United States District Court, E.D. Wisconsin
ESTATE OF JOSEPH BIEGERT by Special Administrator Toni Biegert, Plaintiff,
THOMAS MOLITOR, MATTHEW DUNN, BRIAN KRUEGER, and JOHN DOE POLICE OFFICERS #1-10, Defendants.
DECISION AND ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
WILLIAM C. GRIESBACH, CHIEF JUDGE.
the Estate of Joseph Biegert by Special Administrator Toni
Biegert, brought this action under 42 U.S.C. § 1983,
seeking damages against Officers Matthew Dunn and Brian
Krueger of the Green Bay Police Department as well as the
former Green Bay Chief of Police Thomas Molitor for the fatal
shooting of Joseph Biegert on February 24, 2015. Plaintiff
claims that Officers Dunn and Krueger violated the Fourth
Amendment by using excessive force and conducting an
unreasonable search and seizure and violated the Fourteenth
Amendment by denying Biegert his right to due process. The
court has jurisdiction over Plaintiff's claims pursuant
to 28 U.S.C. § 1331. The case is before the court on
Defendants' motion for summary judgment. Defendants
assert that the force used was reasonable under the
circumstances and, alternatively, that they are immune from
liability under federal law. They also deny Plaintiff's
assertion that they conducted an unreasonable search and
seizure and that they violated Biegert's right to due
process. For the reasons that follow, Defendants' motion
will be granted and the case will be dismissed.
Biegert was an adult resident of the City of Green Bay,
Wisconsin. Toni Biegert is Joseph Biegert's mother and an
adult resident of the City of Green Bay, Wisconsin.
Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, Dkt.
No. 20. Defendants Matthew Dunn and Brian Krueger are City of
Green Bay Police Officers and were so employed on February
24, 2015. Id. ¶¶ 2-3. Defendant Tom
Molitor is the former Chief of Police for the City of Green
Bay Police Department. Id. ¶ 4.
February 24, 2015, Joseph Biegert sent a text message to his
mother stating that he had taken a lot of medication in an
apparent suicide attempt. Id. ¶ 7.
Biegert's mother was concerned for his safety and called
the Green Bay Police Department (GBPD) to request a welfare
check. Id. ¶ 8. She advised that Biegert was
severely depressed and had a history of suicide attempts.
Pl.'s Proposed Findings of Fact (PPFOF) ¶ 2, Dkt.
No. 30. At approximately 7:31 p.m., Officers Krueger and Dunn
were dispatched to 1511 Plymouth Lane, Apartment E, in the
City of Green Bay, Wisconsin for the welfare check. The
dispatcher indicated that an adult male, who was later
determined to be Joseph Biegert, was at that location. DPFOF
¶ 7. At 7:32 p.m., GBPD learned that Biegert was in the
apartment alone, had no access to weapons, and had no access
to vehicles. PPFOF ¶ 3. Officer Dunn requested that
Rescue personnel be dispatched to the apartment and staged
nearby. DPFOF ¶ 9. As Officer Dunn approached the
residence, he noticed that Rescue was already on scene at the
corner of Plymouth Lane and Fisk Street. Id. Officer
Dunn was the first to arrive at Biegert's apartment, and
Officer Krueger ran to catch up to Officer Dunn once he
arrived. PPFOF ¶ 6. The officers did not report having
any detailed conversation or plan to interact with Biegert
before entering the building or Biegert's apartment.
Id. Officers Krueger and Dunn entered the building
and went to Apartment E, which was located on the second
floor at the top of the stairs. DPFOF ¶ 10.
officers approached the apartment, GBPD received a call from
Biegert at 7:39 p.m. Biegert indicated that he believed an
unknown number of people were outside the door and wanted to
hurt him and then hung up the telephone. PPFOF ¶ 5.
During Biegert's call with dispatch, Officer Dunn knocked
on Biegert's apartment door. DPFOF ¶ 11. A male
inside of the apartment asked who it was, and Officer Dunn
responded that it was the police. The male replied,
“OK, ” and paused. Id. The officers
heard the male walk away from the door, rummage for
something, then return and open the door. Id.
Officer Dunn was suspicious and had his guard up due to
Biegert's delay in answering the door. Id.
Plaintiff contends that Biegert delayed opening the door
because he was on the telephone with dispatch. PPFOF ¶
9. Officers Krueger and Dunn were not advised that Biegert
was on the telephone with dispatch at the time they knocked
on his apartment door. Id. ¶ 11.
Biegert opened the door, the officers confirmed Biegert's
identity, and Biegert stated that he was depressed. DPFOF
¶ 12. Officer Dunn observed that Biegert had hunched
shoulders indicative of a depressed individual and asked if
he and Officer Krueger could enter the apartment to speak
with him. Id. ¶¶ 12, 60. Biegert allowed
both officers into his apartment. Id. ¶ 12. The
apartment was cramped due to the amount of debris inside and
the position of the furniture. Id. ¶ 17. Upon
entering the main living area of the apartment, Officer
Krueger observed three opened pill bottles and loose pills
lying on the floor. Id. ¶ 13. Officer Krueger
asked Biegert how may pills he ingested, and Biegert
responded, “three.” Officer Krueger thought
Biegert may have ingested three bottles of pills as a result
of the three containers he saw on the floor. Id.
after entering the apartment, the officers heard sounds in
the bedroom. Id. ¶ 14. Officer Dunn asked
Biegert who else was in the apartment, and Biegert responded
that he did not know. Id. The officers became
suspicious and cautious, and Officer Krueger wanted to ensure
no one else was present or that an individual did not jump
out of a window. Id. Officer Krueger stayed in the
living room with Biegert while Officer Dunn conducted a
protective sweep of the apartment. Id. ¶ 15.
