Doxtator v. O'Brien

540 F.Supp.3d 815

Susan DOXTATOR, et al., Plaintiffs,

v.Erik O'BRIEN, et al., Defendants.

Case No. 19-C-137

United States District Court, E.D. Wisconsin.

Signed May 19, 2021

Forrest K. Tahdooahnippah, John F. Huerter, Vernle C. Durocher, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiffs.

Ann C. Wirth, Gregg J. Gunta, Jasmyne M. Baynard, John A. Wolfgang, Kyle R. Moore, Gunta Law Offices SC, Wauwatosa, WI, for Defendants Erik O'Brien, Andrew Smith, City of Green Bay.

Benjamin A. Sparks, Samuel C. Hall, Jr., Crivello Carlson SC, Milwaukee, WI, Jose Antonio Castro, Spencer Fane LLP, Denver, CO, for Defendants Heidi Michel, Brown County, Todd Delain, Joseph P. Mleziva, Nathan K. Winisterfer, Thomas Zeigle.

DECISION AND ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

William C. Griesbach, United States District Judge

Jonathon Tubby was fatally shot by a Green Bay police officer after he was transported to the Brown County Detention Center, or jail, following his arrest on the evening of October 19, 2018. The officer who shot Tubby claims he thought Tubby had a gun and posed a serious threat to himself and others. Plaintiffs, Special Administrators of Tubby's estate, dispute the officer's account and claim that the shooting is reflective of a widespread practice within the Green Bay Police Department of excessive and often deadly force enabled by a culture of dishonesty. Plaintiffs also allege that various members of the Brown County Sheriff's Office violated Tubby's constitutional rights by failing to intervene before the fatal shots were fired, failing to train officers to avoid such a situation, and creating the danger that caused Tubby's death. Plaintiffs seek damages under 42 U.S.C. § 1983 for violation of Tubby's constitutional rights by the City of Green Bay, Chief of Police Andrew Smith, and Officer Erik O'Brien (the Green Bay Defendants) as well as Brown County, Sheriff Todd Delain, Captain Heidi Michel, Deputy Joseph Mleziva, Deputy Nathan Winisterfer, and Lieutenant Thomas Zeigle (the Brown County Defendants). The third amended complaint also asserts common law claims for battery and negligence, and state law statutory claims against the City and County for indemnification of officers for personal liability incurred while acting in the scope of their employment. The Court has jurisdiction over Plaintiffs’ § 1983 claims under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. The case is before the Court on Defendants’ motions for summary judgment. For the following reasons, Defendants’ motions will be granted, and the case will be dismissed.

BACKGROUND

On the evening of October 19, 2018, Green Bay Police Department (GBPD) Officer Colton Wernecke and his field training officer, Erik O'Brien, were on patrol in the City of Green Bay. At approximately 7:24 p.m., Officer Wernecke observed a vehicle with an unregistered license plate drive through a red light. He decided to initiate a traffic stop, activated his overhead lights, and followed the vehicle. Green Bay Defs.’ Proposed Findings of Fact (GBPFOF) ¶ 15, Dkt. No. 118. The vehicle continued to drive and turned into the parking lot of the Hyatt Regency hotel. The vehicle drove through the parking lot despite Officer Wernecke turning on the squad car's overhead lights, shining a spotlight on the vehicle, and blipping the squad car's siren. Id. ¶ 16. The vehicle eventually pulled into a parking space. Although the occupants of the vehicle initially gave false identifications, id. ¶¶ 24–25, they were ultimately identified as Jonathon Tubby, who was driving the vehicle, and his aunt, Theresa Rodriguez, who was in the passenger seat. Id. ¶ 17. A records check disclosed active warrants on each.

Officer O'Brien requested a second squad car to provide cover for the officers, and GBPD Officer Tyler Haack responded. Officers Haack and O'Brien approached the passenger side of the vehicle while Officer Wernecke approached the driver's side. Id. ¶ 20. Officer Haack observed what he suspected to be marijuana, and Tubby and Rodriguez were ordered to exit the vehicle. Id. ¶ 21. Officer Wernecke handcuffed Tubby behind his back and searched him while Officer O'Brien observed. Tubby was then placed in the rear seat of Officer Wernecke's squad, while Rodriguez was handcuffed and placed in Officer Haack's squad. Officer Haack then left to transport Rodriguez to the Brown County Jail, while Officers O'Brien and Wernecke stood by with Tubby's vehicle to wait for a tow truck. Id. ¶¶ 25–27.

At 7:35 p.m., Tubby was placed in the back of Officer Wernecke's squad car and seat belted in with his hands handcuffed behind his back. Id. ¶ 28. The squad's internal camera shows that at 7:40:36, Tubby moved his hands under his butt behind his bent legs as he remained seated, id. ¶ 29, and by 7:41, he maneuvered one leg through his handcuffed arms and began putting his right hand up his shirt. He then reached his hand down into his pants. Id. ¶ 30. At 7:43, Tubby removed his seat belt, id. ¶ 31, and moved his other leg out from under his handcuffed arms. At that time, both of Tubby's hands were in front of his body, still handcuffed together. Tubby put his right hand under his shirt, and he bent forward and manipulated his hand up under his shirt. Id. ¶ 32.

