In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-2101 

SUSAN DOXTATOR, et al., 

Plaintiffs-Appellants, 

v.

ERIK O’BRIEN, et al., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Eastern District of Wisconsin. 

No. 19-cv-00137 — William C. Griesbach, Judge. 

____________________ 

ARGUED FEBRUARY 23, 2022 — DECIDED JULY 12, 2022 

____________________ 

Before SYKES, Chief Judge, and FLAUM and KANNE,∗ Circuit 

Judges. 

FLAUM, Circuit Judge. Plaintiffs Susan Doxtator, Arlie Doxtator, and Sarah Wunderlich, in their capacities as Special Administrators of Jonathon Tubby’s estate (the “Estate”), sued 

∗ Circuit Judge Kanne died on June 16, 2022, and did not participate 

in the decision of this case, which is being resolved under 28 U.S.C. § 46(d) 

by a quorum of the panel.
2 No. 21-2101 

various law enforcement entities under 42 U.S.C. § 1983 for 

their respective roles in the events leading to Tubby’s death. 

On October 19, 2018, Green Bay Police Department (GBPD) 

officers arrested Tubby and transported him to jail for booking. Upon entering the jail’s sally port (the secure entryway to 

the jail), however, Tubby became non-compliant, refusing to 

exit the squad car and concealing one hand under his shirt 

while threatening to “do it” if officers came any closer. The 

arresting officers called for backup, and Tubby was eventually 

forced out of the car with pepper spray after he continued to 

keep one hand under his shirt in a manner that, to officers on 

the scene, indicated he had a weapon. Even upon exiting the 

squad car, Tubby refused to surrender but instead rushed towards the exit in an apparent attempt to escape. When one of 

the officers on scene heard a “pop” that he believed to be a 

gunshot coming from the weapon he presumed Tubby was 

hiding, he discharged his firearm eight times, hitting Tubby 

with five shots. Soon after, Tubby was pronounced dead. 

The Estate filed suit, bringing § 1983 and state common 

law claims against the shooting officer, various other responding officers, the City of Green Bay, Brown County, and 

the municipalities’ law enforcement agencies. The defendants 

moved for summary judgment, which the district court 

granted. The Estate now appeals. For the following reasons, 

we affirm the district court’s entry of summary judgment. 

I. Background

A. Factual Background

Our description of the relevant facts mirrors the district 

court’s detailed recitation and also draws from the video recordings available in the record. At approximately 7:30 PM on 
No. 21-2101 3

October 19, 2018, Green Bay Police Department officers Colton Wernecke and his field training officer, Erik O’Brien, initiated a traffic stop of a vehicle with an unregistered license 

plate that had just run a red light. Instead of immediately responding to the squad car’s overhead lights, siren, and spotlight, the vehicle continued driving and then pulled into the 

parking lot of a nearby hotel. It drove through the parking lot 

before eventually pulling into a parking spot. The occupants 

of the vehicle initially gave false identifications, but Wernecke 

and O’Brien were ultimately able to identify the driver as 

Tubby and the passenger as his aunt, Theresa Rodriguez. A 

records check revealed that each had active warrants out for 

their arrest. 

O’Brien requested backup to provide cover, and another 

officer from GBPD, Tyler Haack, showed up. When the officers approached the vehicle, Haack observed what he believed 

to be marijuana, so the officers ordered Tubby and Rodriguez 

to exit the vehicle. O’Brien observed as Wernecke handcuffed 

Tubby behind his back, searched him, and placed him in the 

back of their squad car. Meanwhile, Haack handcuffed Rodriguez, placed her in his squad car, and left to bring her to the 

Brown County Jail. O’Brien and Wernecke waited in the parking lot for a tow truck to arrive and remove Tubby’s vehicle. 

It was approximately 7:35 PM when Wernecke placed 

Tubby in the squad car, handcuffed and secured by a seatbelt,

but by 7:45 PM, Tubby had moved his hands under his legs, 

removed his seatbelt, and moved his right hand under his 

shirt. At around 8:10 PM, Wernecke and O’Brien drove Tubby 

to the Brown County Jail to be booked on his outstanding arrest warrant and on a new marijuana charge. Tubby sat 
4 No. 21-2101 

quietly, leaning forward, for the twelve minutes it took to 

reach the jail.

Wernecke and O’Brien drove into the sally port of the jail 

around 8:22 that evening, where they parked and exited the 

squad car to escort Tubby inside. In accordance with the jail’s 

rules, the officers placed their gear and weapons in the trunk 

of the squad car before Wernecke walked around the vehicle 

to retrieve Tubby. When Wernecke opened the rear driver’s 

side door, he noticed Tubby’s hands were no longer behind 

his back but were instead balled up under his shirt. Wernecke 

repeatedly ordered Tubby out of the vehicle, but Tubby ignored each command. 

