Qualified Immunity

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7^th Circuit Court of Appeals

Case Name: Rebecca Gysan v. Steven Francisko, et al.,

Case No.: 19-1471

Officials: EASTERBROOK, WOOD, and BARRETT, Circuit Judges.

Focus: Qualified Immunity

On the first day of deer hunting season in 2013, Officer Steven Francisko was checking hunters’ licenses to prevent poaching. He saw a van parked on the side of a road; immediately across the road, armed hunters had just emerged from the woods. Francisko approached the driver, who turned out to be Shane Cataline. Francisko thought that Cataline was acting strangely and was reluctant to answer questions, though he handed Francisko his driver’s license. While Francisko was in his car doing a license check, Cataline called 911 and said: “I am in a lot of trouble right now. … I think I am going to be disappearing or something.” He hung up without requesting assistance. Francisko found that Cataline’s license was valid and that he was not wanted on a warrant, so he told Cataline that he was free to go—though he thought that Cataline looked tired. By the time Cataline drove away, Francisko had been joined by State Trooper Luke Kuehl in a second car. The 911 operator, worried about the strangeness of Cataline’s statements, called back, but he did not answer. The operator called the dispatcher, who reached Kuehl’s supervisor, who told him to stop Cataline to check whether he was fit to drive. (Everyone calls this a “welfare check,” meaning that it concerned the welfare of both Cataline and other drivers he might endanger.) Meanwhile Francisko had told Kuehl that he suspected that Cataline might be carrying drugs. The two officers followed Cataline’s van onto the eastbound lanes of I-88 and eventually pulled it over, though they took a while to see whether he violated any traffic laws that might support a stop.

Cataline stopped his van on the side of the highway after Kuehl turned on his flashing lights. Kuehl parked his car behind the van, and Francisko parked in front. The officers asked Cataline to put the van in park, turn off the engine, and hand over the keys. He did none of these things and stared straight ahead. Told that the officers wanted to ask about the 911 call, Cataline ignored them and continued to look ahead. Again, and then a third time, they told Cataline to turn off the engine. He did not comply. Instead he put the van into reverse, obtained enough room to turn 180°, and pointed the van west in the eastbound lanes of the Interstate. Francisko, who had to jump out of the way to avoid being hit, started trying to warn approaching traffic. Cataline then made a further 90° turn and plowed the van into the side of Kuehl’s car, bending its open door forward (the wrong way) on the hinge. Kuehl and Francisko say that Kuehl was pinned behind the door. A dashboard camera on Kuehl’s car was pointed straight ahead and recorded the van making the first 180° turn, but that maneuver took it out of the field of view. The audio portion of the recording continued, however, and the sound of the collision is followed by the sound of the van’s engine running and tires spinning after the crash, plus the voice of someone screaming. Francisko jumped onto the hood of Kuehl’s car and shot Cataline, who died at the scene. The video continued, and Kuehl can be seen limping.

Rebecca Gysan, Cataline’s mother and the executor of his estate, filed this suit under 42 U.S.C. §1983. She contended that the police thrice violated the Fourth Amendment (applied to the states by the Fourteenth): first by asking questions while Cataline’s van was stopped, next by directing Cataline to stop driving while his van was moving, and finally by shooting him. The district court granted summary judgment to both defendants—Francisko and Marc Miller, director of the state agency that employed Francisko. 2019 U.S. Dist. LEXIS 23805 (N.D. Ill. Feb. 14, 2019). The judge rejected the first two theories on the merits and the third after concluding that Francisko is entitled to qualified immunity because existing precedent would not have made clear to all reasonable officers that the use of deadly force was forbidden. On appeal Gysan has abandoned any claim based on the initial encounter between Francisko and Cataline, and her brief does not so much as mention Miller. Our discussion is limited to the remaining theories.

Let us suppose that Francisko was looking for a pretext that would enable him to stop the van so that he could check for drugs. That does not matter because analysis under the Fourth Amendment is objective. Whren v. United States, 517 U.S. 806 (1996), holds that as long as a stop is supported by an objectively sufficient cause, a court must ignore the officers’ motivations. So we ask whether it was reasonable to stop Cataline’s van.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.