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Estate of Biegert v. Molitor

United States District Court, E.D. Wisconsin

August 30, 2019

ESTATE OF JOSEPH BIEGERT by Special Administrator Toni Biegert, Plaintiff,



         Plaintiff, 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.


         Joseph 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.

         On 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.

         As the 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.

         Once 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.

         Shortly 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 ¶¶ 17-18.

         The 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 ¶¶ 16, 19.

         Biegert 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.

         When 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. Id.

         When 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.

         Officer 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.

         Biegert 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. ...

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