Clark v. Ziedonis Court Opinion

    544 368 FEDERAL SUPPLEMENT

cy, but they disaRi'oe as to what those 
limits are. The court has been asked to 
resolve the disaRreement.

The policy in question was issued to 
Mr. Alvarez, a citizen of OrcRon, in the 
state of OrcRon. I t  is contended by 
Farmers, and undisputed by the plain­
tiff , tha t  the policy satisfies OreRon’s 
insurance requirements. The limits of 
liability arc $10,000 per person and 
$20,000 per occurrence.

Despite tbe .stated limits of the policy, 
the plaintiff  contends tha t  this court 
should conform the policy limits to 
$15,000/$30.000. The basis for this con­
tention is a sentence in the policy which 
provides: “Policy terms which conflict 
with Wisconsin Statutes are amended to 
conform with such sta tu tes .” Such a 
conflict is allcRed to exist because, ac- 
cordinR to the plaintiff, § 344.15(1) of 
the Wisconsin sta tu tes “ requires th a t  
policies of insurance issued in Wisconsin 
have limits of not less than $15,000.00 
per person.”

I believe the p la in t if f ’s position is e r ­
roneous. The amendment provision of 
the pqlicy only applies if there is a con­
flict with Wisconsin s ta tu tes ;  there  is 
no conflict here. The p la in t if f ’s a rg u ­
ment implies th a t  § 344.15(1) requires 
drivers to carry  automobile insurance. 
Even if th a t  were true, w'hich it  is not, 
there m ight still be no conflict, for § 
344.15(2) exempts policies on out of 
state vehicles if, among other things, the 
policies meet the minimum liability lim­
its of the states of issuance.

The main 'shortcoming of the plain­
t i f f ’s premise is, however, as alluded to 
earlier, the fact th a t  insurance is not 
mandatory in Wisconsin. Section 344.15 
is pa r t  of the s ta te ’s financial responsi­
bility law, and it is directly applicable 
only a f te r  an accident. Laughnan v. 
Aetna Cas. & Sur. Co., 1 Wis.2d 113, 83 
N.W.2d 747 (l'.)57). Following an acci­
dent of tbe specified in § 344.12,
the admin '.4. of the s ta te ’s division 
of motor vehicles determines the amount 
of security necessary to satisfy any po­
tential judgm ent resulting from th a t  ac­
cident. Wis.Stats. § 344.13 (1971).

If  a person has a policy of insurance 
in effect th a t  satisfies § 344.15, the ad­
m in is tra tor  need not make the determi­
nation th a t  is otherwise required. Wis. 
Stats. 344.13(1), 344.14(2) (1971). 
Furthermoi'c, if  a determination as to 
the amount of security has been made, 
later proof of the existence of such a 
policy satisfies the statute. Wis.Stat. § 
344.14(2) (1971). Where no such policy 
exists, a party  against whom such a de­
termination is made must, subject to 
other exceptions, c ither deposit su ff i­
cient security or have his driver’s li­
cense and vehicle registra tion  suspended. 
Wis.Stat. S 344.14 (1971).

I t  is apparent, therefore, th a t  insur­
ance is not mandatory in Wisconsin. 
Proof of insurance which satisfies § 
344.15 is simply one method of avoiding 
suspension of driving privileges follow- 
iTig certain accidents. The fact th a t  a 
policy issued in another sta te  has lower 
limits than those stated in § 344.15(1) 
simply does not constitute a “conflict” 
between the policy and the statute.

Therefore, it  is ordered th a t  the plain­
t i f f ’s application to conform the insur­
ance policy herein referred  to be and 
hereby is denied.

Kdmuntl Gordon CLARK et al., and Ed­
ward Travis et al.. P laintiffs,

V .

Joseph ZIEDONIS, Defendant.
No. 71-C-578.

United States District Court,
E. D. Wisconsin.

Oct. 29, 1973.

Civil r igh ts  action by two arrestees 
against police officer claiming damages 
under the Civil Rights Act for the use 
of excessive force in connection with a r ­
rest. '] t.e Distric t Court, Myron L.

Gordon, J.. he 
is likely to 
harm  can be 
believe tha t 
imminent d(~. 
that,  und‘ !• ti 
shooting of t 
of commitUn, 
use of unrea- 
on the purt 
does not, of 
deadly force 

Judynv'i
ion.