O’Brien then came around to Wernecke’s side to assist, 

and he too immediately noticed that Tubby had moved his 

hands to his front, where they were concealed under his 

clothes. To him, it appeared that Tubby was pressing a barrel 

of a gun against the inside of his shirt. When O’Brien attempted to pull Tubby’s foot out of the car, Tubby stated, 

“Don’t!” and, “I’ll fucking do it.” O’Brien slammed the door 

shut and told Wernecke, “I think he’s got a gun.” O’Brien then 

asked Wernecke what he thought, and Wernecke responded 

that he must have missed something in his search of Tubby’s 

person.

The officers then alerted the jail’s staff that they believed 

Tubby to be armed. O’Brien and Wernecke retrieved their 

weapons from the back of the squad car, took cover behind a 

nearby transport van, and radioed police dispatch for backup, 

reporting that “it looked like” Tubby had “something” in his 

hand. O’Brien later relayed to police dispatch that Tubby had 

something under his shirt pointed up to his chin and requested that an officer bring a shield for their protection. 
No. 21-2101 5

Starting at 8:30 PM, other officers, from both GBPD and the 

Brown County Sheriff’s Office (BCSO), began to arrive onscene. Among them was GBPD Lieutenant Nate Allen, the supervisor on duty that night, who spoke with the department’s

SWAT commander to develop a plan for removing Tubby 

from the squad car. They decided that Allen would drive a 

Bearcat, an armored SWAT vehicle, up near the squad car and 

that a team of officers with shields would open the rear door 

and command Tubby to exit the vehicle. If he did not comply, 

they would deploy a K-9 unit to pull him out. The plan 

changed, however, when Lieutenant Thomas Zeigle, the commander of the BCSO SWAT team, arrived and asserted his jurisdiction over the situation. He determined that official activation of a SWAT team was unnecessary given the number of 

officers, including SWAT-trained officers, already on scene. 

Instead, Zeigle decided they would first break the back window of the squad car to establish better communication with 

and visibility of Tubby. If they couldn’t coax him out of the 

vehicle with words, Zeigle decided they would then deploy 

pepper spray to get a reaction from Tubby and possibly force 

him out of the vehicle and into the open, where he would

likely surrender. 

The officers settled on this plan and began to set it into 

motion. One group of officers formed an arrest team, another 

spread out along the perimeter of the sally port’s open door 

to prevent Tubby from escaping, and another piled into the 

Bearcat vehicle. At approximately 9:02 PM, the Bearcat moved 

into position, pulling up next to the driver’s side of the squad 

car. While this was happening, Tubby appeared to put something in his mouth through his shirt, and he said, “I’ll fucking 

do it.” Shortly after this, Tubby turned towards the back window and repeated, “I’ll fucking do it.” 
6 No. 21-2101 

At approximately 9:06 PM, Officer Eric Allen of GBPD 

stood up through the top of the Bearcat’s turret and fired a 44-

millimeter wooden dowel into the rear windshield of the 

squad car. Part of the window shattered, and Tubby recoiled, 

saying, “Fuck you.” Allen then said, “Jonathon, put your 

hands up where I can see them,” and, “Jonathon, put your 

hands up.” Tubby maneuvered himself into the corner of the 

squad car and began crying. He yelled, “Okay!” and then 

said, “What are you guys doing to me?” Shortly after that, he 

said, “Help me,” and “I’m scared,” though he never showed 

both of his hands to the officers. 

To get a better view into the backseat of the squad car, Officer Allen fired a second wooden dowel into the window, 

and then another officer in the Bearcat used a tool to break out 

the remaining pieces of the windshield. At this point, Allen 

had a better view into the car, and he believed he saw Tubby 

facing the now-broken rear windshield with his hands still 

tucked under his shirt, holding something under his chin. Allen made repeated commands to Tubby to put his hands up, 

but Tubby ignored each one. Around 9:09 PM, Allen used a 

loudspeaker from the Bearcat to tell Tubby, “Jonathon, put 

your hands up.” Tubby did not comply but responded, “What 

are you guys doing to me?” Allen then implored Tubby to 

obey their commands, saying, “Jonathon, put your hands up, 

bud, so I can see them. Come on, Jonathon. Jonathon, we don’t 

want to hurt you. Put your hands up, bud. Come on, Jonathon.” But, still, Tubby refused to comply and kept at least 

one of his hands concealed under his shirt. 

Allen, however, did not give up. At one point, he saw that 

Tubby’s left hand was empty and outside of his shirt. When 

Jonathon looked out the rear window, Allen said, “Jonathon, 
No. 21-2101 7

put your hands up for me, bud. Put your hands up for me 

Jonathon. I can see that one is clear. Let me see your other 

hand. Let me see your other hand, bud.” Still, Tubby refused 

to comply. 

Less than a minute later, someone in the Bearcat handed a 

canister of pepper spray up to Allen, and, without warning 

Tubby, Allen deployed some of it into the rear of the squad 

car. 

