United States District Court, E.D. Wisconsin
THERESA MASON-FUNK, individually and in her capacity as the Special Administrator of the Estate of Michael L. Funk, Plaintiff,
CITY OF NEENAH, CRAIG HOFFER, and ROBERT ROSS, Defendants.
DECISION AND ORDER GRANTING MOTION FOR SUMMARY
William C. Griesbach, Chief Judge.
Theresa Mason-Funk, brought this action under 42 U.S.C.
§ 1983, individually and in her capacity as the personal
representative of the estate of her husband Michael Funk,
seeking damages against Officers Craig Hoffer and Robert Ross
of the Neenah Police Department (NPD) for the fatal shooting
of her husband. She also asserts claims for battery and loss
of society and companionship against the officers under
Wisconsin's wrongful death statute. The City of Neenah,
which is statutorily required to indemnify officers for
liability arising out of acts performed in the course of
their employment, is also named as a defendant. The Court has
jurisdiction over Plaintiff's § 1983 claim 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' motion for summary
judgment. Defendants argue that the use of force used was
reasonable under the circumstances and, alternatively, that
they are immune from liability under federal and state law.
For the reasons set forth, Defendants' motion will be
case arises out of the tragic consequences of a horrendous
crime committed by Brian Flatoff on December 5, 2015. At
approximately 8:35 a.m. on that day, Brian Flatoff entered
Eagle Nation Cycles, a motorcycle shop located at 206 Main
Street in the City of Neenah, Wisconsin, with a loaded MAC-10
machine pistol and took Michael Funk, Ryan Moderson, Ethan
Moderson, and Michael Petersen hostage. Pl.'s Proposed
Findings of Fact (PPFOF) ¶ 1, ECF No. 32. Flatoff
instructed Ryan Moderson to call Vance Dalton, with whom
Flatoff had a dispute, and tell him to come to the motorcycle
shop immediately. After placing the call, Moderson kept the
telephone line with Dalton open, and Dalton relayed
information about the situation to local authorities.
approximately 8:56 a.m., Winnebago County Dispatch notified
the NPD about a weapons call at Eagle Nation and reported
that a shot had been fired. Defs.' Proposed Findings of
Fact (DPFOF) ¶ 1, ECF No. 24. The NPD alerted officers
to the hostage situation and directed them to proceed to the
scene. The responding officers included Lieutenant Shawn
O'Bre; Officer Jonathan Kuffel, the NPD SWAT team leader;
Officer Craig Hoffer, the assistant SWAT team leader; Officer
Robert Ross; and Sergeant Angela Eichmann. Officers from the
nearby City of Menasha Police Department also responded.
PPFOF ¶ 12.
en route to the scene, Lieutenant O'Bre learned there was
a man inside Eagle Nation with a weapon and that he had
several hostages. Beginning at 8:58 a.m., Officer Ross and
other officers listening to the Main Channel dispatch learned
that there were three possible hostages in the shop, that the
hostage taker had a MAC-10 or MOC-10, and that the suspect
was a white male with long hair and a beard, wearing a plaid
jacket. DPFOF ¶¶ 8 12. The officers did not receive
physical descriptions of any of the hostages. Id.
arrival at Eagle Nation, Lieutenant O'Bre advised area
units to set up a perimeter around the shop. Shortly
thereafter, dispatch informed the officers that an individual
who was believed to be the shooter left the shop in a truck.
Sergeant Eichmann and Officer Ross stopped the vehicle and
identified the driver as Ethan Moderson, who left the shop
undetected by Flatoff. Moderson confirmed that there was
still a man in the shop with a gun. After the officers
released Moderson, Lieutenant O'Bre asked Sergeant
Eichmann to manage the perimeter and O'Bre began forming
a “Hasty Team” consisting of Kuffel, O'Bre,
Ross, Hoffer, and Lieutenant Tyrone Thompson to enter the
shop if necessary. Id. ¶ 23. Officer Kuffel
eventually took command of the Hasty Team.
approximately 9:21 a.m., the officers learned that Flatoff
had threatened to start shooting if Dalton did not show up to
Eagle Nation within five minutes. Id. ¶ 25.
Approximately 18 minutes later, at 9:39 a.m., dispatch
reported that Flatoff was threatening to kill everyone if
Dalton did not arrive in the next minute or so. Id.
¶ 28. Based on these facts, Officer Kuffel concluded it
was necessary to forcibly enter the shop and prevent Flatoff
from killing or seriously harming the hostages. At around
9:40 a.m. he began “stacking” the team into
formation to enter Eagle Nation through the rear door from
the alley on the south side of the building. Id.
¶ 30. He stacked the officers in the following order:
Lieutenant Thompson with a shield as number one, Lieutenant
O'Bre as the driver as number two, Officer Hoffer as
number three, Lieutenant Kuffel as number four, and Officer
Ross as number five. Officer Heiting trailed the team with a
ram in case he needed to force the door open.
dashboard camera on a squad car parked at the west end of the
alley facing in an easterly direction (Squad 1 video)
captured the outdoor events that occurred next. ECF No. 25-2.
