Cuypers, Ian v. Taylor, Justin et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
IAN RICHARD CUYPERS,
Plaintiff,
v.
JUSTIN TAYLOR, TAYLOR GAARD,
MATTHEW BROWN, and CITY OF SUPERIOR,
Defendants.
OPINION and ORDER
24-cv-743-jdp
City of Superior police officers stopped plaintiff Ian Cuypers after he drove the wrong
way down a one-way street. Guns drawn, the officers ordered Cuypers to get out of his vehicle,
to step backward, to face away from them, to keep his hands on his head, and to kneel. When
Cuypers did not immediately obey this last instruction, Officer Taylor Gaard tased him.
Cuypers was subsequently charged with resisting or obstructing an officer. He was acquitted
after a jury trial.
Cuypers asserts claims for excessive force, malicious prosecution, and intentional
infliction of emotional distress against three of the officers who were on the scene during this
incident. Both sides move for summary judgment. Cuypers asks for partial summary judgment
that Gaard used excessive force when she tased him. Dkt. 38. Defendants ask for summary
judgment on all claims. Dkt. 30.
The court will grant Cuypers’s motion and deny defendants’ motion. Video footage and
the undisputed facts show that Cuypers immediately pulled over, got out of the car when
ordered to do so, kept his hands above his head, and substantially complied with defendants’
instructions. Yet from the beginning, defendants treated the situation like a high-risk event,
escalating what should have been a simple traffic stop into a volatile encounter that ended with
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a significant use of force. No reasonable jury could find that the use of a taser was reasonable
here, and if a jury credited Cuypers’s view of the facts, it could find for him on his other claims
as well.
UNDISPUTED FACTS
The court draws the following facts from the officers’ dash and body camera footage
and from the parties’ proposed findings of fact. These facts are undisputed.
On the evening of February 28, 2024, Ian Cuypers was driving in Superior, Wisconsin,
delivering orders for DoorDash. Superior police officer Justin Taylor observed Cuypers turn
and begin driving the wrong way down a one-way street. Taylor activated his lights and Cuypers
pulled over. From inside his police vehicle, Taylor observed Cuypers reaching across to the
passenger’s side of his car and rummaging around. (Cuypers was searching for his insurance
paperwork inside his glove compartment.) Taylor called for backup, saying on his radio, “there’s
a lot of furtive movements, I’ll take a second.”1 Dkt. 32-3 (Taylor dash cam 1:19–1:23). Taylor
got out of his police vehicle but did not approach Cuypers. From his vantage point behind
Cuypers’s vehicle, Taylor observed Cuypers “looking down a lot and looking around.” Dkt. 42
(Taylor Dep. 119:21–120:3).
Less than two minutes later, defendant officers Taylor Gaard and Matthew Brown and
non-defendant officers Jason Moen and Dylan Crist arrived on the scene. Taylor told the other
officers that Cuypers had been “digging around a lot in the passenger’s side, in the center
1 Taylor testified that in the police department, a request for a “second” means a request for
an additional officer to respond to the scene. Dkt. 42 (Taylor Dep. 111:8–21).
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console, and everywhere else.” Dkt. 32-4 (Taylor body cam 2:13– 2:18). Taylor and Gaard
drew their guns and pointed them at Cuypers’s vehicle.
Brown yelled for Cuypers to put his hands where they could see them and Cuypers
stuck his hands out the driver-side window. Taylor told Cuypers to open the door with his left
hand, which Cuypers did. Taylor directed Cuypers to step out of the vehicle with his hands up,
facing away from the officers. Cuypers got out of the vehicle and turned towards the officers
with his hands raised in a questioning gesture. He asked, “what’s happening?” Taylor told him
again to face away, and Cuypers did. Dkt. 32-3 (Taylor dash cam 3:05–3:15). On Taylor’s
instruction, Cuypers placed his hands behind his head and interlaced his fingers. He then
turned his head toward the officers again, yelling something that is not audible on the body or
dash cam footage. He turned back around when the officers told him to do so.
