On July 9, 2018, Joseph Ferguson was tased by Officer McDonough of the Kenosha Police Department. Officer McDonough tased Mr. Ferguson after trying to arrest Mr. Ferguson for a domestic dispute that occurred in Mr. Ferguson’s apartment where the building manager called the police to report on a disorderly woman who didn’t live there.
Prior to the tasing, Mr. Ferguson had not actively resisted but Officer McDonough used enough force that Mr. Ferguson’s jacket came off and his pants fell to the ground. Officer McDonough proceeded to tase Mr. Ferguson while he was standing in the street wearing only boxers, with his pants around his knees, and his hands in the air. This use of force against an unarmed man in surrender happened in broad daylight and was captured by the dashcam
Mr. Ferguson filed a lawsuit in the U.S. District Court in the Eastern District of Wisconsin against Officer McDonough alleging violations of his constitutional right to be free from unreasonable seizures, and in particular, alleged that the officer used excessive force. The officer, Ryan McDonough, asserted that he was entitled to summary judgment, and that qualified immunity shielded him from civil liability for any injuries suffered by Mr. Ferguson during the encounter. The district court held that the officer was not entitled to qualified immunity because a reasonable interpretation of the encounter could conclude that Mr. Ferguson was not actively resisting arrest.
Officer McDonough appealed, arguing that his conduct did not violate clearly established law, that Mr. Ferguson was actively resisting arrest, and that a dashcam video of the encounter conclusively supported his account. LDF sought to dismiss the appeal, arguing that the video could support Mr. Ferguson’s account of being tased without reason—a clear Fourth Amendment violation. LDF argued the appellate court had no jurisdiction because material facts were in dispute, and that the officer was not entitled to qualified immunity, even if the court had jurisdiction.
In its September 8, 2021 decision, the Seventh Circuit recognized that, in the moment Mr. Ferguson was tased, he stood backed against his car with his hands in the air and his pants at his knees. It held that the dashcam video did not conclusively support the officer’s account, could reasonably be concluded to support Mr. Ferguson’s account, and did not discredit the district court’s findings. Recognizing that it did not have jurisdiction over factual disputes, the Seventh Circuit dismissed the officer’s appeal. Read our press release on the decision here.
The Seventh Circuit’s decision permits Mr. Ferguson’s civil rights claim to proceed and he can now go to trial on his excessive force claim.
Ending qualified immunity means that law enforcement officers who break the law can be held personally accountable, and victims of police misconduct can receive justice.