April 30, 2012 – Waukesha police officers used excessive force when they shot Tamara Phillips four times in the leg with a SL6 Baton Launcher, the U.S. Court of Appeals for the Seventh Circuit recently ruled, reversing a judgment of the lower federal district court in Wisconsin.

A jury found that police did not use excessive force, but a three-judge appeals court panel (by 2-1 majority) concluded last week that Phillips’s post-verdict motion should have been granted.

“Because we find that the officers used excessive force and are not entitled to qualified immunity, we reverse,” wrote Judge Ann Williams.

In 2005, Waukesha police officers received a tip on a suspected drunken driver. Police found the car, driven by Phillips, and erroneously believed she may have stolen it. She had driven it into a bush, on the sidewalk near an apartment complex. Phillips was still in the car.

A total of seven squads responded, treating the situation as a “high-risk traffic stop.”

Police officers, wearing body shields for protection, repeatedly asked Phillips to exit the vehicle with her hands up, but Phillips did not exit the vehicle.

Instead, she lit a smoke and dangled her legs out the driver-side window. Eventually, police used a semi-automatic gun that fires polyurethane bullets to convince her to exit.

A warning shot was fired, and when Phillips did not exit the car, police fired at her legs four times, waiting between shots. The first shot elicited a howl from a drunken Phillips, but she did not move her legs. After the fourth shot, Phillips slumped out of the car and police arrested her.

One of the bullets caused a six-inch wound requiring thirty stiches to her right ankle. She also suffered other less-serious injuries and walked with a cane for three weeks. Phillips, a personal trainer, sued Waukesha police, claiming police used excessive force when arresting her.

When a jury eventually ruled in favor of the officers, she filed a post-verdict motion for judgment as a matter of law, but the motion was denied. However, in Phillips v. Community Insurance Corp., et al. No. 10-1654 (April 27, 2012), the appeals panel reversed.

“The SL6 shots used on Phillips plainly exceeded the ‘minimal’ force permitted for the suspected drunk driver in Smith,” Judge Williams wrote, referring to Smith v. Ball State University Board of Trustees, 295 F.3d 763 (7th Cir. 2002). In Smith, police used force to remove a driver from his car. The driver had passed out at the wheel from diabetic shock.

The panel rejected the police officers’ argument that they reasonably thought they were dealing with a stolen vehicle, a high-risk-stop, and thus the excessive force used was warranted.

“Even if the officers acted reasonably in treating the arrest as a high-risk-stop because of uncertainty surrounding the license plates, the force they used to apprehend Phillips exceeded the level that was reasonable under the circumstances,” Judge Williams explained.

The panel also rejected the officers’ claim that qualified immunity applied, noting the law on excessive force was clearly established on the date of the incident, and qualified immunity only protects an officer who reasonably believes his or her conduct is lawful.

Judge John Tinder wrote a dissenting opinion.

I have no major quarrel with the majority’s description of the facts and applicable legal standards,” Judge Tinder wrote. “I respectfully dissent, though, because I cannot agree that based on those facts, a reasonable jury had to find in favor of Phillips.”

By Joe Forward, Legal Writer, State Bar of Wisconsin