Tubby began yelling and bouncing up and down in the 

rear seat. He then scrambled out of the rear windshield and 

onto the closed trunk of the squad car. He stood up and faced 

out towards the officers, but he kept his right hand concealed 

under his shirt. Unable to determine whether he was hiding a 

weapon under his shirt, one officer, Sergeant Thomas Denney, fired a bean bag, which struck Tubby in the lower abdomen and caused him to fall off the trunk of the squad car and 

onto the ground. Tubby quickly rose to his feet and moved 

towards the open sally port door, where several officers—including Officer O’Brien—were standing. 

While this was happening, another officer released the K9 

unit, Pyro, from the Bearcat on a 15-foot lead, and the dog 

closed in on Tubby as he was making his way towards the 

sally port entrance. Pyro locked onto Tubby’s rear-end, and 

the officer controlling Pyro pulled back on the lead to keep 

Tubby from advancing towards the sally port entrance. Video 

recorded from a squad car parked outside of the sally port 

shows officers scattering to find cover as this was transpiring. 

Sergeant Denney fired another beanbag round at Tubby, 

causing him to fall to the ground. While he was falling, his 

right hand fell above his head, empty. Then, as Pyro pulled 

Tubby backwards, O’Brien heard a “pop” and fired his gun 
8 No. 21-2101 

eight times, striking Tubby with five of those rounds. All told, 

approximately ten seconds passed between Tubby exiting the 

squad car via the rear windshield and O’Brien shooting him. 

When Tubby was down, officers rushed in to subdue him 

and found that he was unarmed. They called for medical assistance, and nurses administered first aid in an attempt to 

save Tubby’s life. Tubby was pronounced dead at the scene. 

The medical examiner later concluded his cause of death was 

the gunshot wounds he sustained from O’Brien. 

B. Procedural Background

Following Tubby’s death, the Estate filed suit, raising the 

following list of claims: Count 1, § 1983 excessive force claim 

against Officer O’Brien; Count 2, § 1983 failure-to-intervene 

claim against Deputy Mleziva, Deputy Winisterfer, and John 

Does; Count 3, § 1983 failure-to-train claim against Chief 

Smith, Sheriff Delain, BCSO Captain Heidi Michel, the City of 

Green Bay, and Brown County; Count 4, § 1983 excessive 

force claim against City of Green Bay; Count 5, state-created 

danger claim against Lieutenant Zeigle, Brown County, and 

the city Green Bay; Count 6, battery against Officer O’Brien; 

Count 7, negligence against Officer O’Brien, the City of Green 

Bay, and Brown County; Count 8, negligence against Lieutenant Zeigle, the City of Green Bay, and Brown County. The Estate sought monetary and injunctive relief. 

The district court dismissed all of the Estate’s claims on 

summary judgment. It concluded that no reasonable jury 

could conclude that O’Brien’s decision to fire his gun was unreasonable given the circumstances as he understood them at 

the time, and, for this reason, it dismissed the § 1983 claim. It 

further held that even if O’Brien’s use of force was 
No. 21-2101 9

unreasonable, qualified immunity barred the Estate’s suit 

against him. With regard to the failure-to-intervene and failure-to-train claims, the district court dismissed the claims on 

the grounds that the underlying excessive force claim lacked 

merit. The district court dismissed the state-created danger 

claim because, it held, the doctrine did not apply to situations 

where the harm suffered by the plaintiff was caused directly 

by the state, rather than a private actor. In such situations, the 

district court reasoned, § 1983 is the appropriate vehicle for 

seeking relief. And, finally, given the dismissal of all the 

claims over which it had original jurisdiction, the district 

court declined to exercise supplemental jurisdiction over the 

remaining state law claims. The Estate now appeals.

II. Discussion

We review summary judgment rulings de novo. Abdullahi 

v. City of Madison, 423 F.3d 763, 769 (7th Cir. 2005). “Summary 

judgment is warranted when the evidence, when viewed in a 

light most favorable to the non-moving party, presents ‘no 

genuine issue as to any material fact’ such that ‘the moving 

party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “[T]here is no issue for trial unless 

there is sufficient evidence favoring the nonmoving party for 

a jury to return a verdict for that party. If the evidence is 

merely colorable or is not significantly probative, summary 

judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 249–50 (1986) (citations omitted). 

The district court took a domino-like approach to dismissing the Estate’s case in its entirety: When the § 1983 claim 

against O’Brien fell, the failure-to-train and failure-to-intervene claims based on O’Brien’s actions also fell, which, in conjunction with the dismissal of the state-created danger claim, 
10 No. 21-2101 

caused the state law claims to fall (albeit only to state court). 

We analyze the claims in this same order, beginning with the 

§ 1983 claim against O’Brien. 

A. The Estate’s § 1983 Claim Against O’Brien 

The Estate’s primary cause of action is its claim under 

§ 1983 against O’Brien alleging use of excessive force. Defendants assert summary judgment was proper on this claim because the Estate cannot show O’Brien’s use of deadly force 

was unreasonable. In the alternative, they argue that even if 

the use of deadly force was unreasonable, O’Brien is entitled 

to qualified immunity.

