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Weinmann v. McClone

United States District Court, E.D. Wisconsin

October 2, 2015


          For Jerome L Weinmann, Susan M. Weinmann, Plaintiffs: Amy M Risseeuw, John C Peterson, Peterson Berk & Cross SC, Appleton, WI.

         For Patrick McClone, Waupaca County, Defendants: Michele M Ford, Crivello Carlson SC, Milwaukee, WI.


         William C. Griesbach, Chief United States District Judge.

         Plaintiffs Jerome and Susan Weinmann brought this action under 42 U.S.C. § 1983 for injuries sustained by them when Jerome was shot by Deputy Patrick McClone of the Waupaca County Sheriff's Department. Deputy McClone shot Jerome while responding to a call that Jerome had gone into his garage with a gun intending to shoot himself. The Weinmanns allege that Deputy McClone used excessive force against Weinmann in violation of his rights under the Fourth Amendment. They also asserted a claim against Waupaca County, but that claim was dismissed on summary judgment. This order addresses several motions in limine filed by McClone and taken under advisement following a final pretrial conference held September 25, 2015.

         I. Entry to Garage

         McClone moves to preclude any " claim, statements or argument challenging Deputy McClone's entry into the detached garage where Weinmann was situated" on the night in question. (Mot. ¶ 3, ECF No. 48.) McClone argues any such claim, statement or argument would be improper because the Weinmanns have not pled a claim for wrongful entry.

         The Weinmanns' claim is for excessive force under the Fourth and Fourteenth Amendments. Such a claim requires showing Deputy McClone used objectively unreasonable force, considering all of the circumstances surrounding the use of force. Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). That such circumstances here include the manner in which McClone entered the garage is clear from the Seventh Circuit's decision affirming this court's denial of McClone's summary judgment motion. See Weinmann v. McClone, 787 F.3d 444, 451 (7th Cir. 2015) (" Kicking down a door and immediately shooting a suicidal person who is neither resisting arrest nor threatening anyone save himself is an excessive use of force. . . . McClone did not look through the other windows into the garage to see what Jerome was doing, nor did he try to talk to him. Instead, within three minutes of arriving at the scene, McClone opened fire. Either viewed as so plainly excessive that no analogous case is needed, or viewed in light of existing authority, this was an excessive use of force." ). Of course, the Seventh Circuit's decision was based on a factual record in which McClone conceded certain things for purposes of summary judgment on his qualified immunity defense. At trial, McClone will be able to present his side of the story. The Weinmanns will too, however, and the circumstances leading up to the use of force, including McClone's entry to the garage an instant before he discharged his weapon, are relevant to their claim.

         McClone also argues that " any claims, statements or arguments that the entry itself by law enforcement into Plaintiffs' garage, or the subsequent search or seizure of his person or evidence, were illegal, or were improper" should be precluded by collateral estoppel arising from a state trial court order denying Jerome Weinmann's motion to suppress in a prior criminal case. Jerome was charged with being a felon in possession of a firearm following the incident in question. He moved to suppress evidence including the gun, arguing Deputy McClone should have obtained a warrant before entering the garage. Waupaca County Circuit Court Judge Phillip Kirk rejected this argument, finding instead that McClone's actions were reasonable and his entry to the garage was lawful based on exigent circumstances. (Hearing Tr. at 31, Ford Aff. Ex. H, ECF No. 50-8.) Weinmann ultimately pled no contest to and was convicted of this offense, and he did not appeal the denial of his motion to suppress. McClone argues that, given Judge Kirk's ruling on the motion to suppress, the Weinmanns are precluded from presenting evidence or arguing to the jury on a number of the underlying issues before Judge Kirk, including how long McClone was on the scene before entering the garage, whether he got a search warrant, and more. ( See Mot. ¶ 4(a)--( l ).)

         " [F]ederal courts must give a state court judgment the same preclusive effect that it would receive under state law." Wilhelm v. County of Milwaukee, 325 F.3d 843, 846 (7th Cir. 2003). Under Wisconsin law:

Issue preclusion addresses the effect of a prior judgment on the ability to re-litigate an identical issue of law or fact in a subsequent action. In order for issue preclusion to be a potential limit on subsequent litigation, the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and be necessary to the judgment. If the issue actually has been litigated and is necessary to the judgment, the circuit court must then conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand.

Mrozek v. Intra Financial Corp., 2005 WI 73, ¶ 17, 281 Wis.2d 448, 699 N.W.2d 54 (internal citations omitted).

         In this case, the issue for trial--whether Deputy McClone's use of deadly force was excessive--was not " actually litigated" in the previous case, where the issue on the motion to suppress was about the reasonableness, for Fourth Amendment purposes, of McClone entering the garage without first obtaining a warrant. These are clearly different issues. To say that exigent circumstances existed that justified McClone's entry to the garage without first obtaining a search warrant is not the same as saying that McClone did not use excessive force in shooting Weinmann upon entering the garage. As the Seventh Circuit explained in affirming the court's denial of defendant's motion for summary judgment, determining whether a state officer's use of force is excessive for Fourth Amendment purposes requires a balancing of " the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." 787 F.3d at 448 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443(1989)). In performing that balancing, that court explained, the factfinder " should consider the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. Ultimately, " the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397.

         Here, the state court found that Deputy McClone was justified in entering Weinmann's garage without first obtaining a warrant under both the exigent circumstances exception to the search warrant requirement and under the community caretaker exception. Weinmann has indicated that he does not intend to argue that Deputy McClone's entry was illegal, but claims he must be able to put before the jury the circumstances leading up to the shooting, including McClone's entry, and should be free to argue that McClone acted unreasonably in choosing to enter the garage at the time and in the manner he did. I agree. Judge Kirk made no formal findings of fact, other than to conclude generally that Deputy McClone acted reasonably in entering immediately upon the belief that Weinmann was in the process of committing suicide. Order Denying Mot. for Reconsideration, ECF No. 50-7.

         Equally important, I conclude it would be unfair to bar Weinmann from arguing that Deputy McClone's conduct leading up to the shooting was unreasonable. As noted above, even if there are common factual issues underlying both the excessive force claim in this case and the illegal entry claim, Wisconsin courts would not apply issue preclusion if the fairness analysis convinces the court that it ...

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