CHICAGO — A federal appeals court this week ruled that an excessive force lawsuit brought against a Kenosha police officer can go to trial.
A three-judge panel of the Seventh Circuit Court of Appeals rejected Officer Ryan McDonough’s request to dismiss the suit. His attorneys claim that McDonough is entitled to qualified immunity from civil suit for injuries he may have caused when he tasered Joseph S. Ferguson during a July 2019 arrest.
According to Ferguson’s suit, after the arrest, which occurred at 5 a.m. on July 9, 2019, at 23rd Street and 60th Avenue, two Taser prongs had to be removed from Ferguson, 28, as they had been fired at close range.
After filing the suit from prison, both Ferguson and attorneys for McDonough filed motions for summary judgment claiming the dash cam video proves their case.
Federal Magistrate Nancy Joseph found that the video doesn’t conclusively support either McDonough’s or Ferguson’s version of what occurred during the arrest. Instead, jurors could find that Ferguson wasn’t actively resisting arrest when he was tasered. That would make McDonough’s use of a Taser an unreasonable escalation of force and a violation of Ferguson’s Fourth Amendment protection against excessive use of force.
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Joseph also noted that a jury could find that Ferguson had been struggling with McDonough moments before he was stunned making use of the Taser reasonable.
Since there were competing interpretations of the events leading to the arrest, Joseph said it was up to a jury to determine what actually happened.
Dash cam footage viewed
The appellate judges wrote that pre-trial decisions like Joseph’s generally can’t be appealed. However, there is a narrow exception when a video exists that “utterly discredits” a district court’s finding that a genuine factual dispute prevents a determination of a defendant’s qualified immunity defense.
The judges reviewed the dash cam video and found that it doesn’t discredit Joseph’s finding that a factual dispute remains regarding whether Ferguson was actively resisting or not.
“Portions of the video are clear, but the rest is open to interpretation, as the district court (Joseph) found,” Appellate Judge Thomas Kirsch II wrote in the 18-page opinion.
What the video doesn’t clearly show is what occurred during “a tussle” when McDonough is handcuffing Ferguson, Kirsch writes. Ferguson is moving but it’s difficult to determine if he is trying to escape McDonough’s grasp, is being pushed or, is tripping over his fallen pants.
According to the appeals opinion:
McDonough pulls Ferguson’s hoodie, t-shirt and hat over his head and tosses the items. Seconds later, Ferguson stands up, leans away from McDonough, raises his hands, which are open, and his pants are at his knees. He says something inaudible on the recording, McDonough steps back from Ferguson, grabs his Taser and deploys it at Ferguson’s chest.
Ferguson falls to the ground and another officer enters the video for the first time to help McDonough finish handcuffing Ferguson.
“Because Officer McDonough’s arguments ask us to resolve disputed issues of fact and the dash cam video does not utterly discredit the district court’s findings, we lack jurisdiction over this interlocutory appeal. The appeal is dismissed,” Kirsch wrote.
In a prepared statement, Ferguson’s attorney, Kevin Jason, commended the court’s decision.
“Qualified Immunity is meant to protect officers only in novel legal landscapes, where a reasonable officer could be confused about what the Constitution requires.
“Clearly, tasing a person is a significant escalation of force and any reasonable officer would know that verbal noncompliance or passive resistance is not a justification to tase someone,” Jason wrote.
Ferguson was subsequently charged with battery, witness intimidation, resisting an officer and other offenses. Most were dismissed but he pled guilty in October 2018 to operating after revocation, disorderly conduct, and bail jumping and is currently incarcerated at the Winnebago Correctional Institution, according to online court records.
His suit seeks $400,000 as compensation for the scars left by the Taser prongs, mental trauma, agony and pain.
No trial date has been set in the case.
IN PHOTOS: Remembering Sept. 11
Remembering Sept. 11

Red roses are placed next to names names of victims of the Sept. 11, 2001 terrorist attacks on the U.S. at a memorial site during a ceremony marking the 12th anniversary of 9/11 outside Jerusalem, Wednesday, Sept. 11, 2013. (AP Photo/Bernat Armangue)
Remembering Sept. 11

