Mason-Funk v. City of Neenah
Mason-Funk v. City of Neenah
Opinion of the Court
Brian Flatoff's decision to take individuals hostage at a motorcycle shop in Neenah, Wisconsin, had tragic consequences for Michael Funk. After managing to escape from Flatoff, Funk was shot and killed in the alleyway behind the shop by two officers of the Neenah Police Department (NPD), Craig Hoffer and Robert Ross. Unfortunately, they mistakenly believed Funk was Flatoff.
Funk's wife, Theresa Mason-Funk, brought this lawsuit under
I. BACKGROUND
At approximately 8:35 a.m. on December 5, 2015, Flatoff entered Eagle Nation Cycles *506in 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.
*507The 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.
His wife, both individually and in her capacity as the personal representative of Funk's estate, brought this lawsuit under
II. DISCUSSION
Summary judgment is appropriate if the moving party has shown there is "no genuine dispute as to any material fact," and is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(a). We review a grant of summary judgment de novo , construing all factual disputes and drawing all reasonable inferences in favor of the non-moving party. Kemp v. Liebel ,
Defendants contend that they are entitled to qualified immunity from the excessive force claims. "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 , --- U.S. ----,
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 , --- U.S. ----,
Moreover, the Supreme Court has cautioned lower courts "not to define clearly established law at a high level of generality." al-Kidd ,
Finally, we note that "general statements of the law are not inherently incapable of giving fair and clear warning to officers." Id. (quoting White ,
Mason-Funk argues that existing case law put Officers Hoffer and Ross on notice that their conduct and use of deadly force was unconstitutional. More specifically, she contends that the officers were on notice (1) that they had a constitutional obligation in hostage situations to protect innocents and distinguish between the suspect and innocents; (2) that Funk's conduct did not create an imminent threat justifying the use of deadly force; and (3) that deadly force may not be used without providing a warning, except in extraordinary circumstances.
We first examine Supreme Court precedent and precedent from this Circuit to determine whether a right was clearly established *509at the time of violation. Gill v. City of Milwaukee ,
In support of Garner 's general rules, Mason-Funk directs us to decisions where courts denied qualified immunity to officers who used deadly force on an armed suspect despite not being in imminent harm. 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.
In arguing that Officers Hoffer and Ross were on notice to distinguish between innocents and suspects, and to provide a warning in a hostage situation, Mason-Funk cites Idaho v. Horiuchi ,
No existing precedent squarely governs the facts and circumstances that confronted Officers Hoffer and Ross. See Kisela ,
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 *510they 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.
III. CONCLUSION
We AFFIRM the district court's grant of summary judgment in favor of Defendants.
Reference
- Full Case Name
- Theresa MASON-FUNK v. CITY OF NEENAH
- Cited By
- 16 cases
- Status
- Published