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Estate of DiPiazza v. The City of Madison

United States District Court, W.D. Wisconsin

April 11, 2017

THE CITY OF MADISON and JUSTIN BAILEY, GARY PIHLAJA, and CARY LEEREK, in their individual capacities, Defendant.


          WILLIAM M. CONLEY District Judge.

         In the early morning hours of May 18, 2014, several police officers responded to a report of a domestic disturbance in an apartment on Madison's far east side. After a fight with her boyfriend, a 26-year old woman, Ashley DiPiazza, had taken his gun and barricaded herself inside the apartment's bedroom, threatening to shoot herself. The officers who arrived on the scene tried repeatedly to talk to Ashley, asking and warning her numerous times to put down the gun. At one point, she opened the bedroom door with the gun to her head, but then closed it, refusing to surrender her weapon. When Ashley opened the door and emerged holding the gun to her own head for a second time, officers Justin Bailey and Gary Pihlaja reacted by shooting her several times, killing her.

         The district attorney declined to bring criminal charges against any of the officers involved in the incident, and a subsequent internal review by the Madison Police Department found that the officers' actions did not violate departmental policy. Ashley's father, Joseph DiPiazza, instead brought this civil lawsuit under 42 U.S.C. § 1983 in his capacity as the personal representative of Ashley's estate, alleging that defendants Bailey and Pihlaja violated Ashley's Fourth Amendment rights by using unreasonably excessive force when they shot and killed her. Plaintiff also alleges that another officer on the scene, defendant Cary Leerek, who had taken the lead in negotiating Ashley's voluntary surrender, also violated Ashley's Fourth Amendment rights by failing to intervene to prevent Bailey's and Pihlaja's excessive use of deadly force.[1]

         Pending before the court is plaintiff's motion for partial summary judgment against officers Bailey and Pihlaja, contending that their use of deadly force against a woman threatening only suicide was unreasonable as a matter of law. (Dkt. #29.)[2] Defendants also move for summary judgment, contending that: (1) their reactions to this dangerous situation were objectively reasonable as a matter of law; or, alternatively, (2) they are protected by qualified immunity. (Dkt. #41.) For reasons explained in greater detail below, genuine disputes of material fact preclude summary judgment either for plaintiff or for any of the defendants at this time. The court will, therefore, deny both motions.


         A. Responding to Call

         At approximately 1:21 a.m. on May 18, 2014, Dane County dispatch aired an “alert tone” calling for available police units to respond to an emergency situation involving a weapon. The dispatch reported that the situation was a domestic disturbance between a male and a female at 1121 MacArthur Road, apartment number two. The female subject had reportedly been drinking alcohol (but had not been using drugs), had taken possession of the male's handgun (a 9mm Glock), and had barricaded herself inside the apartment, while the male left and called the police from a neighboring apartment.[4]The male caller was named Alex, and the female was his girlfriend, Ashley DiPiazza.

         Patrol Sgt. Jason Sweeney was nearby at the Madison Police Department's East District precinct when he heard the dispatch alert, and he asked the dispatch to clarify whether the female subject was threatening herself or others. Dispatch responded that the male caller had not specified what the gun was being used for. Sgt. Sweeney was familiar with that address because approximately two months before, in March 2014, he had responded to a possible breaking and entering reported by Ashley DiPiazza at 1121 MacArthur Road, apartment two. On that occasion, Sgt. Sweeney had responded along with officers Bee Xiong, Cate Leerek, and defendant Cary Leerek, and the officers had determined that the apartment was clear of burglars, prowlers, or other threats. Officers Xiong and Cate Leerek spent a significant amount of time in the apartment speaking with Ashley and investigating the situation in March, but Sgt. Sweeney and defendant Cary Leerek were only there for a few minutes.