Relatives and friends of some of those who perished in the 9/11 terrorist attacks placed roses in name etchings on a wall at the Sept. 11 Memorial, during the 12th anniversary observance of the attacks, Wednesday, Sept. 11, 2013 in New York. (AP Photo/David Handschuh, Pool)
Remembering Sept. 11

President Barack Obama greets Zoey Komongnan, right, and her grandmother Mary Komongnan after speaking at the Pentagon 9/11 Memorial, Wednesday, Sept. 11, 2013, at the Pentagon during a ceremony to mark the 12th anniversary of the 9/11 attacks. (AP Photo/Pablo Martinez Monsivais)
Remembering Sept. 11

President Barack Obama is silhouetted as he speaks on stage at the Pentagon Memorial, Wednesday, Sept. 11, 2013, in Washington, to mark the 12th anniversary of the 9/11 attacks. (AP Photo/Pablo Martinez Monsivais)
Remembering Sept. 11

A Navy honor guard rings bells as the names of the 40 passengers and crew of Flight 93 are read during a memorial service at the Flight 93 National Memorial on Wednesday, September 11, 2013 in Shanksville, Pa. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

A visitors to the Flight 93 National Memorial listens to remarks by Secretary of the Interior Sally Jewell during a memorial service on Wednesday, September 11, 2013 in Shanksville, Pa. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

Navy Quartermaster Matthew Konchan of Johnstown, Pa., stands in a field of Black-eyed Susan as he waits to participate in a wreath laying with Secretary of the Interior Sally Jewell during a memorial service at the Flight 93 National Memorial on Wednesday, September 11, 2013 in Shanksville, Pa. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

Forty candles stand before the wall containing the 40 names of the crew and passengers of Flight 93 during a candlelight remembrance at the Flight 93 National Memorial on Tuesday, Sept. 10, 2013. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

The family and friends of the passengers and crew of Flight 93 gather around a bolder that marks the plane's impact area during a memorial service at the Flight 93 National Memorial on Wednesday, September 11, 2013 in Shanksville, Pa. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

President Barack Obama, first lady Michelle Obama, Vice President Joe Biden and Dr. Jill Biden observe a moment of silence with White House staff to mark the 12th anniversary of the 9/11 attacks, Wednesday, September 11, 2013 at the South Lawn of the White House in Washington, D.C. (Olivier Douliery/Abaca Press/MCT)
Remembering Sept. 11

A group of about 60 men organized by the F3 fitness fellowship gather to say a prayer for the victims of the 9/11 attacks after their run in downtown Raleigh, North Carolina, Wednesday, September 11, 2013 to commemorate the 12th anniversary of the runs rescue workers made at the World Trade Centers in New York City following the terrorist attacks on Sept. 11, 2001. (Chris Seward/Raleigh News & Observer/MCT)
Remembering Sept. 11

Marine veteran Andrew Lahey waits at the flagpole on the TCU campus where he played Taps, Wednesday, September 11, 2013, to mark the 12th anniversary of the 9/11 attacks. (Max Faulkner/Fort Worth Star-Telegram/MCT)
Remembering Sept. 11

President Barack Obama participates in a wreath laying ceremony at the Pentagon in remembrance of the 12th anniversary of the 9/11 terrorist attacks, in Arlington, Virginia, Wednesday, September 11, 2013. (Pool photo by Kevin Dietsch/UPI/Pool/Abaca Press/MCT)
Remembering Sept. 11

President Barack Obama, Defense Secretary Chuck Hagel, and Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey listen to the National Anthem during a remembrance at the 12th anniversary commemoration of the 9/11 terrorist attacks at the Pentagon Memorial in Arlington Virginia, Wednesday, September 11, 2013. (Pool photo by Pat Benic/UPI/Abaca Press/MCT)
Remembering Sept. 11

President Barack Obama stands during a remembrance ceremony for the 12th anniversary of the 9/11 terrorist attacks, at the Pentagon in Arlington, Virginia, Wednesday, September 11, 2013. (Pool photo by Kevin Dietsch/UPI/Abaca Press/MCT)
Remembering Sept. 11

Audience members participate in a moment of silence at a remembrance ceremony for the 12th anniversary of the 9/11 terrorist attacks, at the Pentagon in Arlington, Virginia, Wednesday, September 11, 2013. (Pool photo by Kevin Dietsch/UPI/Abaca Press/MCT)
Remembering Sept. 11