Taylor admonished Cuypers for “not listening” and told him to move slowly backwards.
Cuypers did so, saying, “I feel like I’m being assaulted.” At one point, he removed his hands
from his head and threw a bandana that he was wearing on his head to the ground, but he kept
his hands visible in the air while he did so. Brown told Cuypers, “Don’t do anything other than
keep your hands on top of your head.” Cuypers asked if there were guns on him and said, “I
really do not feel like I am being treated well.” He asked multiple times for an explanation of
what was going on, but the officers didn’t answer him.
What happened next occurred over the course of approximately 15 seconds. Dkt. 32-3
(Taylor dash cam 4:15–4:30). Brown directed Cuypers twice to get down on his left knee, while
Cuypers, with his hands still up, asked the officers what he had done. Gaard said, “do it now
or you’re going to get tased!” Brown told Cuypers a third time to get down on his left knee and
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immediately after, Gaard deployed her taser, striking Cuypers in the back and legs. Cuypers
screamed and collapsed to the ground.
Officers moved in and handcuffed Cuypers. Gaard told Cuypers not to move, or he
would be tased again. Cuypers cried and said, “I’m going to die here, aren’t I? Am I going to
die?” Dkt. 40-8 (Gaard body cam 2:50–2:54). After about a minute, Cuypers told the officers
that he couldn’t feel his legs and allowed officers to lift him into a standing position. The
officers placed Cuypers against a police vehicle so that Gaard could remove the taser prongs
from his body. Gaard told Cuypers that he was in this position because he wasn’t following the
officers’ commands. Dkt. 40-8 (Gaard body cam 5:50–6:00).
The officers arrested Cuypers, and Taylor issued him two citations for violating civil
ordinances: one for driving the wrong way down a one-way street and one for resisting or
obstructing an officer. In July 2024, Cuypers was acquitted of the obstruction charge after a
jury trial.
ANALYSIS
Cuypers’s claims fall into three categories. First, he asserts federal claims under
42 U.S.C. § 1983, contending that each of the officer defendants used excessive force against
him in violation of his Fourth Amendment rights or failed to intervene to prevent the other
officers from using excessive force. Second, he asserts state-law claims for malicious prosecution
and intentional infliction of emotional distress against each of the officer defendants. Third,
he asserts a state-law indemnification claim against the City of Superior.
On a motion for summary judgment, the question is whether there are any genuine
factual disputes that could make a difference to the outcome of the case; or in other words,
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whether a reasonable jury could find for the nonmoving party, after drawing all reasonable
inferences in that party’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 314–15 (7th Cir. 2011); Montgomery
v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). But in “rare circumstances when
video footage clearly contradicts the nonmovant’s claims, [courts] may consider that video
footage without favoring the nonmovant.” Horton v. Pobjecky, 883 F.3d 941, 944 (7th Cir.
2018) (citing Scott v. Harris, 550 U.S. 372, 378–81 (2007)).
A. Federal use of force claims
The basic question for an excessive force claim under the Fourth Amendment is whether
the officer used “greater force than was reasonably necessary.” Snukis v. Taylor, 145 F.4th 734,
741 (7th Cir. 2025). Courts assess the amount of force used from the perspective of a
reasonable officer in light of the totality of the circumstances known to the officer, without
regard to the officer’s actual intent or his subjective beliefs. Williams v. Indiana State Police Dep’t,
797 F.3d 468, 472–73 (7th Cir. 2015). In assessing reasonableness, relevant factors include
the seriousness and immediacy of any threat posed by the plaintiff, the severity of any
suspected crime, and the extent of the plaintiff’s resistance or interference with an officer’s
duties. Dawson v. Brown, 803 F.3d 829, 833 (7th Cir. 2015). When all material facts are
undisputed, “reasonableness is a pure question of law” for the court. Siler v. City of Kenosha,