After reviewing the tragic events leading to Tubby’s 

death, we hold that O’Brien’s conduct was reasonable under 

the circumstances and that, even if he had violated a constitutional right belonging to Tubby, it was not a clearly established right. As such, we conclude that there was no constitutional violation and that, even if there were, qualified immunity would shield O’Brien from suit.

1. Did O’Brien Violate a Constitutional Right Belonging to Tubby?

In broad terms, § 1983 authorizes suits against government officials who violate a person’s constitutional rights. 42 

U.S.C. § 1983. “A police officer’s use of deadly force on a suspect is a seizure within the meaning of the Fourth Amendment,” so an unreasonable seizure is a violation of the Fourth 

Amendment cognizable under § 1983. Ybarra v. City of Chi., 

946 F.3d 975, 978 (7th Cir. 2020) (quoting Horton v. Pobjecky, 

883 F.3d 941, 948 (7th Cir. 2018)); see Graham v. Connor, 490 

U.S. 386, 394 (1989). “[A]ll claims that law enforcement officers have used excessive force ... should be analyzed under the 
No. 21-2101 11

Fourth Amendment and its ‘reasonableness’ standard ....” 

Graham, 490 U.S. at 395 (emphasis omitted). This reasonableness standard is objective, in the sense that it is the facts and 

circumstances presented to the officer at the time of the conduct at issue, rather than the officer’s subjective intent, that 

matter. Horton, 883 F.3d at 950. 

With regard to the use of deadly force, the Supreme Court 

has clarified:

Where the officer has probable cause to believe 

that the suspect poses a threat of serious physical harm, either to the officer or to others, it is 

not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect 

threatens the officer with a weapon ..., deadly 

force may be used if necessary to prevent escape, and if, where feasible, some warning has 

been given.

Tennessee v. Garner, 471 U.S. 1, 11–12 (1985); see also Ybarra, 946 

F.3d at 978 (“A suspect has a constitutional right not to be shot 

by an officer unless the officer ‘reasonably believes that the 

suspect poses a threat to the officer or someone else.’” (quoting Horton, 883 F.3d at 948)). 

In evaluating whether an officer used excessive force, we 

are wary of hindsight bias and acknowledge the real challenges that officers regularly face on the job. Graham, 490 U.S. 

at 396–97. These challenges often turn dangerous, calling for 

“split-second judgments” to safeguard both the public and 

the responding officers “in tense, uncertain, and rapidly 

evolving” circumstances. Id. at 397. We remain mindful that 

the opportunity to debate the merits of various law 
12 No. 21-2101 

enforcement responses “in the peace of a judge’s chambers” 

is a privilege unavailable to most officers in real time. Id.

With all of this in mind, we turn to back to the events that 

played out in the sally port on the evening of October 19. Even 

viewing them in the light most favorable to the Estate, we conclude that no reasonable jury could find O’Brien’s conduct 

unreasonable under the circumstances.

First and foremost, Tubby intentionally led the officers to 

believe he was armed by keeping his hand concealed under 

his shirt in a manner that imitated the shape of a gun, and he 

threatened repeatedly to “do it” as officers attempted to persuade him to surrender. By doing so, he effectively escalated 

the situation into an armed standoff between himself and police. Furthermore, even when he eventually did exit the squad 

car after being forced out with pepper spray, Tubby did not 

surrender. Instead, even after he was hit with a bean bag 

round, he stood up and ran towards the exit and the group of 

officers standing thereby. Given that Tubby was undeterred 

by the officers’ attempts to subdue him via less forceful means

and given that Tubby himself seemed to be intentionally communicating to the officers that he was armed and not afraid to 

“do it,” it was reasonable for O’Brien to deploy deadly force 

as Tubby rushed towards the exit and the nearby officers. 

The Estate argues that O’Brien and the other officers 

should have known that Tubby was unarmed because Officer 

Wernecke had already searched him before placing him 

handcuffed in the back of the squad car. But by the time the 

officers reached the sally port and opened the door to let 

Tubby out, he had squirmed his handcuffed hands from behind his back. It would have been reasonable for O’Brien and 
No. 21-2101 13

Wernecke to infer that Tubby had done this with a particular 

goal in mind—for instance, to retrieve a weapon Wernecke 

had not found on Tubby’s person or one that was laying in 

the back of the squad car. In short, the fact that Tubby had 

wriggled his handcuffed hands under his feet and then began 

acting like he was concealing a weapon under his shirt was 

more than enough to justify O’Brien’s belief that he was 

armed, notwithstanding Wernecke’s earlier search. 

