Argued October 3, 2014.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:12-cv-01202-WCG -- William C. Griesbach, Chief Judge.
For ESTATE OF ADAM BROWN, by the Special Administrator Nancy Brown, Plaintiff - Appellant: Kenneth Chesebro, Attorney, Cambridge, MA; John C. Peterson, Attorney, Peterson, Berk & Cross, S.C., Appleton, WI.
For Timothy Thomas, Matthew Secor, Brown County, Defendants - Appellees: Samuel C. Hall Jr., Attorney, Crivello Carlson, S.C., Milwaukee, WI.
Before POSNER, ROVNER, and TINDER, Circuit Judges.
Posner, Circuit Judge.
Adam Brown, age 22, was at home with two friends in his ground-floor apartment in Green Bay, Wisconsin at 6:20 p.m. on a December evening, when there was a sudden knocking on his door and a yell of " police, search warrant!" As the police began to force open the front door when no occupant opened it, Brown ran upstairs to his bedroom and grabbed an unloaded shotgun that he kept there. Police followed. As they reached the top of the stairs they saw him standing in a corner of the bedroom pointing the shotgun at them. One of the officers, defendant Secor, shot Brown dead with an automatic rifle, precipitating this suit under 42 U.S.C. § 1983 against Secor, another officer in the search party (Thomas, who has, however, since been dismissed from the case), and their employer, Brown County. The district court granted summary judgment in favor of the defendants, precipitating this appeal by Brown's estate.
Secor had no way of knowing that the shotgun was unloaded. Had it been loaded with buckshot a single shot at so close a range would have been fatal. The estate contends not that Secor shouldn't have pulled the trigger when he saw a shotgun was pointed at him but that the police search was executed in an unreasonable manner (see, e.g., Terebesi v. Torreso, 764 F.3d 217, 233-36 and n. 16 (2d Cir. 2014); cf. Petkus v. Richland County, 767 F.3d 647, 650-52 (7th Cir. 2014)), violating the Fourth Amendment and causing Secor mistakenly to think he had to kill Brown in self-defense.
According to the estate's version of events, when Brown peered out of his front window in response to the knocking and the shout he found himself face to face with a man--it was Officer Secor--holding an automatic rifle, dressed in dark civilian clothes, with long hair, earrings, a goatee,
and sideburns, and wearing a hoodie and a baseball cap. Brown turned away from the window, yelled " What the fuck ... we are getting robbed again" (recently the apartment had been robbed by a person pretending to be an acquaintance), and fled upstairs. One of Brown's friends yelled to him " Get the shotty!" as Brown streaked to the back of the apartment and up the stairs to his bedroom (the apartment was a duplex). Within seconds the police broke down the front door and entered--five in all, two others having gone around to the back of the house to stop anyone from leaving by the rear door.
The officers had a valid search warrant; there was probable cause to believe that a burglar had hidden stolen property in Brown's apartment. The County's practice is for almost all searches to be executed by a drug task force trained in SWAT tactics and therefore heavily armed. In order to be sure that the search will indeed be of the building specified in the warrant, the team dispatches undercover officers to find the building and lead the team into it. Secor was one of the undercover officers, which was why he was accoutered as he was. The only indication that he was a police officer rather than a criminal was a badge he was wearing around his neck, and it's unclear whether Brown could have seen the badge in the dark when he looked through his window to see who was outside shouting. The officer standing behind Secor was wearing a jacket that said " police," as well as a badge, but was otherwise dressed in civilian clothes like Secor. The other three officers in the group that entered the apartment were wearing standard police uniforms but had been in the background, in darkness, when Brown peered outside.
The estate's case begins with the contention that the police had no need to conduct the search after dark (it is dark at 6:20 p.m. in December in Green Bay--sunset was at 4:14 p.m. the day of the search). There was no urgency. It was not like the search of a stash house, which might contain large quantities of drugs and money. The police were looking for some loot of modest value (a video game system, a couple of video games, and a few other small items) plus the burglar who had stolen it, whom the police correctly believed to be in Brown's apartment. Brown himself was not the suspect. In these circumstances, the estate argues, the search didn't have to be conducted by a heavily armed SWAT team, let alone a team led by an undercover police officer who looked like an armed thug. It was especially dangerous, the argument continues, for him to be the first officer whom an occupant of the apartment ...