         At approximately 1:27 a.m. on May 18, 2014, officer Xiong was the first to arrive on the scene, followed shortly after by Sgt. Sweeney and several other officers, including defendants Justin Bailey, Gary Pihlaja, and Cary Leerek. At that time, Sgt. Sweeney was in charge of the situation, and he directed the officers to set up a perimeter outside the building at 1121 MacArthur Road (an apartment building with eight residential units). The door to apartment 2 - where the officers believed Ashley had barricaded herself with the gun - was closed and locked from within. Alex was in apartment 1, which was directly across the hallway from apartment 2, and officer Xiong went in to speak with him. Within five to seven minutes of the officers' arriving on the scene, Alex told officer Xiong - who in turn reported to Sgt. Sweeney - that Ashley had not pointed the gun at Alex, and had not threatened him. Rather, it seemed more like she was threatening herself.

         Sgt. Sweeney then began trying to establish contact with Ashley. He first called her cell phone several times, but the calls went immediately to voicemail. Sgt. Sweeney then ordered Bailey, Pihlaja, and a third officer (Chris Keys) to stand in the hallway directly outside apartment 2 to provide support as he began ringing the doorbell.

         At this time, Pihlaja was armed with an AR-15 assault rifle (or “long gun”), and Bailey was armed with a .40-caliber Glock handgun. Both were wearing bullet-proof vests under their uniforms that protected their upper torsos. Bailey was also holding the single ballistic shield that the officers had on hand at the scene - a bullet-resistant shield approximately three to four feet tall and two to two and a half feet wide, weighing 40-50 pounds, with a small Plexiglas window near the top. Pihlaja and Bailey positioned themselves outside the door of apartment 2 with Pihlaja as the so-called contact (communicating) officer, pointing his long gun at the door, and Bailey as the cover (protecting) officer, holding the shield and handgun. Pihlaja pounded or knocked on the door and began making loud announcements to the effect of “Madison Police Department. Put the gun down, hands up and come to the door, ” while Sgt. Sweeney continued ringing the doorbell and trying to call Ashley's phone. Pihlaja repeated these and similar commands many times, and stated that the officers were not going away, but there was no response from within apartment 2.

         B. Entering the Apartment

         Sgt. Sweeney decided to enter the apartment, and he obtained a key from Alex to do so. After knocking numerous times without response, he used the key to open the front door to the apartment. Sgt. Sweeney ordered the officers not to enter the apartment, but to stack themselves behind Bailey's ballistic shield so that they would have cover as the door swung open. Pihlaja continued repeating similar announcements and warnings, identifying themselves as police officers, now addressing Ashley by name and ordering her to put down the gun and put her hands in the air. The apartment was well lit. The following is a rough layout, with approximate dimensions, of unit 2:

         (Image Omitted.)

         Once the front door was all the way open, Sgt. Sweeney, Pihlaja, and Bailey could see the entire living room and kitchen, which appeared to be empty. However, one or more of the officers heard muffled crying coming from behind the closed bedroom door across the living room, so they believed that Ashley was inside the bedroom. Pihlaja and Bailey were still standing in the open frame of the front door to the apartment, both partially covered by Bailey's ballistic shield. Pihlaja then tried to make verbal contact with Ashley, again announcing loudly, “Madison Police, ” and telling her to put the gun down and to come out of the bedroom with her hands up. The officers heard Ashley through the bedroom door crying, pause, and say something to the effect of “go away, I'm not coming out, ” before the crying continued.

         Pihlaja said something to the effect of “I understand that maybe something happened between you and your boyfriend tonight. It's okay. We can work through that. We can deal with that. We just want to make sure no one gets hurt. I just need you to put that gun down and come out of the bedroom.” Pihlaja continued trying to engage Ashley, but with no more success.[5] The officers could hear Ashley say something behind the closed bedroom door, but they could not make out what. They were able to hear enough, however, to conclude that she “sounded intoxicated.” After approximately five or ten minutes more of this type of limited exchange, Sgt. Sweeney interceded to try to move things along, saying, “Ashley, I know you're having a bad night. I just need to make sure you're okay. Can you at least open the door and talk to me?”

         At some point, the bedroom door suddenly opened. The officers saw Ashley step into view and approach the open bedroom doorway, holding a handgun to the side of her head.[6] She was crying and seemed very upset. Ashley said something to the effect of “I'm not coming out, ” and she also said something about wanting to call or speak with her father. The officers heard her yelling something that they could not understand. Ashley did not appear to be physically injured, nor did she make any verbal threats or point the gun at anyone else, keeping it held to her own temple. Pihlaja ordered Ashley to “drop it” or “drop the gun, ” but she did not comply. Pihlaja raised his rifle and pointed it at Ashley. Sgt. Sweeney said something like “get back, get back, ” and the officers backed up and retreated several feet toward the hallway. Approximately four seconds after Ashley had opened the bedroom door, she backed up into the room and shut it again.