Moreover, the record makes crystal clear that the officers 

honestly believed that Tubby was armed. Though the reasonableness inquiry under the Fourth Amendment is objective—

and therefore subjective intentions and beliefs do not matter—the fact that so many officers all acted in accordance with 

the idea that Tubby was armed lends credence to the reasonableness of the belief that he was indeed armed. The veracity 

of this belief appears in many forms. First, O’Brien’s immediate comment to Wernecke upon slamming the squad door 

shut after they attempted to get Tubby out was: “I think he’s 

got a gun.” The pair then proceeded to call in SWAT-trained

personnel, who attempted to interact with Tubby only from 

the turret of an armored vehicle. And when Tubby finally exited the back of the squad car and rushed towards the sally 

port exit, video evidence shows Wernecke—the very officer 

who had originally searched Tubby at the time of his arrest—

jumping over a wall for cover. At the same time, many other 

officers can be seen scrambling for cover with hands on their 

weapons. These are not the actions of officers who believe a 

suspect to be unarmed. 

The Estate also repeatedly claims that Tubby was “subdued” at the time O’Brien shot him, because he was “handcuffed, blinded, face-down on the ground, and being attacked 
14 No. 21-2101 

by a police canine.” This, the Estate argues, makes O’Brien’s 

decision to shoot unreasonable. We carefully reviewed the 

record and could find no clear video showing how Tubby was 

positioned when O’Brien shot him. The autopsy photos are 

consistent with his being shot while in a prone position, however, and the Estate’s expert testified that the abrasions on his 

chin were sustained pre-mortem, indicating he may have 

fallen to the ground before being shot. Viewing all facts in the 

light most favorable to the Estate, we must accept the Estate’s 

contention that Tubby was face-down on the ground at the 

time O’Brien shot him. 

Even so, however, we conclude that no reasonable jury 

could find O’Brien’s decision unreasonable under the circumstances. First, being on one’s stomach on the ground does not 

preclude one from firing a gun, so the fact that he was facedown on the ground and handcuffed does not render him 

“subdued,” especially if officers believed that one of his 

hands contained a firearm. Additionally, by the time he was 

shot, Tubby had thwarted all other attempts officers had

made to subdue him. These included: handcuffing him, 

spraying him with pepper spray, firing two bean bag rounds 

at him, and releasing a canine unit to apprehend him. Even 

after all of these measures, Tubby continued to rush towards 

the sally port exit and the officers guarding it. So, although 

Tubby was on the ground at the time O’Brien fired his gun in 

response to what he believed to be a gunshot, it was reasonable for O’Brien to believe that Tubby was not in fact subdued 

and would imminently get back up to his feet to rush for the 

exit. Indeed, mere seconds earlier, O’Brien had observed 

Tubby do just that after being shot with the first bean bag 

round. 
No. 21-2101 15

Finally, the Estate argues that O’Brien’s conduct was unreasonable because, by the time he fired his weapon, he had 

seen each of Tubby’s hands empty and thus should have deduced that he was unarmed. The district court properly rejected this argument. Even if O’Brien had seen each of 

Tubby’s hands empty, he never saw them simultaneously

empty and thus could not be sure that Tubby had not simply 

moved his weapon from one hand to the other underneath his 

shirt. Moreover, although the Estate insists that O’Brien 

should have known that both of Tubby’s hands were empty, 

the record reveals that only about ten seconds elapsed between Tubby’s exit from the squad car and O’Brien’s discharge of his firearm. And this was a hectic ten seconds: multiple bean bag rounds were fired, officers were frantically 

shuffling around the sally port’s exit with guns drawn, a canine unit was released to pursue Tubby, and Tubby fell multiple times. To expect the responding officers to have kept a 

running mental inventory of exactly what was in which of 

Tubby’s hands at each moment is unreasonable given the 

pandemonium playing out in the sally port.

2. Assuming Arguendo that a Constitutional Right of 

Tubby Was Violated, Was Such a Right “Clearly Established?” 

Even assuming O’Brien had violated a constitutional right 

belonging to Tubby, the Estate has not put forth any cases 

convincing us that the right was “clearly established.” We 

therefore further hold that O’Brien is entitled to qualified immunity shielding him from suit. 

The doctrine of qualified immunity shields public officials 

from being sued in their official capacities unless their actions 

“violated a statutory or constitutional right that was clearly 
16 No. 21-2101 

established.” Plumhoff v. Rickard, 572 U.S. 765, 778 (2014) (internal quotation marks omitted). The Supreme Court has held 

that a right is “clearly established” for qualified immunity 

purposes if its “contours were sufficiently definite that any 

reasonable official in the defendant's shoes would have understood that he was violating it.” Id. In other words, “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. Al-Kidd, 563 U.S. 

731, 741 (2011). And in order to answer the question “beyond 

debate,” the Supreme Court has repeatedly emphasized that 

the clearly established law must share specific details with the 

facts of the case at hand. White v. Pauly, 137 S. Ct. 548, 552 

(2017) (“[T]he clearly established law must be ‘particularized’ 

to the facts of the case.” (quoting Anderson v. Creighton, 483 

U.S. 635, 640 (1987)). Though to defeat a defendant’s assertion 

of qualified immunity plaintiffs need not produce a case directly on point, defining the applicable law “at a high level of 

generality” simply will not do. Al-Kidd, 563 U.S. at 741–742. 