957 F.3d 751, 759 (7th Cir. 2020).
Qualified immunity shields government officials who make good-faith mistakes in the
performance of their duties. Qualified immunity protects government officials from individual
liability under 42 U.S.C. § 1983 unless the unlawfulness of the official’s conduct was clearly
established at the time of the violation. Bradley v. Vill. Of Univ. Park, Illinois, 59 F.4th 887, 904
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(7th Cir. 2023) (citing District of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018)). For the
unlawfulness of a defendant’s conduct to be clearly established, a reasonable officer in the
defendant’s shoes would need to understand that he was violating the plaintiff’s right. Doxtator
v. O’Brien, 39 F.4th 852, 863 (7th Cir. 2022). The use of excessive force is an area of the law
“in which the result depends very much on the facts of each case,” so police officers are entitled
to qualified immunity unless existing precedent “squarely governs” the specific facts at
issue. Kisela v. Hughes, 584 U.S. 100, 104 (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.” Doxtator, 39 F.4th at 863 (citation and quotation marks omitted).
Cuypers contends that Taylor and Gaard used excessive force when they pointed their
guns at him and that Gaard used excessive force when she tased him. He also contends that
each of the defendants failed to intervene to prevent the others from using excessive force.
Defendants contend that the force used on Cuypers was reasonable under the circumstances
and that, even if it was not, they are entitled to qualified immunity. They also contend that
the failure-to-intervene claims fail because the defendants lacked a reasonable opportunity to
intervene, and that Cuypers’s request for punitive damages fails as a matter of law.
1. 	Gaard’s use of a taser
Both defendants and Cuypers have moved for summary judgment on the issue whether
Gaard used excessive force when she deployed her taser to Cuyper’s back and legs. Deploying
a taser is a significant use of force because it inflicts intense pain and temporary paralysis on
its victim. Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 726 (7th Cir. 2013). In the Seventh
Circuit, an officer’s use of a taser is objectively reasonable, or at least does not violate clearly
established law, if a suspect is actively resisting arrest. Dockery v. Blackburn, 911 F.3d 458, 467
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(7th Cir. 2018). Active resistance can include physically lashing out at officers or “declining to
follow instructions while acting in a belligerent manner.” Id. (citing Forrest v. Prine, 620 F.3d
739, 745–46 (7th Cir. 2010)). Using a taser can also be reasonable if a suspect poses a threat
to the officers or others on the scene. Bell v. Irwin, 321 F.3d 637 (7th Cir. 2003) (suspect was
armed with knives, threatened suicide, and made a move toward a nearby propane tank); Shirley
v. Rabensteine, No. 22-2147, 2023 WL 129432 (7th Cir. Jan. 9, 2023) (suspect hid in an attic
for hours, suddenly fell through the ceiling, and may have been armed). But the law is clearly
established that officers may not use tasers merely to gain compliance from suspects accused
of minor offenses who are not resisting arrest or are only passively resisting. Dockery, 911 F.3d
at 467; see also Abbott, 705 F.3d at 732; Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir.
2010).
In light of these rules, the dispositive question in this case is whether a reasonable officer
in Gaard’s position would have believed that Cuypers was actively resisting or otherwise posed
a threat. The court concludes that a reasonable officer could not have believed those things,
nor could any reasonable jury find otherwise. This is not a close case. Video footage shows that
Cuypers was not actively resisting arrest. He immediately pulled over when Taylor activated
his lights. He followed officers’ instructions to put his hands up and to get out his vehicle, and
he kept his hands above his head at all times from when he exited his vehicle to when Gaard
deployed her taser. He moved his hands slightly and turned his head toward the officers a few
times, but he put his hands back on his head and turned away when officers reminded him to
do so. Cuypers appeared frightened and confused, but he was not belligerent or resistant; on
the contrary, Cuypers substantially complied with the officers’ instructions throughout the
encounter.