         C. Negotiations

         At this time, now approximately 1:43 a.m., Sgt. Sweeney requested that defendant Cary Leerek - who was a SWAT officer and a trained crisis negotiator - take over the lead role and try to communicate with Ashley. Leerek was already nearby outside the building, and she quickly joined Sgt. Sweeney and the others in the apartment hallway. The officers then took Leerek into apartment 1 and briefed her on the entire situation so far. There she also spoke to Alex directly.

         As the lead contact officer and negotiator, Leerek then assumed control of the attempts to communicate with Ashley. She took the ballistic shield from Bailey and approached the open front door of apartment 2, as Bailey and Pihlaja went alongside her to provide cover. Sgt. Sweeney also requested that a second shield be brought to the scene, although Leerek did not wait for it to arrive. SWAT officer Nick Eull, who was standing nearby outside the apartment door, and who was wearing heavier, extra body armor over his uniform, offered to relieve Bailey or Pihlaja at this point. Both declined Eull's offer.

         Leerek then entered through the front door into the apartment, holding the ballistic shield on the left side of the doorway. She also unholstered her handgun. Pihlaja was just to Leerek's right, partially covered by her shield, and was armed with his long gun. Bailey was on the right side of the door frame, armed with his handgun. Pihlaja and Bailey both had their firearms out, aimed slightly downward, ready to use if an imminent threat presented itself.[7] The three of them did not explicitly discuss or agree on a specific plan of approach or engagement with Ashley, other than to follow Leerek's lead, rely on their training, and react appropriately to events.[8]

         More generally, Leerek prepared to make verbal contact with Ashley, believing that getting the subject talking was the best way to handle the situation and resolve it safely, while Pihlaja and Bailey were charged with observing the subject and protecting Leerek and others, if necessary. Leerek was mindful of the risks posed by situation, understanding that Ashley had been drinking, and she was upset, armed with a gun, and potentially suicidal. Even so, Leerek did not believe she was in imminent danger of harm at that time.

         Leerek then introduced herself and began trying to talk to Ashley through the bedroom door. After about a minute, Ashley began responding. She sounded like she was crying, but Leerek could not understand what she was saying. Leerek asked if they could use a phone to talk, but Ashley said she did not have a phone in the bedroom.

         Leerek proceeded to try to talk to Ashley through the bedroom door for approximately 20-25 minutes. During that period, Ashley mentioned that Alex had cheated on her; she mentioned the word “suicide”; and she asked Leerek to bring Alex out into the hallway so she could see him or talk to him “one last time.” Leerek asked Ashley what she meant by that request, explaining that if she put the gun down and came out from the bedroom, there would be more opportunities to see and speak with Alex. At one point, Ashley responded that Leerek was “lying” or a “liar.” Leerek told Ashley repeatedly to put the gun down and come out from the bedroom, and made clear that she could not see Alex or anyone else until she put down the gun. Ashley then said that she was “not going to hurt anyone else, ” but that she would hurt herself.

         Ashley also repeated her request to see or speak with Alex in person, and she mentioned speaking with her father, but Leerek again told her that she first had to put down the gun and come out of the bedroom without it.[9] Knowing that officers were already trying to find contact information for Ashley's father, Leerek then asked another officer to find contact information for Ashley's uncle, who apparently worked in law enforcement, or to find information for any other family or friends they could contact. At some point, though exactly when is unclear, Leerek heard banging and pounding in the bedroom, and Ashley said, “you really want to be the officer that makes me do this?”[10]

         It was still difficult for Leerek to hear through the closed bedroom door, and she eventually convinced Ashley to open the door a crack so that they could communicate more easily. They did this for a short period before Ashley shut the door again. Leerek told Ashley, “let's resolve this, I'd like to be able to have you come out and talk to anyone you want to talk to, but we need to make sure ...

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