Only in the “rare ‘obvious case’ [will] the unlawfulness of the 

officer's conduct [be] sufficiently clear [without] existing precedent ... address[ing] similar circumstances.” D.C. v. Wesby, 

138 S. Ct. 577, 590 (2018). “[This] sounds like a high bar because it is—qualified immunity protects ‘all but the plainly 

incompetent or those who knowingly violate the law.’” Lopez 

v. Sheriff of Cook Cnty., 993 F.3d 981, 988 (7th Cir. 2021) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 

The Estate offers only two cases purporting to establish 

that O’Brien violated a “clearly established” right belonging 

to Tubby. Neither is at all close to being “particularized to the 

facts of [this] case,” Pauly, 137 S. Ct. at 552, and, therefore, neither satisfies the “high bar,” Lopez, 993 F.3d at 988, required to 

defeat the defendant’s assertion of qualified immunity. 
No. 21-2101 17

First, the Estate points to Garner for its proposition that 

“[a] police officer may not seize an unarmed, nondangerous 

suspect by shooting him dead.” 471 U.S. at 11. But the Supreme Court itself has held that Garner is “cast at a high level 

of generality” and therefore cannot clearly establish rights for 

the purposes of qualified immunity, except in the most obvious cases. Brosseau v. Haugen, 543 U.S. 194, 199 (2004). As illustrated by our discussion in the previous section, “[t]he present case is far from the obvious one where ... Garner alone 

offer[s] a basis for decision.” Id.

Then the Estate cites this Circuit’s decision in Becker v. 

Elfreich, 821 F.3d 920 (7th Cir. 2016), where we held that a reasonable jury could conclude that a police officer used excessive force in executing a search warrant when he deployed a 

police canine to apprehend an arrestee using the “bite and 

hold” technique. Id. at 927–28. While the discussion in Becker

includes more details than the rule from Garner, those details

share very few similarities with the instant case, and Becker 

therefore cannot have clearly established the right asserted by 

the Estate. Importantly, the arrestee in Becker never displayed 

any conduct suggesting to the officers that he was armed. In 

fact, he “did not exhibit any sort of aggressive behavior toward [the arresting officer] or anyone else.” Id. at 927. “Nor 

was [the arrestee] actively resisting arrest or attempting to 

evade arrest by flight.” Id. These dissimilarities with the instant case are more than sufficient for us to conclude that

Becker provides no help to the Estate’s attempt to defeat 

O’Brien’s assertion of qualified immunity. 

* * * 

We hold that, given Tubby’s conduct, no reasonable jury 

could conclude that O’Brien’s use of force violated Tubby’s 
18 No. 21-2101 

Fourth Amendment rights. Furthermore, we hold that 

O’Brien is entitled to qualified immunity because the right he 

is alleged to have violated was not “clearly established” at the 

time. For these reasons, we affirm the district court’s entry of 

summary judgment on the Estate’s § 1983 claim against 

O’Brien. 

B. The Failure-to-Train and Monell Claims Against 

the City of Green Bay and Chief Smith

The Estate also brings claims against the City of Green Bay 

and GBPD Chief Smith. In particular, the Estate alleges that 

both failed to properly train their officers in how to remove a 

non-compliant arrestee from a squad car, and it alleges that 

the City has a widespread practice of using excessive force—

a claim it brings under Monell v. Department of Social Services 

of City of New York, 436 U.S. 658 (1978). 

The district court properly dismissed each of these claims 

on summary judgment because it had dismissed the underlying claim against O’Brien. With respect to the Monell claim, “a 

municipality cannot be liable under Monell when there is no 

underlying constitutional violation by a municipal employee.” Sallenger v. City of Springfield, Ill., 630 F.3d 499, 504 

(7th Cir. 2010). With respect to the failure-to-train claim, “[a] 

failure to train theory or a failure to institute a municipal policy theory requires a finding that the individual officers are 

liable on the underlying substantive claim.” Tesch v. Cty. of 

Green Lake, 157 F.3d 465, 477 (7th Cir. 1998). Because we affirm 

the dismissal of the § 1983 claim against O’Brien, we also affirm the dismissal of the failure-to-train and Monell claims 

against the City of Green Bay and Chief Smith. 
No. 21-2101 19

C. The Failure-to-Intervene Claims Against Deputies Mleziva and Winisterfer 

The Estate also alleges that two of the other officers present in the sally port are liable for failing to intervene and prevent Tubby’s death. We affirm the district court’s entry of 

summary judgment on these claims. 

