On May 27, 2015, the Seventh Circuit court of appeals upheld a federal court's denial of a motion for summary judgement based on qualified immunity filed by a police officer who shot a man in an alleged excessive use of force.
A Wisconsin woman called 911 and reported that her husband, Jerome L. Weinmann, drank half a bottle of vodka, went to the garage and put the barrel of a shotgun in his mouth. She did not know if the gun was loaded or if he had access to ammunition, but she feared he would commit suicide.
This information was relayed to Waupaca County Deputy Patrick McClone, who was dispatched to the Weinmann residence. Upon his arrival, McClone looked through two of the garage's many windows but was unable to see Weinmann. According to McClone, he deduced Weinmann's location from the one part of the garage he could not see through the windows and, without looking in any of the other windows, knocked on the garage door. He received no response to his knocks, but heard a noise like "pattering on cupboard doors" so, without trying to talk to McClone, he kicked in the door and entered the garage. Within seconds, he shot Weinmann four times severely injuring him.
The Weinmanns filed a federal civil rights action pursuant to 42 U.S.C. § 1983 against McClone alleging excessive use of force. Weinmann said he did not hear any knocks on the door and when McClone kicked in the door, he was seated in a lawn chair with the shotgun laying across his lap neither pointed at him or McClone. He claimed he was repeatedly shot without having presented a threat to anyone.
McClone filed a motion for summary judgment alleging it was undisputed that he perceived that the shotgun was pointed in his direction. The district court denied the motion and McClone filed an interlocutory appeal.
The Seventh Circuit held that Weinmann had a right not to be shot if he was not presenting a threat to harm another person. The court held that, if Weinmann's depiction is correct, McClone shooting him would plainly be excessive use of force. Although McClone's perception of the direction the gun was pointed may have been undisputed, the actual direction the gun was pointed in was in dispute. Because the actual direction the gun was pointed would determine whether McClone’s perception was reasonable, the direction the gun was pointed was a material fact in dispute precluding summary judgment. Therefore, the judgment of the trial court was affirmed and the case returned to that court for further proceedings. See: Weinmann v. McClone, 7th Cir., No. 14-1794.
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Related legal case
Weinmann v. McClone
|7th Cir., No. 14-1794.
|Court of Appeals