At 8:10:56, Officer Wernecke transported Tubby to the Brown County Jail to be booked on possession of marijuana and obstructing charges, as well as for an active warrant. Id. ¶ 33. The transport to the Brown County Jail took approximately 12 minutes. Id. ¶ 34. Officer O'Brien reported that Tubby remained quiet during the transport to the Jail. Tubby was leaning forward with his hands in front of his body during the transport and upon his arrival at the sally port. Id. ¶ 35.

Officers Wernecke and O'Brien entered the sally port of the Brown County Jail at approximately 8:22 p.m. Id. ¶ 36. The sally port is an enclosed area in the Jail that provides the secure transition of inmates from the custody of police officers to the intake area of the Jail. The sally port overhead door is controlled by the Jail's master control. Id. ¶ 37. Before parking the squad car, Officer O'Brien asked Tubby if he had anything on him. Tubby responded, "no." Id. ¶ 36. After parking the squad car and turning off the engine, Officers O'Brien and Wernecke exited the squad car and placed their gear and weapons in the trunk of the car pursuant to the Jail's policy that prohibits officers from bringing weapons into the Jail. Id. ¶ 38.

When Officer Wernecke went to open the rear driver's side door of the squad car to remove Tubby, he realized that Tubby's hands were not behind him and were balled up under the front of his shirt. Id. ¶ 39. Officer Wernecke asked Tubby to get out of the squad car, but Tubby did not exit. Id. ¶ 40. When Officer Wernecke told Tubby to "step out," Tubby remained in the squad car with his hands under his shirt. Officer Wernecke asked, "Stepping out?" and then instructed, "Come on, bring your foot out," as he reached for Tubby's ankle. Tubby flinched and backed further into the squad car, still bent forward. Id. ¶ 41.

Officer O'Brien came around from the back of the squad car and looked in the open door. He immediately noticed that Tubby's hands were no longer behind his back and that his hands were under his clothes. Brown County Defs.’ Proposed Findings of Fact (BCPFOF) ¶ 79, Dkt. No. 111. At that time, Officer O'Brien observed what he believed to be the barrel of a gun pressing against the inside of Tubby's shirt. GBPFOF ¶ 44. At 8:25:08, Officer O'Brien ordered, "Jonathon, bring your foot out." Id. ¶ 45. Officer Wernecke attempted to pull Tubby's foot out of the car, and Tubby stated "don't" and then "I'll fucking do it." Pls.’ Add'l Proposed Findings of Fact to Green Bay Defs.’ Mot. for Summ. J. (PPFOFGB) ¶ 23, Dkt. No. 135; Pls.’ Resp. to GBPFOF ¶ 45, Dkt. No. 135.

Believing that Tubby was armed and suicidal, GBPFOF ¶ 46, Officer O'Brien immediately slammed the squad car's door closed with Tubby still inside and told Officer Wernecke, "I think he's got a gun." Id. ¶ 48. Officer O'Brien asked Officer Wernecke what he was thinking, and Officer Wernecke responded that he thought he must have missed something in searching Tubby. Id. ¶ 49. Once Officer O'Brien shut the door, Tubby was locked inside the car. Pls.’ Add'l Proposed Findings of Fact to Brown County Defs.’ Mot. for Summ. J. (PPFOFBC) ¶ 1, Dkt. No. 136.

Officer Wernecke ran to the booking window to alert jail staff that something was wrong. GBPFOF ¶ 50. Officer O'Brien retrieved his handgun from the trunk of the squad car, and he and Officer Wernecke retreated behind the transport van parked next to the squad car. Id. ¶ 51. Officer O'Brien radioed police dispatch requesting that another unit be sent to the sally port because "it looked like" Tubby had "something" in his hand and was refusing to exit the squad car. Id. ¶ 52. Officer O'Brien later reported over the radio that the male subject had something in his shirt pointed up at his chin and requested that an officer bring a shield from the Bearcat. A few minutes later, Officer O'Brien advised dispatch that Tubby's hands were up by his face, that Tubby was facing the back window, and that the windows were too fogged up to see if there was anything in his hands. Although Officer O'Brien did not state over the radio that he saw a gun, PPFOFGB ¶ 25, he told various responding officers that he thought Tubby had a gun. BCPFOF ¶ 84. That the officers believed Tubby had a gun is also apparent from their reactions and the steps they then took to avoid being shot.

The windows of the squad car began to fog up, and the officers could not see inside the squad car except for some vague movement in the back seat. GBPFOF ¶ 54. At 8:28 p.m., officers yelled to Tubby, "Jonathon, put it down," and Tubby replied, "Fuck you. I'll do it." Id. ¶ 55. At 8:29 p.m., Tubby stated, "I'll fucking do it at...