The underlying dispute centers on a March 16, 2023 shooting in Oshkosh, Wisconsin. Sergeant Sarah Pauer shot Montreal Clark once in the face after Clark, sitting in a car police believed he had stolen, backed into a squad car and then began pulling forward while Pauer stood in front of the vehicle. Clark survived and sued Pauer under the Fourth and Fourteenth Amendments, alleging excessive force. Clark's account is that he never saw the officers, never heard them knock, and was simply pulling out of a parking space without knowing police were present.
The court, in a decision by U.S. District Judge Byron B. Conway of the Eastern District of Wisconsin, declined to reach the first prong of the qualified immunity analysis — whether Pauer actually violated the Constitution — and resolved the case entirely on the second prong: whether the right was clearly established. Viewing the facts in the light most favorable to Clark, the court held that Clark had not identified any case clearly establishing that Pauer's conduct violated the Fourth or Fourteenth Amendments, and that courts have repeatedly held that officers are entitled to qualified immunity under similar circumstances.
Clark's primary argument invoked what the court called the officer-created danger exception to qualified immunity, drawn from the Seventh Circuit's 1993 decision in Estate of Starks v. Enyart. That doctrine holds that officers who unreasonably create a physically threatening situation cannot be immunized for the resulting use of deadly force. The court rejected its application here, noting that Pauer's bodycam showed she found herself in front of the car before Clark attempted to or actually moved forward, and was retreating when she fired. The court acknowledged room to debate whether the officers' tactics — no emergency lights, no verbal identification of themselves, and no verbal commands before Pauer shouted immediately before firing — were wise, but cited Seventh Circuit precedent holding that bad tactics do not negate qualified immunity.
Clark also argued that Pauer was not directly in front of the vehicle and that the car's front wheels were turned away from her. The court rejected both points. On the wheel position, it cited Tousis v. Billiot for the proposition that cars move in an arc, not horizontally, and added that noticing tire angle is the kind of detail an officer in a high-pressure situation cannot reasonably be expected to register in a split second.
Clark further argued that disputed facts preclude summary judgment on qualified immunity. The court held that argument appeared to largely reflect views the Supreme Court rejected in Saucier v. Katz and Pearson v. Callahan, and that courts may and routinely do grant summary judgment on qualified immunity grounds while viewing disputed facts in the non-movant's favor — which the court did here.
The court granted Pauer's motion for summary judgment and dismissed the action with prejudice.