The Hasty Team entered the shop at 9:42:07 a.m. PPFOF ¶
31. Motorcycles and other items were scattered around the
rear shop area, limiting the team's ingress. Shortly
after the team entered the shop, Lieutenant Thompson and
Lieutenant O'Bre fell down a set of stairs just inside
the doorway. Upon entry, the officers called out in a loud
voice: “Police, ” “get down, ”
“get down on the ground right now, ” and
“let me see your hands.” DPFOF ¶ 34.
time the Hasty Team entered Eagle Nation, Funk was seated at
a desk facing the rear entrance and Flatoff stood close to
Funk. Funk dropped to the floor face down and Flatoff crawled
behind Funk and began shooting at the Hasty Team. A bullet
struck Officer Hoffer's helmet above his right eye around
9:42:14 a.m. PPFOF ¶ 34. Six seconds later, a bullet
struck a fire extinguisher, releasing powder into the air and
obscuring the officers' view. The Hasty Team initially
returned fire but then quickly withdrew from the shop at
approximately 9:43:02 a.m. Id. ¶ 36.
outside, the Hasty Team shouted into the shop, which was met
with more gunfire. DPFOF ¶ 52. Officers Kuffel and
Hoffer thought at the time that there were no hostages inside
Eagle Nation and instead believed the officers had walked
into an ambush. Id. ¶ 54. In any event,
Lieutenant O'Bre, Lieutenant Thompson, and Officer Kuffel
retreated to Gord's Bar parking lot on the same side of
the alley and to the west of Eagle Nation's rear
entrance. Officers Hoffer and Ross joined Sergeant Eichmann
and two Menasha Police Department officers and retreated to
the east side of Vicky's Beauty Salon across the alley
and to the east of the motorcycle shop.
approximately 9:45 a.m., Flatoff instructed Funk to close the
shop's rear door, which the Hasty Team had left open, and
warned Funk he would shoot him if he tried to escape. PPFOF
¶ 61. Funk proceeded to the door, started to close it,
but then dove out of the shop onto the ground outside.
Id. ¶ 63. As he did so, Flatoff fired in his
direction. Once outside the shop, Funk scrambled behind a
truck parked directly behind the shop in an apparent attempt
to take cover from Flatoff in the event he followed him out
the door. From his position behind the truck and facing the
door to the shop he had just exited, Funk drew his
silver-colored handgun from his waistband holster and held it
in both hands in a lowered position. Id.
¶¶ 65, 67.
meantime, upon hearing the shots Flatoff had fired at Funk
when he dove out the door, Officers Hoffer and Ross moved
back toward the alley and joined City of Menasha Police
Officer Raymond Berna, who was stationed at the southeast
corner of Vicky's Beauty Salon, where they could see the
rear door of the motorcycle shop. Id. ¶ 73. By
the time Officers Hoffer and Ross arrived at that position,
Funk had already exited the shop and had drawn his pistol.
DPFOF ¶ 88. As Funk turned in a counter-clockwise
direction and began running away from the truck and across
the alley at 9:45:38 a.m., Officers Hoffer and Ross fired at
him, striking him first in the left hip and leg, and then
continuing to strike him as he fell to the ground. PPFOF
¶ 78. Over a five-second period, Officer Hoffer fired
eight shots, striking Funk twice, and Officer Ross fired
eleven shots, hitting Funk with five. Id. ¶ 80.
the time Funk exited Eagle Nation until he was shot, neither
Officer Hoffer, Officer Ross, nor any other police officer
gave him a warning or any sort of instruction. Id.
¶ 83. Officer Hoffer told Wisconsin Department of
Justice investigators shortly after the incident that he
thought he ordered Funk to show his hands, but he later
conceded he did not do so. Id. ¶ 84. Officer
Ross did not believe it was feasible to issue a warning to
Funk between the time he first saw Funk with the gun in his
hand and the time Funk began turning toward the officers.
DPFOF ¶ 74. The only statement directed by the police to
Funk after he entered the alley was given fourteen seconds
after the officers finished shooting and Funk had stopped
Funk was down in the alley, Officer Hoffer and Sergeant
Eichmann discussed whether an officer should retrieve Funk to
provide medical attention. Officer Hoffer instructed the
officers to leave Funk because “he could care less
right now if he sits there and dies.” PPFOF ¶ 97.
Officer Hoffer contends he chose not to retrieve Funk because
the officers did not have proper equipment and cover if Funk
was lying on the ground merely waiting for an opportunity to
shoot at them. DPFOF ¶ 79. Funk ultimately passed away
as a result of the shooting.
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(citations omitted). “The nonmoving party must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a
showing sufficient to establish the ...