A federal appeals court has found that Waukesha police used excessive force when they shot a suspected drunken driver four times with rubber bullets in 2005.

One of the shots caused a six-inch gash in the driver's ankle that required 30 stitches.

The 7th U.S. Circuit Court of Appeals ruled in a 2-1 decision that a trial judge should have granted Tamara Phillips' motion for judgment as a matter of law, despite a jury's verdict in favor of the police. The case now heads back to federal district court in Milwaukee for a hearing on the extent of Phillips' damages and attorney fees.

"In an excessive force case, while we accept the factual inferences made by the jury, we must independently review the jury's interpretation of what is reasonable under the Fourth Amendment," wrote Judge Ann Claire Williams, joined by Judge Diane Wood.

In dissent, Judge John Daniel Tinder wrote that he believed a jury could have found the force was reasonable.

Phillips' attorney, Mark P. Murphy, said the incident was a turning point in his client's life.

"She's very grateful to the judges," he said. "The easy, political thing to do would have been to say, 'The jury has spoken.' "

He said Phillips, 42, a personal trainer, has recovered from her injuries. He said the damages will probably fall somewhere between $10,000 and $1 million.

Charles Bohl, one of the attorneys for the officers and the city's insurer, said the decision was under review and that the city had no comment.

According to the opinion:

Waukesha police got a tip about 7 p.m. on Nov. 11, 2005, that a black Nissan sedan was driving erratically. By the time they found it, the car was stopped on a sidewalk, backed into a hedge, with the driver's door open and the lights on. Police later said they considered the situation a high-risk traffic stop, because of some confusion over whether the car might be stolen. Seven squad cars responded.

Phillips was inside the car, leaning across the front seats and not responding to demands that she step out and away from the vehicle. At some point, though, she rolled to her stomach and stuck her legs out the driver's door.

Officer James Hoffman fired a warning shot at the open door from the department's new SL6 baton launcher, a gun that fires a rubber projectile the size of a small juice can with the force of .44 magnum revolver. It left a baseball size dent in the door.

He later moved to the side and fired at Phillips' legs from about 40 feet away. She screamed out and grabbed her leg but did not leave the car or crawl back in and close the door. Hoffman fired three more shots that hit Phillips. After the fourth strike, she slumped out onto her knees, then stood up and moved away from the car.

The court found that the force was unreasonable under the circumstances, which included the fact that Phillips was very drunk, did not actively resist and was not in position to drive the car when she was shot in the legs.

The court also found that the use of an SL6 baton launcher was at the "high end" of the less-lethal force spectrum and amounted to a "significant intrusion" on Phillips' Fourth Amendment rights, which guard against unreasonable searches and seizures.

Car-theft confusion

Police said they believed Phillips was driving a stolen car, because when the plate number was first run, it came back as being on a car reported stolen. But another officer had clarified that it was Phillips who reported her silver Honda stolen, and then had the same plate number assigned to her new car, the black Nissan.

"After the officers made the initial determination that they were dealing with a car theft, they appear to have had difficulty acknowledging subsequent information challenging their assumption.

"The officers had her vehicle surrounded with seven squad cars, and behind the vehicle there was a steep drop-off. There was nowhere for Phillips to go," the court wrote.

Then- Lt. Russell Jack, who is now the chief of police in Waukesha, who was supervising the scene, "told the dispatch that the driver was 'secured, not in handcuffs, but stabilized in the car.' The scene was 'secured' at least 15 minutes before officers shot Phillips," the court wrote.

"During that time, Phillips had given no indication that she intended to harm the officers or anyone else," the court wrote.

Phillips was convicted of operating while intoxicated, third offense, and disorderly conduct for the November 2005 incident.