Officer Dunn went to the bedroom and found that a shade in
front of the open window was making the noise they had heard.
Id. He then checked the bathroom and back closet and
concluded no one else was in the apartment. Id.
Officer Dunn advised that the apartment was clear and
returned to the living room. He observed Biegert seated on a
sofa located behind another sofa. Id. Officer Dunn
also noticed a knife block on the kitchen counter but did not
secure the knife block before entering the living room. PPFOF
officers then advised Rescue personnel that Biegert admitted
taking pills. DPFOF ¶ 16. Officer Krueger noticed
Biegert put his left hand inside of a pocket and told Biegert
to remove his hand from his pocket. Id. ¶ 18.
Biegert complied but appeared nervous. Id. Officer
Krueger asked Officer Dunn to pat down Biegert for weapons
for the safety of the Rescue personnel. Id. ¶
19; PPFOF ¶ 22. Officer Dunn did not suspect that
Biegert was armed and believed Biegert was going to accept
the officers' help but anticipated that Biegert was going
to the hospital in an ambulance and did not want to leave an
armed individual with the ambulance crew. DPFOF ¶¶
stood in a narrow space between a sofa and a chair in the
living room. Id. ¶ 22. Before frisking Biegert,
Officer Dunn asked Biegert to put his hands behind his back,
and Biegert complied. Id.; PPFOF ¶ 25. Officer
Dunn held onto two of Biegert's fingers with his left
hand to control Biegert and later conceded that this hold may
have been painful for Biegert. PPFOF ¶¶ 26-27.
Officer Dunn requested that Biegert take a step forward
because they were in a crowded space, and Biegert complied.
Id. ¶ 26; DPFOF ¶ 22. As Officer Dunn
performed the pat down, Officer Krueger rolled the pill
bottles on the floor with his foot to determine what type of
medication the bottles contained so he could provide that
information to Rescue personnel. DPFOF ¶ 20. Officer
Krueger took out his flashlight and advised dispatch via his
portable radio that Rescue personnel could approach.
Id. ¶ 21.
Officer Dunn started to pass his hand across Biegert's
front belt area, Biegert stated something like “what
are you doing?” Id. ¶ 22. Biegert then
began to pull away, and his right hand came loose from
Officer Dunn's grasp. Id. ¶ 23. Officer
Krueger grabbed Biegert's left hand while Officer Dunn
grabbed Biegert's right and tried to return Biegert's
hands to the small of his back. Id. Biegert
attempted to pull his arms away from the officers, and
Officer Dunn felt resistive tension in Biegert's arms.
Id. Biegert pulled the officers toward the kitchen,
and Officer Krueger stated, “Don't do anything
stupid.” Id. ¶ 24. Officer Krueger
dropped his flashlight and tried to grab Biegert's left
side to gain an escort hold and decentralize Biegert, so that
he could place Biegert in handcuffs for their safety.
the officers and Biegert reached the kitchen area, Officer
Dunn put his leg in front of Biegert to impede Biegert's
movement, which resulted in Biegert and Officer Dunn falling
to the floor. Id. ¶ 25. Officer Dunn fell onto
his right side with his back toward the island that separated
the kitchen and living room areas. Id. Biegert
landed on Officer Dunn's legs and prevented him from
standing. Id. Biegert got up off the floor and
pulled the officers into the galley-sized kitchen near the
stove. Id. ¶ 26. All three then fell to the
floor. Id. Officer Krueger thought Officer Dunn was
somewhere under Biegert, who was on his back looking upward
or toward Officer Krueger. Id. ¶ 28. Officer
Krueger straddled Biegert's body and attempted to gain
control of him, but Biegert was thrashing about and exerting
his strength. Id.
Krueger drew his Taser, saw that Biegert's mid-section
was exposed, and attempted to place his Taser on
Biegert's exposed mid-section in an effort to control
him. Id. ¶ 29. When Officer Krueger engaged the
Taser, he did not hear the normal “pop” sounds
that would indicate that the Taser probes were released and
made contact with Biegert. Id. Instead, Officer
Krueger heard an arching sound and saw the Taser emanate blue
and purple lights. Id. The Taser had no effect on
Biegert, and Biegert became more animated and angry.
Id. ¶ 30. Officer Krueger rocked the Taser on
Biegert's mid-section, trying to create some effect and
stun Biegert. Id.
put his hand between Officer Krueger's legs near his
groin area, grabbed Officer Krueger's genitalia, and
squeezed hard, causing Officer Krueger to yell loudly.
Id. ¶ 31. Biegert then reached to either parry
Officer Krueger's Taser or grab it. Id. Officer
Krueger knocked his Taser out of Biegert's hand as he
yelled to Officer Dunn that Biegert had his Taser.
Id. Officer Krueger did not want to deploy his OC
spay because it would have negatively affected both officers,
and he instead performed focused strikes with a closed hand
to Biegert's face. Id. ¶ 35. Although the
room was dark, Officer Dunn could see that Officer Krueger
was striking Biegert and that it was having no effect.
Id. ¶ 36. Biegert continued to attempt to get
up, and Officer Dunn attempted to control Biegert by grabbing
his arms and pulling him to the ground. Id. Biegert
was thrashing around and struggling with the officers in the
corner of the kitchen, and his face or head contacted either
the stove or cupboards. Id. ...