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Nor could any reasonable officer have believed that Cuypers posed a threat in the
moment immediately before Gaard deployed her taser. A screenshot of that moment is shown
below from two vantage points: Taylor’s dash cam and Brown’s body cam.
The images show that when Gaard deployed her taser, Cuypers was facing away from the
officers, with his hands hovering near his head. He had not yet obeyed Brown’s instruction to
get down on his left knee, but he was not reaching for a weapon, and his body position gave
no indication that he was planning to imminently flee or attack the officers. He was no longer
standing near his vehicle, and Taylor, Gaard, and Brown all had weapons out and ready, so any
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threat that Cuypers may theoretically have posed when he was in his vehicle was neutralized.
“This was simply not the kind of ‘tense, uncertain, and rapidly evolving’ situation that required
‘split-second’ judgment calls.” See Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2012)
(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). The circumstances don’t support any
significant use of force against Cuypers in this moment.
Defendants argue that a reasonable officer would have perceived Cuypers as a threat
for the following reasons:
• 	He made “furtive movements” in his vehicle.
• 	He “refused multiple, loud, clear commands.”
• 	He “was moving toward officers after failing to keep his hands on his head and
face away from officers.”
• 	He was “exhibiting target glancing behaviors consistent with imminent assault
or flight.”
Dkt. 31, at 10. None of these reasons makes the use of significant force reasonable. Taylor
testified that he believed the “furtive movements” may have been Cuypers reaching for a
weapon or attempting to conceal contraband. Dkt. 42 (Taylor Dep. 99:3–9). But even if
Cuypers had retrieved a weapon, he would have had no reasonable opportunity to use it when
Gaard deployed her taser, because at that point he was standing several feet from the officers,
facing away, with his hands in the air. Defendants’ assertion that Cuypers moved toward the
officers is directly contradicted by the video evidence, which shows that Cuypers moved
backwards toward the officers only when Taylor directly instructed him to do so. See Scott v.
Harris, 550 U.S. 372, 381 (2007) (instructing lower courts not to consider testimony that “is
so utterly discredited by the record that no reasonable jury could have believed [it]”). And as
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for Cuypers’s alleged non-compliance, circuit precedent is clear that officers cannot use
significant force solely to gain compliance, if the non-compliance does not pose a risk to officers
or others at the scene. Phillips, 678 F.3d at 524–25; Cyrus, 624 F.3d at 863. No reasonable
officer could interpret Cuypers’s failure to keep his hands on his head and to stay facing away
from the officers as posing a risk. Cuypers’s hands were visible in the air the entire time; his
feet remained facing away from the officers; and he turned back around each time the officers
reminded him to do so.
That leaves defendants’ argument that Cuypers engaged in “target glancing behaviors
consistent with imminent assault or flight.” Dkt. 31, at 10. In her deposition, Gaard testified
that “target glancing” means that a suspect repeatedly glances in the direction of law
enforcement officers, possibly to gauge their position in anticipation of fleeing or attacking.
Dkt. 36 (Gaard Dep. 76:12–23). But Gaard was unable to identify any characteristic that
distinguishes “target glancing” from simply looking at law enforcement officers, nor did she
identify anything about the specific way that Cuypers was looking at them that suggested he
was planning to flee or attack. See id. (Gaard Dep. 79:22–89:24). Defendants’ “target glancing”
argument amounts to an assertion that officers can use significant force anytime a suspect looks
at them, which is plainly inconsistent with circuit precedent.
Defendants cite Clarett v. Roberts, 657 F.3d 664 (7th Cir. 2011), and United States v.
Norris, 640 F.3d 295 (7th Cir. 2011), but those cases are readily distinguishable. In Clarett, an
offer tased a suspect who was blocking them from entering her son’s bedroom, where the officer
could hear a “commotion” between the son and the officer’s colleagues. 657 F.3d at 675. The
court held that the use of a taser was reasonable because the suspect was preventing the officer
from assisting their colleagues, who the officer reasonably believed needed help. Id. In Norris,
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officers tased a suspect who ignored commands to stop and show his hands. 640 F.3d at 303.