“An officer who is present and fails to intervene to prevent

other law enforcement officers from infringing the constitutional rights of citizens is liable under § 1983 if that officer had 

reason to know: (1) that excessive force was being used, (2) 

that a citizen has been unjustifiably arrested, or (3) that any 

constitutional violation has been committed by a law enforcement official; and the officer had a realistic opportunity to intervene to prevent the harm from occurring.” Yang v. Hardin, 

37 F.3d 282, 285 (7th Cir. 1994) (emphasis omitted). In sum, an 

officer must know that a citizen’s rights are being infringed, 

and he must have a “realistic opportunity” to intervene. 

“Whether an officer had sufficient time to intervene or was 

capable of preventing the harm caused by the other officer is 

generally an issue for the trier of fact unless, considering all 

the evidence, a reasonable jury could not possibly conclude 

otherwise.” Abdullahi, 423 F.3d at 774 (emphasis omitted) 

(quoting Lanigan v. Vill. of East Hazel Crest, Ill., 110 F.3d 467, 

478 (7th Cir. 1997)). 

In this case, neither Deputy Mleziva nor Deputy Winisterfer had a realistic opportunity to intervene. The videos from 

the record reflect that many of the responding officers (understandably, we think) had their guns drawn and pointed at 

Tubby as he rushed towards the sally port exit. Because gunshots happen instantaneously, there was no period of time before O’Brien actually fired in which Mleziva and Winisterfer 
20 No. 21-2101 

could have known that he was going to shoot, at least not with 

any higher likelihood than any of the other officers who had 

their guns drawn. The deputies were also likely focused on 

the supposedly armed, and possibly suicidal or homicidal, 

suspect who seemed to be attempting to escape or attempting 

to attack the officers towards whom he was rushing. It is 

therefore wholly unrealistic to expect the deputies to have 

trained their attention on O’Brien rather than said suspect or 

any of the other officers who had their guns drawn. Because 

no reasonable jury could conclude that either Deputy Mleziva 

or Deputy Winisterfer had a realistic opportunity to intervene, summary judgment on these failure-to-intervene claims 

was warranted.

D. The Failure-to-Train Claims Against Brown 

County and Brown County Sheriff’s Office

The Estate also brought failure-to-train claims against 

Brown County and certain officers of the Brown County Sheriff’s Office, alleging that these entities failed to properly train 

Deputies Mleziva and Winisterfer about how to intervene 

when an officer is using excessive force. These claims fail for 

the same reason as the failure-to-train claims against the City 

of Green Bay and the Green Bay Chief of Police: the underlying substantive claims—this time against Mleziva and Winisterfer—lack merit. See Tesch, 157 F.3d at 477 (“A failure to train 

theory or a failure to institute a municipal policy theory requires a finding that the individual officers are liable on the 

underlying substantive claim.”).

E. The State-Created Danger Claim 

Lastly, the Estate brought a § 1983 claim against Zeigle, the 

City of Green Bay, and Brown County, alleging that these 
No. 21-2101 21

entities violated Tubby’s constitutional right to due process. 

In particular, the Estate brings this claim under the state-created danger exception to the rule pronounced by the Supreme 

Court in Deshaney. But the Estate misunderstands the holding 

from Deshaney, and we hold that the facts of this case do not 

fit into the state-created danger exception. 

In DeShaney v. Winnebago County Department of Social Services, a young boy had been in and out of hospitals with injuries suggesting that his father was physically abusive. 489 U.S. 

189, 192–93 (1989). Although government officials took minor 

steps towards monitoring his safety, they allowed the boy’s 

father to retain custody. Id. After the father eventually beat 

the boy so severely that he was left with a permanent mental 

disability, the boy and his mother sued the government officials for failing to remove him from his father’s care. Id. at 193. 

The Supreme Court affirmed the decision of this Court, which 

had, in turn, affirmed the district court’s dismissal of the case 

on summary judgment. Id. at 193–94. The Supreme Court held 

“that a State's failure to protect an individual against private 

violence simply does not constitute a violation of the Due Process Clause.” Id. at 197. 

In DeShaney, the Court suggested that a different result 

may have issued under either of two different circumstances: 

(1) instances where the state has a “special relationship” with 

(i.e., involuntary custody of) the victim such that the victim is 

unable to protect himself, and (2) instances where the state 

takes affirmative steps that subject the victim to harm or make 

the victim more vulnerable to harm (the “state-created danger” exception). Id. at 199–201. Lower courts have since transformed these into full-blown exceptions to Deshaney’s holding 

that a state does not violate the Due Process Clause by failing 
22 No. 21-2101 

to protect an individual against private violence, though this 

Court has described the exceptions as “limited” and “narrow.” First Midwest Bank Guardian of Est. of LaPorta v. City of 

Chi., 988 F.3d 978, 988 (7th Cir. 2021), cert. denied sub nom. First 

Midwest Bank v. City of Chi., 142 S. Ct. 389 (2021). 

