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.
The United States District Court for the Eastern District of Wisconsin denied Officer McDonough’s motion for summary judgment, reasoning that the video footage of the encounter supports a finding that Officer McDonough’s use of the taser was constitutionally unreasonable—and that any reasonable officer would have known as much. Officer McDonough appealed the decision. Along with Rights Behind Bars, and Mr. Ferguson’s court-appointed trial counsel, David Lang, LDF represents Mr. Ferguson before the U.S. Court of Appeals for the Seventh Circuit. Serving as principal author on the brief, LDF argued that the district court appropriately rejected the defense because no reasonable officer in Officer McDonough’s position could have believed that the Constitution allows an officer to fire a taser at a disrobed, unarmed individual with his hands raised in surrender. In other words, Officer McDonough’s actions were a violation of Mr. Ferguson’s clearly established Fourth Amendment rights—to be free from significant force when there is no active resistance or following a surrender. LDF also argued that the Seventh Circuit lacks jurisdiction because Officer McDonough is attempting to re-litigate the district court’s factual conclusions rather than abstract questions of law.
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.