1. Homicide '
Befoi'o f 

death or gre 
in effectii g 
believe tha t 
imminent d'

Civi'
i '

ficei- US' 
circunis'iit
W.S.A. '.•■19

3. Arrest Cr 
Assault a

Flight 
of crime d' 
use of dea 
cer and it 
circumste ■
shoot the , 
rest. W.'-

Gary .' 
plaintiffs  

Jame' 1 
waukec !>■ 
kee, Wis .

T'

MYK^

The d' 
police o' 
youths su 
i l i s  ■ .e‘ i 
was usee'



CLARK V.
C ite  a s  3liS F .S

Gordon, J., held th a t  before force which 
is likely to cause death or g reat bodily 
harm can be used, one must reasonably 
believe tha t  it  is necessary to prevent 
imminent death or great bodily harm, 
that, undei- the circumstances, officer’s 
shooting of two fleeing youths suspected 
of committing a felony constituted the 
use of unreasonable force and th a t  flight 
on the pa r t  of one suspected of crime 
does not, of itself, w arran t  the use of 
deadly force.

Judgm ent in accordance with opin­
ion.

1. Homicide <^116(4)
Before force which is likely to cause 

death or g reat bodily harm can be used 
in effecting arrest, one must reasonably 
believe th a t  it is necessary to prevent 
imminent death or great bodily harm.

2. Civil Rights C=13.13(3)
Evidence established tha t  police of­

ficer used unreasonable force under the 
circumstances by shooting arrestees. 
W.S.A. 9.39.49(1); 42 U.S.C.A. § 1983.

3. Arrest C=>68
Assault and Battery C=>6-1

Flight on the pa r t  of one suspected 
of crime does not, of itself, w a rran t  the 
use of deadly force by an arresting  o ffi­
cer and it is only in certain aggravated 
circumstances th a t  a police officer may 
shoot the person he is a ttem pting to a r ­
rest. W.S.A. 939.49(1).

Gary A. Gerlach. Milwaukee, Wis., for 
plaintiffs.

James B. Brennan, City Atty. of Mil­
waukee by Rudolph T. Randa, Milwau­
kee, Wis., for defendant.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

The defendant, .loseph Ziedonis, is a 
police officer who shot two fleeing 
youths suspected of committing a felony. 
Ills victims claim th a t  excessive iorce 
was used in connection witli the a r res t

368 F.Supp.— 35

ZIEDONIS 545
lip p . 5-11 (1973)

and seek damages under the Civil Rights 
Act, 42 U.S.C. § 1983. The liability is­
sue tu rns  upon the ciuestion of justif ica­
tion for his use of deadly force.

At the close of the bench tria l in this 
matter, I made the following prelimi­
nary determinations; a) the defendant 
had reason to believe th a t  a felony was 
in progress; b) the p la in tiffs ’ accounts 
of the incident lack credibility; and c) 
the defendant’s version of the pertinent 
events represents the factual backdrop 
against which the liability issue must be 
considered.

In McCluskey v. Steinhorst, 45 Wis.2d 
350, 354, 173 N.W.2d 148 (1970), the 
Wisconsin supreme court observed that 
the tes t  for liability is whether the 
amount of force used by the arresting  
officer was reasonable under the exist­
ing circumstances. Applying this test 
to the facts of this particular  case, I 
conclude th a t  the defendant’s use of 
deadly force was unreasonable and un­
justified.

At approximately 10:00 P.M. on J a n u ­
ary 11. 1971, Mr. Ziedonis and his part- 
nei’ responded to a radio dispatch indi­
cating an “entry  in progress, three ne­
gro males on the scene.
Armed with a Remington 12-gauge shot­
gun, Mr. Ziedonis positioned himself at 
the scene on a lighted public sidewalk, 
while his pa r tne r  circled around to the 
rear  of the homes located on th a t  block. 
The defendant was within five to ten 
yards from them when he observed three 
black males emerge from the gangway 
located between two houses. Each one 
was of junior high school age and ap­
proximately five feet six inches tall. 
The plaintiff, Edward Travis, wielding a 
thin, 12-inch steel-blue file, faced Mr. 
Ziedonis for an instant a f te r  he ordered 
them to halt. All three then retreated 
into the gangway located at the next 
hou.se down, as the defendant fired his 
shotgun over the ir  heads. Mr. Ziedonis 
then, ran up the sidewalk, parallel to 
the ir  path of retreat,  and positioned 
himself directly in front of th a t  gang­
way. He observed Edward Travis fac­
ing him again, and fired a second shot.

