable cause to arrest entails a purely objective inquiry; the officer’s subjective state of mind and beliefs are irrelevant.” Abbott, 705 F.3d at 714 (citing Whren, 517 U.S. at 813)). In addition, the facts known to the officers at the time they entered the premises provided objectively reasonablegrounds for believing that Maxson was subject to seizure to effectuate an involuntary mental health commitment. See 405 ILCS 5/3-606 (“A peace officer may take a person into custody and transport him to a mental health facility when the peace officer has reasonable grounds to believe that the person is subject to involuntary admission and in need of immediate hospitalization to protect such person or others from physical harm.”). For these reasons, defendants are entitled to summary judgment on Count III.
D. Supervisor Liability –Count IV
Because there is no evidence of a constitutional violation, Koziol cannot be liable as a supervisor for failure to train or otherwise. See Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 597 (7th Cir. 1997) (“Neither the City nor the police officers’ supervisor can be held liable on a failure to train theory or on a municipal policy theory absent a finding that the individual police officers are liable on the underlying substantive claim.”). Thus, summary judgment for Koziol on Count IV is warranted.
E. Failure to Intervene –Count V
Police officers are liable for failing to prevent another law enforcement officer from inflicting excessive force against a citizen if the officers “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 enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994).
Based on the foregoing analysis, there is insufficient evidence on this record to create a genuine issue of material fact that excessive force was being used on Maxson, he was being arrested without probable cause, or his constitutional rights were being violated. As a result, defendants had no duty to intervene. Consequently, defendants are entitled to summary judgment on Count V.
F. State Law Claims –Counts VI-VIII
Having concluded that defendants are entitled to summary judgment on plaintiff’s pending federal claims, the court declines to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3); see also Miller v. Herman, 600 F.3d 726, 738 (7th Cir. 2010) (noting that although “supplemental jurisdiction persists even if all the claims giving rise to original jurisdiction have been dismissed,” the general rule is that “when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits” (quotation marks omitted)). Accordingly, the claims raised in Counts VI through VIII of plaintiff’s complaint are dismissed without prejudice.
For the foregoing reasons, the court grants defendants’ motions for summary judgment as to
Counts I through V, and dismisses Counts VI through VIII without prejudice.
Date: 2/18/2014 ENTER: