In Doxtator v. O’Brien, the court (Sykes/Flaum, with Flaum writing) affirmed summary judgment against the estate of a man who died after being shot by police in the Brown County Jail sally port in Green Bay. The man (Jonathon Tubby) had been arrested on an outstanding warrant and a separate marijuana charge and was brought to the local jail in Green Bay for booking. After a series of interactions between Tubby and officers as Tubby was meant to be entering the jail, officers shot Tubby with bean bag rounds twice, pepper sprayed him, and released a police dog to attack Tubby, before O’Brien shot Tubby eight times, killing him. The Seventh Circuit begins its discussion by placing the blame on Tubby for escalating the situation and credits the officers’ claimed belief that Tubby had a gun. (There was no gun.)

The court affirms summary judgment on the estate’s Fourth Amendment claim, finding that no reasonable jury could find the shooter’s decision to kill Tubby unreasonable. One notable reason cited by the court in support of its decision is the shooter’s claim that when he heard another officer shooting Tubby with an additional bean bag round, he believed that the sound was actually from Tubby shooting officers. The court further finds that even if there was a constitutional violation, qualified immunity would have protected the shooter because the two cases cited by the estate on the subject were not sufficiently particularized to the facts of the case at bar. The court then disposes of the remaining claims, finding that the Monell claims must fall because there was no underlying constitutional violation, the failure-to-intervene claims were doomed because there was no opportunity to intervene, and the DeShaney claim was inappropriate because a “state created danger” type of exception applies only when there is private violence (not violence by state actors).