A worker waits for passing walkers during the 21-mile "March to the Arch" memorial walk on Wednesday, Sept. 11, 2013, in Chesterfield, Mo. Wednesday marked the 12th anniversary of the 9/11 terrorist attacks.. (AP Photo/St. Louis Post-Dispatch, Erik M. Lunsford)
Remembering Sept. 11

Visitors gather at the Wall of Names after a memorial service at the Flight 93 National Memorial on Wednesday, Sept. 11, 2013, in Shanksville, Pa. The Wall of Names contains the names of the 40 passengers and crew of Flight 93. Wednesday marked the 12th anniversary of the 9/11 terrorist attacks. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

Secretary of the Interior Sally Jewell, left, and Gordon Felt, center, brother of Edward P. Felt, a passenger on Flight 93, place a wreath with the help of Navy honor guard Matthew Konchan, of Johnstown, Pa., in front of the wall containing the names of the 40 crew and passengers on Flight 93 at the Flight 93 National Memorial on Wednesday, Sept. 11, 2013 in Shanksville, Pa.. The boulder, top in the distance, marks the area of the plane's impact. Wednesday marked the 12th anniversary of the 9/11 terrorist attacks. (AP Photo/Gene J. Puskar)
Remembering Sept. 11

In this photo provided by the College of William & Mary, members of The Queen's Guard at the College of William & Mary in Williamsburg, Va. lay a memorial wreath at the head of the college's Sunken Garden on Wednesday, Sept. 11, 2013, to honor the victims of the 9/11 terrorist attacks. Wednesday marked the 12th anniversary of the 2001 terrorist attacks. (AP Photo/College of William & Mary, Stephen Salpukas)
Remembering Sept. 11

Members of the Philadelphia Police & Fire Pipes & Drums prepare to march in a ceremony at the Betsy Ross House marking the 12th anniversary of the Sept. 11 terrorist attacks, Wednesday, Sept. 11, 2013, in Philadelphia. (AP Photo/Matt Rourke)
Remembering Sept. 11

Color guards march Wednesday, Sept. 11, 2013, during a ceremony marking the 12th anniversary of the Sept. 11 terrorist attacks at the Betsy Ross House in Philadelphia. (AP Photo/Matt Rourke)
Remembering Sept. 11

A pair of people embrace as friends and relatives of the victims of the 9/11 terrorist attacks gather at the National September 11 Memorial at the World Trade Center site, Wednesday, Sept. 11, 2013, for a ceremony marking the 12th anniversary of the attacks in New York. (AP Photo/Jason DeCrow)
Remembering Sept. 11

A visitor walks through the "Empty Sky" memorial to New Jersey's victims of the Sept. 11, 2001 terrorist attacks on Wednesday, Sept. 11, 2013, in Jersey City, N.J. One World Trade Center is visible across the Hudson River. Ceremonies will be held Wednesday to mark the 12th anniversary of the attacks. (AP Photo/Mel Evans)
Remembering Sept. 11

The names of victims are read aloud as friends and relatives of the victims of the 9/11 terrorist attacks gather at the National September 11 Memorial at the World Trade Center site in New York, Wednesday, Sept. 11, 2013, for a ceremony marking the 12th anniversary of the attacks. (AP Photo/Jason DeCrow)
Remembering Sept. 11

Relatives and friends of some of those who perished in the 9/11 terrorist attacks placed American flags in name etchings on a wall at the Sept. 11 Memorial, during the 12th anniversary observance of the attacks, Wednesday, Sept. 11, 2013 in New York. (AP Photo/David Handschuh, Pool)
Remembering Sept. 11

A pair or women embrace during the 12 anniversary commemoration of the terroristís attacks on the World Trade Center, Wednesday, Sept. 11, 2013 in New York. (AP Photo/John Angelillo, Pool)
Remembering Sept. 11

Members of Congress sing, "The National Anthem," on the East Front steps of the U.S. Capitol during the 12th anniversary ceremony of 9/11 on Capitol Hill in Washington, Wednesday, Sept. 11, 2013. (AP Photo/Susan Walsh)
Remembering Sept. 11

