United States District Court, E.D. Wisconsin
GABRIELLA SILER, a minor, by her mother and guardian, Ikesha King, and
CITY OF KENOSHA and PAUL PABLO E. TORRES, Defendants. ESTATE OF AARON SILER, by special administrator, Lisa Cerna, Plaintiffs,
DECISION AND ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
E. JONES UNITED STATES MAGISTRATE JUDGE
Siler was shot and killed by Kenosha Police Officer Paul
(Pablo) Torres on March 14, 2015, after Siler fled from an
attempted traffic stop. The shooting occurred after Officer
Torres located Mr. Siler hiding in an auto body repair shop.
With the two men separated by a parked SUV, Mr. Siler refused
to get on the ground and appeared to be reaching for
something located on the repair shop's floor. When Mr.
Siler made a move toward the front of the SUV and away from
an open, overhead garage door, Officer Torres fired seven
shots, believing that Siler was about to attack him.
years later, Mr. Siler's daughter and estate sued Officer
Torres under 42 U.S.C. § 1983 for using
unconstitutionally excessive force. Officer Torres has moved
for summary judgment, arguing that his use of deadly force
was reasonable and that he is otherwise entitled to qualified
immunity. Because a reasonable jury could find that the use
of deadly force was objectively unreasonable in this case,
Officer Torres is not entitled to summary judgment on the
plaintiffs' excessive-force claim. However, the
plaintiffs have failed to establish that Officer Torres
violated Mr. Siler's clearly established constitutional
rights. Officer Torres is therefore entitled to qualified
immunity from the plaintiffs' excessive-force claim, and
his summary-judgment motion will be granted.
approximately 9:35 a.m. on March 14, 2015, City of Kenosha
Police Officer Pablo Torres was on vehicle patrol when
dispatch requested assistance apprehending Aaron Siler.
See Defendant Torres' Reply to Defendant
Torres' Proposed Findings of Fact ¶ 8, ECF No. 64.
The 911 dispatcher told Officer Torres that Mr. Siler was
wanted for strangulation and suffocation. Def.'s Facts
¶ 9. The dispatcher also told Officer Torres
that Mr. Siler had taken a vehicle without consent and that
Officer Torres should use caution because Mr. Siler was known
to have violent tendencies. Def.'s Facts ¶ 10.
Officer Torres indicated that he was in the vicinity and
could handle the call. Def.'s Facts ¶ 11.
Torres used his squad's computer to look up information
about Mr. Siler. Def.'s Facts ¶ 12. He confirmed the
information from dispatch and learned that Mr. Siler was
6′4″ and 26 years old. Def.'s Facts
¶¶ 12-13. At the time, Officer Torres was
5′7″ tall, weighed 155 pounds, and was 42 years
old. Def.'s Facts ¶¶ 7, 14.
Officer Torres approached a stop light, Mr. Siler passed
right in front of him. Def.'s Facts ¶ 15. Officer
Torres activated his emergency lights and sirens, but Mr.
Siler did not stop. Def.'s Facts ¶¶ 16-19.
Instead, Mr. Siler sped off, traveling over 80 miles per
hour, driving on the wrong side of the road, and ignoring
stop signs and traffic controls. See Def.'s
Facts ¶¶ 20-23. The vehicle chase ended after three
minutes when Mr. Siler sideswiped another vehicle and crashed
his car. Def.'s Facts ¶¶ 25-26.
Siler abandoned his vehicle and fled on foot. Def.'s
Facts ¶ 27. Officer Torres gave chase, noting that Mr.
Siler was much taller and heavier than he was. Def.'s
Facts ¶¶ 28-29. During the chase, Officer Torres
yelled out, “stop, ” “police, ” and
“get on the ground.” Def.'s Facts ¶ 34.
