Appellate court upholds dismissal of wrongful death lawsuit against Neenah police

Duke Behnke | Appleton Post-Crescent

Show Caption Hide Caption Neenah police shoot hostage Michael Funk Video shows hostage Michael L. Funk running out of the building, falling and getting up. He then turns to run and is shot by police officers multiple times.

NEENAH - A federal appellate court on Tuesday upheld the dismissal of a wrongful death lawsuit filed against two Neenah police officers who shot and killed hostage Michael L. Funk during a 2015 armed standoff.

"It's over, and the officers won with qualified immunity," said attorney Gregg Gunta, who defended the officers and the city of Neenah.

Qualified immunity shields government officials from liability so long as their conduct doesn't violate clearly established statutory or constitutional rights.

City Attorney Jim Godlewski said government leaders were "relieved to have this finally behind us."

"It certainly was a tragic situation, but we're hopeful this will bring closure to it," Godlewski told USA TODAY NETWORK-Wisconsin.

The lawsuit was filed by Funk's widow, Theresa Mason-Funk, and sought unspecified compensatory and punitive damages. It alleged that police officers Craig Hoffer and Robert Ross used "unnecessary, unreasonable and excessive" force against Funk.

Hoffer and Ross shot Funk after he escaped out the back of Eagle Nation Cycles, where he and two others were being held hostage by gunman Brian T. Flatoff in a dispute over a motorcycle.

Police video of the shooting shows Funk tumbled out the building while Flatoff shot at him from inside. Funk rose to his feet, drew his handgun, looked back toward the building and then turned to run and was shot without warning by Hoffer and Ross.

RELATED: Mason-Funk takes case to appellate court

RELATED: Judge dismisses wrongful death lawsuit against Neenah police

FULL COVERAGE: Eagle Nation Cycles shooting

Minutes earlier, Hoffer, Ross and three other officers had tried to storm the building to rescue the hostages but were driven back by gunfire from Flatoff.

U.S. District Court Judge William Griesbach dismissed the lawsuit in November, concluding that Hoffer and Ross reasonably inferred that Funk was an imminent and deadly threat when they saw him with a handgun.

Mason-Funk asked the U.S. Court of Appeals for the 7th Circuit in Chicago to overturn Griesbach's decision.

After hearing oral arguments, the appellate court sided with Griesbach.

READ: Decision by appellate court

"Simply put, the facts in this case and existing precedent failed to put officers Hoffer and Ross on notice that their use of deadly force, without a warning, on an armed individual in a dangerous hostage situation, was unlawful," the court said. "The officers did not violate a clearly established right, and they are entitled to qualified immunity."

Howard Schoenfeld, an attorney for Mason-Funk, said commenting on the court's decision "would be counterproductive." Instead, he issued a statement on the current climate of the courts in civil rights cases.

"We live in a world where law and politics all too often clash," Schoenfeld said. "When politics trumps law, the end result is injustice."

The criminal case against Flatoff, 48, concluded in March in Winnebago County Circuit Court. He was convicted of 14 felonies, including two counts of attempted first-degree intentional homicide, and was sentenced to 100 years in prison.