The court held that the officers reasonably believed that the suspect might have been reaching
for a weapon, because his hands were near his waistband and out of view. Id. The common
thread in both Clarett and Norris is that officers reasonably perceived the suspect as a threat to
themselves or others on the scene. Here, Cuypers had his hands up and had substantially
complied with officers’ commands to get out of his vehicle, to turn away from them, and to
back up. No reasonable officer could have perceived him as a threat to anyone’s safety at the
time that he was tased.
The law is clear that it is unreasonable to deploy a taser against a non-violent suspect
who is not actively resisting or otherwise posing a threat. The video evidence leaves no doubt
that Cuypers was not actively resisting and did not pose a threat to the officers or anyone else
on the scene. Gaard’s use of a taser was objectively unreasonable and violated clearly
established law, so the court will grant Cuypers’s motion for partial summary judgment and
deny defendants’ motion on the excessive force claim based on Gaard’s use of a taser.
2. 	Taylor’s and Gaard’s pointing their gun at Cuypers
Defendants move for summary judgment on Cuypers’s excessive force claims based on
Taylor and Gaard’s pointing their guns at him. Pointing a gun at someone is a use of force,
which is evaluated for objective reasonableness like any other kind of force. Baird v. Renbarger,
576 F.3d 340, 344 (7th Cir. 2009); Jacobs v. City of Chicago, 215 F.3d 758, 774 (7th Cir. 2000);
McDonald by McDonald v. Haskins, 966 F.2d 292, 292–93 (7th Cir. 1992). The court of appeals
has held that it is not objectively unreasonable for an officer to point a gun at an individual
who presents a credible threat. Baird, 576 F.3d at 346. But “gun pointing when an individual
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presents no danger is unreasonable and violates the Fourth Amendment.” Id. at 345 (citing
Jacobs and McDonald).
Cuypers contends that under clearly established law, he did not present a credible
threat that would have justified Taylor and Gaard pointing their guns at him. Cuypers relies
on Jacobs and Baird, which he says stand for the proposition that officers may not point guns
at compliant individuals who are suspected of only minor, non-violent offenses. In Jacobs,
officers pointed a gun at the plaintiff for more than ten minutes while they searched his
apartment, even though they knew that he was not the person they were looking for and he
was entirely compliant with officers’ directions. The court held that it was unreasonable for the
officers to point a gun at the plaintiff “when they allegedly had no reason to suspect that he
was a dangerous criminal, or indeed that he had committed any crime at all, [he] was unarmed,
and when [he] had done nothing either to attempt to evade the officers or to interfere with the
execution of their duties.” 215 F.3d at 774. In Baird, an officer detained multiple people at an
auto body shop and a nearby warehouse at gunpoint and held them for nearly two hours while
he investigated the possible alteration of a vehicle identification number. The court held that
the officer violated the detainees’ clearly established rights, because “there was no suggestion
of danger, either from the alleged crime that was being investigated or the people he was
targeting.” 576 F.3d at 346.