Mr. Siler did not obey any of the commands. Def.'s Facts
¶ 35. Rather, he continued to run, scaling two fences
along the way. Def.'s Facts ¶¶ 32-33. Officer
Torres lost sight of Mr. Siler for a bit as Siler outpaced
him. Def.'s Facts ¶ 40. Eventually, Officer Torres
located Mr. Siler and followed him toward an auto body repair
shop. Def.'s Facts ¶¶ 40, 42. Juan Carlos
Salinas was standing near the repair shop's garage
entrance on the south side of the building. Def.'s Facts
¶ 44. Mr. Salinas gestured to Officer Torres that the
person he was looking for was inside the garage. Def.'s
Facts ¶ 45.
the garage were two vehicles: a pick-up truck parked straight
ahead, and an SUV parked to the right at an angle.
See Exhibit C to Torres Decl., ECF No. 48-3. Upon
entering the garage, Officer Torres observed another man,
Antonio Salinas Jaimes, holding a baseball bat. Def.'s
Facts ¶¶ 47-48. Officer Torres yelled, “Where
is he at?” Plaintiffs' Statement of Additional
Facts ¶ 4, ECF No. 55. Mr. Salinas indicated that the
man was hiding in a back room. See Exhibit G to
Safran Decl., ECF No. 56-7 at 8-9. Officer Torres pulled out
his service weapon,  see Safran Decl., Ex. G at 9, and
yelled repeatedly at Mr. Siler to come out, Pls.' Facts
Siler eventually exited the back room and ran along the
passenger side of the SUV toward the open garage door;
however, he stopped when Officer Torres blocked his path.
See Safran Decl., Ex. G at 12; see also
Exhibit F to Safran Decl., ECF No. 56-6 at 9. While standing
near the back-driver side of the SUV, Officer Torres ordered
Mr. Siler to get on the ground. Def.'s Facts ¶ 60.
Mr. Siler didn't comply. Def.'s Facts ¶ 63. And
so began a standoff between Officer Torres and Mr. Siler, who
were standing on opposite sides of the SUV. Def.'s Facts
¶ 61. When Officer Torres moved toward the front-driver
side of the SUV, Mr. Siler moved to the back-passenger side;
when Officer Torres moved to the back, Mr. Siler moved to the
front, always very quickly. Def.'s Facts ¶ 64. All
the while, Officer Torres was ordering Mr. Siler to get on
the ground, Def.'s Facts ¶ 61, and the garage door
remained open, see Def.'s Facts ¶ 65;
see also Exhibit B to Torres Decl., ECF No. 48-2
(photograph depicting back-passenger side of SUV and open
going back-and-forth several times, the two men stopped near
the front fender of the SUV, separated only by the
vehicle's hood-Officer Torres on the driver side, and Mr.
Siler on the passenger side. See Def.'s Facts
¶¶ 68-69; see also Torres Decl., Ex. C. At
that time, Mr. Jaimes and Mr. Salinas were in the same room
of the garage as Officer Torres, Mr. Siler, and the SUV.
Def.'s Facts ¶ 70. Mr. Jaimes was somewhere to
Officer Torres's left, and Mr. Salinas was somewhere
behind Officer Torres. Id. According to Officer
Torres and Mr. Salinas, Mr. Siler looked angry. See
Def.'s Facts ¶ 71.
Torres pointed his gun at Mr. Siler and ordered him to get on
the ground. Def.'s Facts ¶ 72. Mr. Siler didn't
comply, yelling, “fuck you, ” “no, ”
and “shoot me.” Id. He also began
looking to the ground and then up at Officer Torres.
Def.'s Facts ¶ 73. Officer Torres could not see Mr.
Siler's hands. Def.'s Facts ¶ 74. Mr. Siler then
bent over and, when he stood up, Officer Torres could see a
black, cylindrical object pressed against Mr. Siler's
forearm. Def.'s Facts ¶ 75. Officer Torres believed
at the time that the object was a steel pipe; he later
learned it was the handle of a floor jack, to which it was
attached. See Def.'s Facts ¶¶ 76,
80-82; see also Exhibit D to Torres Decl., ECF No.
48-4 (photograph depicting floor jack in foreground); Exhibit
A to Declaration of Emanuel Kapelsohn, ECF No. 67-1
(photograph depicting the handle). Officer Torres still could
not see Mr. Siler's hands. Def.'s Facts ¶ 75. He
ordered Mr. Siler to “drop it” and “get on
the ground.” Def.'s Facts ¶ 77. Mr. Siler
continued to shout, “fuck you, ” “no,
” and “shoot me.” Def.'s Facts
Siler bent down again as if he was grabbing something.