Members of Congress stand for the national anthem during a ceremony to remember the terror attacks of September 11, 2001, on the steps of the Capitol in Washington, Wednesday, Sept. 11, 2013. From left to right are House Minority Whip Steny Hoyer, D-Md., House Minority Leader Nancy Pelosi, D-Calif., Speaker of the House John Boehner, R-Ohio, Senate Majority Leader Harry Reid, D-Nev., and Senate Minority Leader Mitch McConnell, R-Ky. (AP Photo/J. Scott Applewhite)
Remembering Sept. 11

The Boston Logan International Airport 9/11 Memorial is illuminated Tuesday, Sept. 10, 2013, in Boston. The two passenger jets that crashed into the World Trade Center in New York on Sept. 11, 2001 flew out of Logan International Airport. (AP Photo/Steven Senne)
Remembering Sept. 11

New York Mayor Michael Bloomberg, left, and Democratic mayoral hopeful Bill de Blasio attend a 9/11 Memorial ceremony Wednesday, Sept. 11, 2013, marking the 12th anniversary of the 2001 terrorist attacks on the World Trade Center in New York. (AP Photo/Adrees Latif, Pool)
Remembering Sept. 11

Civil War re-enactor Cpl. Robert Fuller Houston with the 3rd Regiment Infantry, lowers his head during a prayer at a ceremony Wednesday, Sept. 11, 2013, marking the 12th anniversary of the 9/11 terrorist attacks at the Betsy Ross House in Philadelphia. (AP Photo/Matt Rourke)
Remembering Sept. 11

Carrie Bergonia of Pennsylvania looks over the name of her fiancÈ, firefighter Joseph Ogren, at the 9/11 Memorial during ceremonies marking the 12th anniversary of the 9/11 attacks on the World Trade Center in New York, Wednesday, Sept 11, 2013. (AP Photo/Chris Pedota, Pool)
Remembering Sept. 11

A woman wipes her eyes after reading the name of her brother, Bobby Hughes, as friends and relatives of the victims of the 9/11 terrorist attacks gather at the National September 11 Memorial at the World Trade Center site, Wednesday, Sept. 11, 2013, for a ceremony marking the 12th anniversary of the attacks in New York. (AP Photo/Jason DeCrow)
Remembering Sept. 11

Detroit Fire Department Lt. Gerod Funderburg rings a bell during a ceremony in Detroit, Wednesday, Sept. 11, 2013, marking the 12th anniversary of the 9/11 terrorist attacks. (AP Photo/Paul Sancya)
Remembering Sept. 11

Hattiesburg firefighters stand aside a memorial during the 9/11 Observance of Patriots' Day ceremony in Hattiesburg Miss., Sept. 11, 2013. Americans marked the 12th anniversary of the Sept. 11 terrorist attacks on Wednesday with the reading of the names and moments of silence that have become tradition. (AP Photo/Hattiesburg American, Ryan Moore)
Remembering Sept. 11

Hattiesburg firefighters stand aside a memorial during the 9/11 Observance of Patriots' Day ceremony in Hattiesburg Miss., Sept. 11, 2013. Americans marked the 12th anniversary of the Sept. 11 terrorist attacks on Wednesday with the reading of the names and moments of silence that have become tradition. (AP Photo/Hattiesburg American, Ryan Moore)
Remembering Sept. 11

Jeanne Tallman and her granddaughter Whitney Weeks, 3, greet O'Fallon police officer Mike Plum after a ceremony honoring first responders on Wednesday, Sept. 11, 2013, in O'Fallon, Mo. Wednesday marked the 12th anniversary of the 9/11 terrorist attacks. (AP Photo/St. Louis Post-Dispatch, David Carson)
Remembering Sept. 11

Crystal Eubanks, a JROTC student at Beaumont High School, stands up flags outside the school on Wednesday, Sept. 11, 2013, in St. Louis. On Tuesday night, ROTC students put up about 3,000 flags as tribute to the people who lost their lives in the attacks of Sept. 11, 2001. Wednesday marked the 12th anniversary of the 9/11 terrorist attacks. (AP Photo/St. Louis Post-Dispatch, David Carson)