Defendants don’t dispute the general rule that it is unreasonable for officers to point
guns at individuals who don’t present a danger. But they say that Taylor and Gaard reasonably
believed that Cuypers did present a danger, because (1) he made “furtive” movements in his
vehicle and (2) he failed to comply with officers’ commands. A reasonable jury could find that
neither of these things presented a threat of any kind. In his deposition, Taylor could not
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identify anything that distinguished the “furtive” movements Cuypers made from the
movements someone would make when attempting to get their insurance paperwork from their
glove box. Dkt. 42 (Taylor Dep. 97:19–101:2). Nor did the description of Cuypers’s
movements that Taylor gave Gaard when she arrived at the scene suggest that he was doing
anything other than looking for his insurance paperwork. Dkt. 32-4 (Taylor body cam
2:13– 2:18) (Taylor explaining to Gaard and the other officers that Cuypers was “digging
around a lot in the passenger’s side, in the center console, and everywhere else”). The court has
already explained that Cuypers’s alleged “non-compliance” amounted to at most minor
deviations from the officers’ instructions. In short, a reasonable jury could find that Taylor and
Gaard pointed their guns at a compliant individual who presented no threat of danger and had
done nothing other than turn the wrong way down a one-way street. That would be objectively
unreasonable and would violate clearly established law under Baird and Jacobs, so Taylor and
Gaard 	are 	not 	entitled 	to 	summary 	judgment 	on 	the 	gun 	pointing 	claims 	on 	either
reasonableness or qualified immunity grounds.
3. 	Failure to intervene
Cuypers also asserts excessive force claims against Gaard, Taylor, and Brown on a
failure-to-intervene theory. Cuypers says that Gaard failed to intervene to prevent Taylor from
pointing his firearm at Cuypers, and that Taylor and Brown failed to intervene to stop Gaard
from using her taser. A defendant may be held liable for failing to stop another officer’s use of
excessive force if the defendant had reason to know that the other officer was violating the
plaintiff’s constitutional rights, and the defendant had a “realistic opportunity” to prevent the
violation. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). “A realistic opportunity means
a chance to warn the officer using excessive force to stop.” Miller v. Gonzalez, 761 F.3d 822,
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826 (7th Cir. 2014) (internal quotation marks omitted). It is generally for the jury to determine
whether the plaintiff has proven the elements for a failure to intervene. Abdullahi v. City of
Madison, 423 F.3d 763, 773–74 (7th Cir. 2005).
The court will allow Cuypers’s failure-to-intervene claims to proceed to trial. This court
has held in multiple other cases that even a few seconds of warning is enough to raise a fact
question about whether another officer could have intervened. See Harris v. City of La Crosse,
745 F. Supp. 3d 733, 754 (W.D. Wis. 2024); Stabenow v. City of Eau Claire, 546 F. Supp. 3d
787, 799 (W.D. Wis. 2021) (collecting cases). The video footage shows that Gaard had ample
opportunity to warn Taylor to put his gun down because he had his gun trained on Cuypers
for more than a minute. Dkt 40-7 (Taylor body cam 2:31–3:53). Gaard was standing behind
Taylor for at least some of this time; the parties don’t explain whether she could see him
pointing his gun and that will be up to the jury to decide. As for the use of the taser, the video
footage shows that approximately two seconds before she deployed her taser, Gaard warned
Cuypers that he would be tased if he didn’t comply. Dkt. 32-3 (Taylor dash cam 4:23–4:28).
The laser sights from Gaard’s taser were also visible on Cuypers’s back for several seconds
before Gaard deployed the taser. Id. A reasonable jury could decide from those facts that Taylor
and Brown had at least a few seconds to tell Gaard not to use the taser.
4. 	Punitive damages
Punitive damages are available in § 1983 cases upon showing of “evil motive or intent,
or . . . reckless or callous indifference to the federally protected rights of others.” Smith v. Wade,
461 U.S. 30, 56 (1983). Defendants contend that Cuypers cannot meet this standard for any
of his § 1983 claims.
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The court concludes that a reasonable jury could find that defendants acted with callous
indifference to Cuypers’s rights. The court has already concluded that a reasonable jury could
disbelieve that Cuypers was acting in a non-compliant or threatening manner; if so, it could
also find that it was reckless or callous indifference for defendants to point their guns at him
and to tase him. The video footage also shows that the defendants shouted at Cuypers for not
following instructions and at one point, Gaard told Cuypers that he was he was in this position
because he wasn’t following their commands. Dkt. 40-8 (Gaard body cam 5:50–6:00). A
reasonable jury could infer that the defendants allowed Cuypers to be tased simply to punish
him for not listening to them.