Def.'s Facts ¶¶ 87, 90. But Officer Torres
still could not see Mr. Siler's hands. Def.'s Facts
¶ 88.Mr. Siler looked straight at Officer
Torres. Def.'s Facts ¶ 91. Mr. Siler then took a
step to his right, toward the front-passenger corner of the
SUV (and away from the open garage door) but not past its
front bumper. See Def.'s Facts ¶¶
92-93, 100. Officer Torres shot at Mr. Siler. See
Def.'s Facts ¶¶ 111-17. The entire sequence
inside the garage lasted less than thirty seconds. Def.'s
Facts ¶ 59.
Torres was later told that he fired his gun seven
times-successively without pause or delay between
shots-hitting Mr. Siler with six bullets: three in the right
shoulder and three in the chest. Def.'s Facts
¶¶ 112-14. The medical examiner indicated that the
shots to the shoulder were consistent with Mr. Siler being
upright, Pls.' Facts ¶ 35, but the shots to the
chest had a downward trajectory, see Pls.' Facts
¶ 36; Def.'s Facts ¶ 113. There was
approximately ten to twelve feet between Officer Torres and
Mr. Siler at the time of the shooting. Def.'s Facts
¶ 97; see Exhibit E to Torres Decl., ECF No.
48-5 (photograph depicting front-driver side of SUV). Mr.
Siler died from the gunshot wounds. Def.'s Facts ¶
September 28, 2017, Mr. Siler's minor daughter and estate
filed this action under 42 U.S.C. § 1983 against the
City of Kenosha and Officer Torres. See Federal
Complaint, ECF No. 1. The matter was randomly assigned to
this Court, and all parties consented to magistrate judge
jurisdiction. See Consent to Proceed Before a
Magistrate Judge, ECF Nos. 7, 8 (citing 28 U.S.C. §
636(c) and Fed.R.Civ.P. 73(b)). The plaintiffs claim that
Officer Torres used excessive force against Mr. Siler and
deprived Mr. Siler's daughter of the love, comfort,
society, and companionship of her father. Compl. ¶¶
431-37. The plaintiffs also claim that the excessive force
occurred as a direct result of the City's
unconstitutional policies. Compl. ¶¶ 442-59.
However, the claims against the City have been bifurcated for
discovery and trial. See Minute Sheet for Telephonic
Motion Hearing, ECF No. 27.
November 20, 2018, Officer Torres filed a motion for summary
judgment on the plaintiffs' excessive-force claim.
See Defendant Paul Torres' Summary Judgment
Motion, ECF No. 45. That Motion is now fully briefed and
ready for disposition. See Defendant Paul
Torres' Brief in Support, ECF No. 47; Plaintiffs'
Memorandum of Law in Opposition to Summary Judgment Motion,
ECF No. 53; Defendant Paul Torres' Reply Brief, ECF No.
Summary Judgment Standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Material facts” are those
that, under the applicable substantive law, “might
affect the outcome of the suit.” See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
over a material fact is “genuine” “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
moving party “is ‘entitled to a judgment as a
matter of law'” when “the nonmoving party has
failed to make a sufficient showing on an essential element
of [its] case with respect to which [it] has the burden of
proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Still,
a party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.
Id. (internal quotation marks omitted).
determine whether a genuine issue of material fact exists,
the court must review the record, construing all facts in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party's favor. See Heft
v. Moore, 351 F.3d 278, 282 (7th Cir. 2003) (citing
Liberty Lobby, 477 U.S. at 255). “However,
[the court's] favor toward the nonmoving party does not
extend to drawing inferences that are supported by only
speculation or conjecture.” Fitzgerald v.
Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (quoting
Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th
Cir. 2012)). That is, “to survive summary judgment, the
non-moving party must establish some genuine issue for trial
‘such that a reasonable jury could return a
verdict' in her favor.” Fitzgerald, 707
F.3d at 730 (quoting Makowski v. SmithAmundsen LLC,
662 F.3d 818, 822 (7th Cir. 2011)).