By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 11, 2010 – A U.S. Court of Appeals for the Seventh Circuit panel has reversed a summary judgment ruling in favor of Mukwonago police that found an officer did not use excessive force when he shot a man multiple times with a taser gun and the man died at the scene.

In July of 2006, 29-year-old Nickolos Cyrus wandered into a home that was under construction in the Town of Mukwonago, wearing only a bathrobe. Cyrus suffered from bipolar disorder, and exhibited symptoms of schizophrenia and delusional behavior.

A Rock County Deputy Sherriff had taken him to a mental health facility the day before after finding him wandering along the interstate. He was released to the custody of his mother the same day, but left his mother’s home that evening. His mother phoned police, and asked that her son be placed into custody when found.

The next morning, a resident phoned police to report that a man was trespassing on his property, the partially constructed home, and was acting strangely. Mukwonago Lieutenant Thomas Czarnecki arrived on the scene.

Czarnecki was familiar with Cyrus’ mental condition, and knew that his mother reported him missing the night before. He observed Cyrus standing near the house in his bathrobe, identified himself, and asked Cyrus to come and talk with him. After a brief dialogue, Cyrus turned and began walking towards the house. Czarnecki maintains that Cyrus ran.

At that point, Czarnecki drew and fired his taser gun, striking Cyrus in the back. Cyrus fell to the ground, and was lying on his stomach. Either before or after back-up arrived, Cyrus stood up, staggered, and then fell to the ground again. More “taser stuns” were deployed.

At his deposition, Czarnecki testified that he fired the taser gun six times, twice upon the initial encounter and four times when Cyrus was on the ground. However, the taser gun’s internal computer registered 12 trigger pulls during the relevant timeframe.

When the officers finally handcuffed Cyrus, they rolled him over to find that he was not breathing. He never gained consciousness and was pronounced dead later that day.

Cyrus’s estate sued Czarnecki, the back-up officer, the Village and Town of Mukwonago and the police chief of each municipality on multiple federal and state law claims in the U.S. District Court for the Eastern District of Wisconsin.

The district court held that, in light of all the circumstances, “Czarnecki’s deployment of the [t]aser did not constitute excessive force as a matter of law” and granted summary judgment in favor of the defendants. On appeal, Cyrus’s estate argued that under 42. U.S.C. section 1983, police used excessive force, depriving their son of his Fourth Amendment rights.

Facts in dispute 

The appeals panel in Cyrus, et al. v. Town of Mukwonago, et al., No. 09-2331 (Nov. 10, 2010), explained that excessive force claims are reviewed under an objective-reasonableness standard. Under that standard, a court determines whether the intrusion on Fourth Amendment rights “was justified by the countervailing governmental interests at stake.”

That inquiry turns, the appeals court explained, on factors such as crime severity, the threat posed by the suspect, and whether the suspect is attempting to resist or evade arrest. The appeals court noted that “[i]f the suspect is mentally ill, the officer’s awareness of his mental illness is also a factor in the analysis.”

Unlike the district court, the appeals court concluded that summary judgment was inappropriate because genuine issues of material fact still exist.

The court concluded that there is conflicting evidence on the amount of force used by Czarnecki against Cyrus. Specifically, the court explained that there is a dispute as to how many taser stuns were deployed, and the extent to which Cyrus resisted or evaded arrest.

The court noted that Czarnecki knew Cyrus was unarmed, was aware of Cyrus’s mental illness, and testified at his deposition that Cyrus had never acted violently toward him in the past. Thus, a jury could find that Czarnecki used excessive force, the court concluded.

“When Czarnecki first arrived at the scene, he was the only officer on site, and his concern that Cyrus might retrieve a weapon or pose a threat to persons inside the house was clearly reasonable,” wrote Judge Diane Sykes. “On the other hand, once Cyrus was on the ground, unarmed, and apparently unable to stand up on his own, the risk calculus changed. Or so a jury might reasonably conclude.”

Expert testimony 

The district court included expert testimony that could not pinpoint the exact cause of death, but concluded that a number of factors together caused the death.

Czarnecki argued that “asking a jury to infer causation without expert testimony would be akin to proceeding under a theory of res ipsa loquitur – improper in a [section] 1983 action. …” In that case, Czarnecki argued, the Cyrus estate would be arguing that force must have been excessive because people do not ordinarily die from taser shock.

The panel noted that section 1983 prevents a plaintiff from arguing that an injury itself is evidence that excessive force was used without identifying the specific conduct that caused the injury. In this case, the panel explained, Cyrus’s estate amply identified the taser shocks as the specific conduct that caused the injury.

Causation will be difficult to prove without expert testimony linking the taser shocks to the death directly, the panel explained, but “the record contains enough evidence from which a reasonable jury could conclude as a matter of lay judgment that the excessive use of force – if indeed Czarnecki’s use of force was excessive and unreasonable– caused Cyrus’s death.”

The court reversed the district court’s summary judgment ruling and remanded the case.