It is the state-created danger exception under which the 

Estate brings its claims against Zeigle and the two municipalities. The Estate alleges that Zeigle and the municipalities (via 

their police officers) created the danger that eventually led to 

Tubby’s death by deploying an ill-conceived plan to use pepper spray to induce Tubby to exit the squad car. This plan, the 

Estate claims, inevitably led to the hectic scene that played out 

and ultimately caused O’Brien to shoot Tubby. 

But in attempting to take advantage of this “narrow” exception to Deshaney, the Estate misapplies Deshaney’s holding 

to an entirely different scenario and then argues that the same 

exceptions should apply. Deshaney held that the state does not 

violate the constitution by failing to protect an individual 

against “private violence.” Id. at 197 (emphasis added). This 

Court has affirmed that this rule applies only to situations in 

which the harm is perpetrated by private actors. See, e.g., Wilson v. Warren Cty., Ill., 830 F.3d 464, 469 (7th Cir. 2016) (“Due 

Process does not require a state to protect citizens from private acts unless the state itself creates the danger.”). Limiting 

Deshaney’s rule to instances of private harm makes sense, too, 

as of course the government violates constitutional rights 

when it directly perpetrates unjustified violence against an individual. But in such cases, 42 U.S.C. § 1983 allows the victim 

to seek redress directly for the harm rather than under a significantly more attenuated “state-created danger” theory. 
No. 21-2101 23

None of the cases cited by the Estate demand a different 

result. For instance, the Estate argues that this Court’s holding 

in White v. Rochford, 592 F.2d 381 (7th Cir. 1979), suggests that 

the state-created danger doctrine does apply to public harms. 

White, however, provides the Estate no help. In that case, 

which was decided a decade before Deshaney, police officers 

arrested a man after pulling him over on a Chicago highway 

but left the minor children he was transporting on the side of 

the road with no way to get home. The Court held that the 

officers’ failure to protect the children from the harsh winter 

weather constituted a violation of their due process rights and 

allowed the case to proceed under 42 U.S.C. § 1983. 

But the Estate’s attempt to stretch this holding is unpersuasive. First, weather, unlike a police officer, is not a public 

actor, and the case therefore does not stand for the proposition the Estate wants it to—namely, that the state-created danger exception to Deshaney allows plaintiffs to recover for 

harms perpetrated directly by public officials. Nor does the 

case even mention the phrase “state-created danger,” which 

makes sense because it was decided ten years before 

Deshaney. White, then, cannot stand for the proposition that 

the state-created danger exception to Deshaney should be extended to harm affirmatively perpetrated by public actors. In 

such instances, the proper vehicle for redress is a § 1983 claim 

against the entities who perpetrated the harm, seeking redress 

directly for that harm. None of the other cases cited by the 

Estate come from this Circuit, and, moreover, none involves 

facts analogous to those here. 

Finally, the Estate claims that we will create a “loophole in 

liability” if we hold that the state-created danger exception to 

the Deshaney rule applies only to private harms. The Estate’s 
24 No. 21-2101 

only reason for this assertion is that such a rule would supposedly preclude it from recovering anything if a jury determined that a reasonable officer could have believed that 

Tubby was armed. In such a situation, O’Brien would not be 

liable, and, the Estate claims, there would be no recourse for 

the officers who forced out into the open a man they believed 

to be armed, thereby creating a fraught situation likely to 

cause harm.

The Estate’s conclusion on this point is simply not true. In 

such a situation, state common law may provide recourse via 

tort claims (like those the Estate brought in this very case), 

and even if state law did not allow for such claims, it would 

not follow that this Court can or must step in and use the Constitution of the United States to fill that gap.

* * * 

In sum, the Estate ignores the nuances of Deshaney and its 

outgrowth of exceptions. The Estate attempts to frame the 

“state-created danger” exception as a claim unto itself and extracts the applicable elements from their context, copying 

them into its brief as if they make out a free-standing claim. 

But Deshaney was limited to private acts of harm. Exceptions 

to Deshaney’s holding thus also apply only to instances involving private acts of harm. This case involves harm carried out 

by public law enforcement officers, and therefore Deshaney 

and the exceptions thereto are wholly inapposite. We therefore affirm the lower court’s entry of summary judgment on 

the Estate’s state-created danger claim. 
No. 21-2101 25

III. Conclusion

Tragic as the consequences were, O’Brien’s conduct did 

not violate Tubby’s constitutional rights to be free from unreasonable seizures, and, additionally, qualified immunity

shields O’Brien from liability. For both of these reasons, the 

district court’s entry of summary judgment on the Estate’s 

§ 1983 claim was proper. Without that claim, the other dependent federal claims must also be dismissed. The last remaining federal claim, the state-created danger claim, has no 

relevance to the facts of this case and should therefore be dismissed. Without any federal claims over which it had original 

jurisdiction, the district court’s decision not to exercise supplemental jurisdiction over the pendent state law claims was 

not an abuse of discretion. For all of these reasons, we AFFIRM

the district court’s entry of summary judgment.