Summary judgment denied due to disputed facts in civil case
By Robert Cloud
A federal appeals court ruled May 27 that the disputed facts precluded summary judgment in a lawsuit over an officer shooting.
The Seventh Circuit U.S. Court of Appeals upheld a lower court’s decision that Waupaca County Sheriff’s Deputy Patrick McClone was not entitled to qualified immunity.
The lawsuit stems from a 2007 incident that resulted in McClone shooting Jerome L. Weinmann, of Scandinavia, four times in the face, hand and abdomen.
Weinmann required extensive medical treatment including partial amputation of his thumb and replacement of part of his jaw.
An independent investigation by the Brown County Sheriff’s Office in 2007 concluded that McClone was justified in shooting Weinmann, who was armed at the time.
After a state appeals court denied his appeal, Weinmann entered no-contest pleas to charges of felon in possession of a firearm and operating a firearm while intoxicated. A charge of intentionally pointing a weapon at an officer was dismissed but read into the record as part of a plea deal.
Judge Philip Kirk placed Weinmann on three years of probation and sentenced him to 120 days in jail, but stayed 90 days of the sentence.
Weinmann subsequently sued both McClone and Waupaca County in federal court seeking compensatory damages for the injuries he suffered and punitive damages for the use of excessive force.
In March 2014, the Eastern Wisconsin U.S. District Court granted summary judgment and dismissed the case against Waupaca County. However, it did not dismiss the case against McClone because of conflicting evidence that needed resolution.
Call for help
On Nov. 12, 2007, Weinamnn’s wife called 911 and reported that he was in their detached garage, threatening to commit suicide.
She also told Shane Bazile, the county communications officer, that her husband had not been drinking, that he had stopped taking his anti-depressant medication and that he may have a gun, but she did not know if he had access to ammunition.
While she was on the phone, Weinmann retrieved his son’s shotgun from a cabinet and loaded it, according to court documents.
A convicted felon and registered sex offender, Weinmann is prohibited from having a gun.
He then sat in a folding lawn chair and put the muzzle of the shotgun in his mouth with the butt resting on the floor, at least two times.
Unable to pull the trigger, Weinmann drank half a bottle of vodka. Court documents say he had a 0.162 blood-alcohol level at the time of the incident.
Most of the time, he rested the gun “on the lawn chair armrests, holding it with his right hand on the stock and his left hand on the barrel.”
McClone was dispatched to the house in rural Scandinavia. Deputy Craig Copes, who was farther away, was dispatched as backup.
Bazile informed McClone that Weinmann had a gun but that it was not known if he had access to ammunition.
McClone was the first to arrive. He looked inside the garage through two windows on the west side, but was unable to see Weinmann.
McClone also knocked on the door, but did not receive any response and did not attempt to communicate verbally with Weinmann.
Bazile called Weinmann’s cellphone. Weinmann refused to leave the garage and told Bazile he wanted the officer to “please leave the premises.”
Weinmann then terminated the call.
Seconds after Bazile informed him that Weinmann had ended the call, McClone heard “pattering or light banging of cupboard doors.” He believed the sound came from Weinmann’s body flailing about because he had hanged himself.
Fearing that Weinmann was committing suicide, McClone kicked the door open and entered the garage.
What happened next is under dispute.
Disputed facts, constitutional rights
Weinmann says that just before McClone entered the garage, he lifted the shotgun, banged it against his forehead, then placed it across his lap, resting on the “armrests or held just above them.” He denies pointing the gun at McClone and contends that the officer’s use of force was excessive and unconstitutional.
McClone says that Weinmann had the gun raised to his shoulder and pointed in his direction. He fired four shots at Weinmann because he feared for his life.
McClone sought a summary judgment to dismiss the case because police officers have qualified immunity from lawsuits. They cannot be sued as long as their conduct does not violate a person’s constitutional rights.
An officer’s use of deadly force is not excessive if his life is in danger.
“If Jerome had a 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,” the appeal court said. “But, to repeat, the facts are disputed.”
To determine whether McClone’s use of force was constitutional, the disputed facts must be resolved.