Estate of Biegert v. Molitor, 2020 WL 4380652 (7th Cir. 2020)
Joseph Biegert texted his mother that he had taken pills in an apparent suicide attempt. His mother called the police and requested a welfare check. She said Biegert was depressed, had previously attempted suicide, was alone and she believed he had no weapons.
Officers Krueger and Dunn arrived to Biegert’s apartment. Hearing them arrive, Biegert called dispatch and reported there were strangers outside his door. The officers were unaware of Biegert’s call. When the officers knocked and announced themselves, they heard Biegert walk away from the door, rummage for something and return to open the door. Biegert opened the door, identified himself, told the officers he was depressed and allowed them into the apartment. The officers saw several empty pill bottles on the floor.
Biegert initially cooperated but resisted when Officer Dunn tried to pat him down. Officer Dunn held two fingers of one of Biegert’s hands. When he neared Biegert’s belt line, Biegert pulled away. Officer Krueger grabbed Biegert’s left hand while Officer Dunn tried to regrip Biegert’s right hand. Beigert dragged both officers toward the kitchen. Officer Krueger tried to hold Biegert and Officer Dunn blocked Biegert with his leg. Biegert and Dunn fell to the floor.
Officer Krueger drew his TASER® device and unsuccessfully attempted to use it on Biegert. When Officer Krueger then tried to apply a drive stun, Biegert squeezed Krueger’s genitals in a firm grip and reached for the TASER device. Officer Krueger knocked the TASER out of Biegert’s hand and delivered several focused blows to Biegert’s face, with no effect. Officer Dunn drew his TASER device and fired it at Biegert. He missed and both probes hit Officer Krueger. Once the TASER cycle ended, Officer Krueger expanded his baton to strike Biegert.
Biegert pulled a knife from a knife block on the kitchen counter. He lunged at Officer Dunn, stabbing Officer Dunn’s right arm. Officer Dunn drew his gun and yelled that Biegert was stabbing him. Officer Krueger tossed his baton aside and drew his gun as he stepped back. Biegert stepped toward Officer Krueger, who fired; Officer Dunn fired shortly after. Biegert fell, still gripping the knife. He died from his wounds.
Biegert’s mother sued the officers and the department. She argued the officers precipitated the force by their approach to the welfare check. She asserted the officers should have paused to make a plan for their encounter with Biegert and they should have seen the kitchen knives and secured them before dealing with him. She also alleged the officers’ “aggressive questioning” and gripping of his fingers during the frisk agitated Biegert. The court rejected these claims, stating even if the officers contributed to a dangerous situation, they did not violate a constitutional right: “The officers might have made mistakes, and those mistakes might have provoked Biegert’s violent resistance. Even if so, however, it does not follow that their actions violated the Fourth Amendment.” Bad tactics rarely will amount to a constitutional wrong.
Biegert’s mother also claimed the officers should be liable because they allegedly violated department policies. Many police agencies have carefully considered their response to suicide threats in circumstances where the suicidal person does not pose an immediate threat to others. Some agencies opt not to engage such persons at all, declining to attempt the type of welfare check requested by Biegert’s mother. (See Wallentine, Should I Stay or Should I Go? Police Magazine, October 2017.) Biegert’s mother argued the officers should be liable because they allegedly breached department policy. The court disagreed: “As we have previously stated, § 1983 protects plaintiffs from constitutional violations, not violations of state laws or, in this case, departmental regulations and police practices.”
The appellate court held the use of deadly force was reasonable. First noting that a person armed with a knife does not pose “an immediate threat of serious harm solely because he is armed,” the court stated: “Biegert not only threatened to use the knife—he actually used it. By the time Biegert was shot, he had already stabbed Dunn multiple times.” Moreover, in this case, deadly force was not the first option tried by the officers. The officers applied focused blows and TASER devices. When those options didn’t work, the officers tried a baton and more grappling. Only when faced with a deadly weapon did the officers use deadly force. Thus, the officers did not violate the Fourth Amendment by shooting Biegert.
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