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546 368 FEDERAL SUPPLEMENT

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which felled both Edward Travis and 
the second of the plaintiffs, Edmund 
Clark.

The defendant contends th a t  when Ed­
ward Travis f i rs t  faced him, wielding 
the file, he viewed the move as a con­
frontation by someone holding a long- 
barreled revolver, and tha t  he feared for 
his life. However, notwithstanding the 
facts th a t  the area was lighted, the dis­
tance between them was short, and the 
file does not resemble a gun, one point 
is noteworthy; Mr. Ziedonis deliberately 
fired over the head of his would-be as­
sailant a t th a t  time.

Following tha t  warning shot, the 
three suspects retreated to the gangway 
located a t  the next house. Mr. Ziedonis 
had reason to know tha t  his partner, 
who was covering the rear  yard, had 
heard his w arning shot and th a t  the sus­
pects were not likely to escape. More­
over, Mr. Ziedonis positioned himself di­
rectly in front of the gangway contain­
ing the three suspects, including the 
“arm ed” one. While so exposed, he shot 
directly a t  them when he saw Edward 
Travis "fac ing” him again. The plain­
t i f f  Clark was h i t  in the back, and the 
p lain tiff  Travis, the object-wielder who 
“faced” the defendant each time, was hit 
through the head, from r igh t  to left, as 
well as in the forearm.

[1, 2] Before force which is likely to 
cause death or g rea t bodily harm can be 
used, one must reasonably believe th a t  it 
is necessary to prevent imminent death 
or groat bodily harm. Thomas v. State, 
53 Wis.2d 483, 192 N.W.2d 864 (1972). 
While the defendant’s testimony as to 
his frightened sta te  of mind stands un­
challenged by any of the testimony of 
the plaintiffs, I conclude th a t  the de­
fendant’s second shot, which was aimed 
directly a t the suspects, was clearly un­
reasonable and unjustified. The lighted 
conditions, the proximity of the actors, 
the physical appearance of the file, the 
nature  of the wounds, the defendant’s 
“w arn ing” shot during a “confronta­

tion” which he says caused him to fear 
for his life, the suspects’ i-etreat, and 
the defendant’s awareness both of his 
pa r tn e r’s presence at the suspects’ only 
available avenue of escape, and of his 
p a r tn e r’s knowledge of the warning 
shot, represent the circumstances which 
persuade me th a t  the defendant used ex­
cessive force in effecting the arrest.

[3] Flight on the pa r t  of one sus­
pected of crime does not, of itself, war­
ran t  the use of deadly force by an a r ­
resting officer. Mr. Ziedonis’ testimo­
ny, however, suggests tha t  he believed 
tha t  mere flight by one suspected of 
burglary justif ied  the use of his shot­
gun. I t  is only in certain aggravated 
circumstances th a t  a police officer may 
shoot the person he is a ttempting to a r ­
rest. See Rauls v. Hutto, 304 F.Supp. 
124 (D.C.La.1969) ; Jackson v. Martin, 
261 F.Supp. 902 (D.C.Miss.1966). This 
conclusion is bolstered by the language 
of § 939.49(1), Wis.Stats. (1971), which 
states in p a r t :

I t  is not reasonable to in­
tentionally use force intended or likely 
to cause death or g reat bodily harm 
for the sole purpose of defense of 

. property.”
I conclude tha t  this shooting constituted 
the use of unreasonable force under the 
circumstances. See McCluskey v. Stein- 
horst, 45 Wis.2d 350, 173 N.W.2d 148 
(1970).

Therefore, it  is ordered tha t  judgment 
be and hereby is entered in favor of the 
plaintiff, Edward Travis, and against 
the defendant, for compensatory dam­
ages in the amount of $1,500; in favor 
of the plaintiff, Edmund Clark, and 
against the defendant, for compensatory 
damages in the amount of $5,000; in fa ­
vor of the plaintiff, Buster Clark, and 
against the defendant, for special medi­
cal damages in the amount of $1767.31; 
and in favor of the plaintiff, Carrie S ta­
ples, and against the defendant, for spe­
cial medical damages in the amount of 
$279.83.

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