B. State-law claims
Cuypers asserts state-law claims against each of the defendant officers for malicious
prosecution based on their citing him for resisting or obstructing an officer, and for intentional
infliction of emotional distress based on their behavior during and after the traffic stop. As an
initial matter, defendants contend that they are immune from suit under Wis. Stat.
§ 893.80(4), which confers immunity on government officers and employees for discretionary
acts performed in the scope of their official duties. Sheridan v. City of Janesville, 164 Wis. 2d
420, 425, 474 N.W.2d 799 (Ct. App. 1991). But defendants acknowledge that governmental
immunity does not apply to acts that are “malicious, willful, and intentional.” Est. of Perry v.
Wenzel, 872 F.3d 439, 462 (7th Cir. 2017) (citing Bicknese v. Sutula, 260 Wis. 2d 713, 660
N.W.2d 289, 296 (2003)). Malicious prosecution and intentional infliction of emotional
distress are intentional torts, so malice or intent is one of the elements that Cuypers will have
to prove to prevail on those claims. Turner v. Sanoski, 2010 WI App 92, ¶¶ 12–13; 327 Wis. 2d
503, 787 N.W.2d 429; Rabideau v. City of Racine, 2001 WI 57, ¶¶ 34–36, 243 Wis. 2d 486,
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627 N.W.2d 795. Defendants cite no authority for the view that governmental immunity
applies to shield a government officer or employee from liability for an intentional tort.
1. 	Malicious prosecution
A state-law malicious prosecution claim has six elements:
1. 	Judicial proceedings were started or continued against the plaintiff.
2. 	The proceedings were put in motion by or at the instance of the defendant.
3. 	The proceedings were terminated in the plaintiff’s favor.
4. 	There was malice in instituting the proceedings.
5. 	There was no probable cause for instituting the proceedings.
6. 	The plaintiff suffered damages.
Elmer v. Chicago & N.W. Ry. Co., 257 Wis. 228, 231, 43 N.W.2d 244 (1950). There is no
dispute as to the first, third, and sixth elements. Cuypers was cited for resisting or obstructing
an officer in violation of City of Superior Ordinance § 102-1. A jury acquitted him of that
charge in July 2024. And Cuypers testified that he experienced emotional distress from this
incident, for which he sought medical care. Defendants contend that summary judgment is
warranted because Cuypers cannot establish the other three elements. Defendants say that
they had probable cause that Cuypers had obstructed officers, that Cuypers lacks evidence of
malice, and that for defendants Gaard and Brown, Cuypers lacks evidence that they were
involved in the citation.
Probable cause is the amount of evidence that would lead a reasonable police officer to
believe that the individual probably committed a crime. State v. Weber, 2016 WI 96, ¶ 20, 372
Wis. 2d 202, 887 N.W.2d 554; Heilgeist v. Chasser, 98 Wis. 2d 97, 295 N.W.2d 26 (Ct. App.
1980). Probable cause is a mixed question of fact and law. If the facts are in dispute, then the
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jury determines the facts, and the court determines whether those facts amount to probable
cause. If the facts are undisputed, then probable cause is a pure question of law. Elmer, 257
Wis. at 232.
The ordinance Cuypers was cited under prohibits individuals from “commit[ting] an
act in violation of Wis. Stats. §§ 946.40 and 946.41.” City of Superior Ordinance § 102-1.
Defendants assert that Cuypers violated § 946.41, which makes it unlawful to “knowingly
resist[] or obstruct[] an officer while such officer is doing any act in an official capacity and
with lawful authority.” Wis. Stat. § 946.41(1). Defendants say that Cuypers obstructed them
because he failed to comply with orders to keep his hands on his head, to face away, and to
kneel. Cuypers argues that any non-compliance on his part was too minor to be obstruction,
because it didn’t impede the officers’ ability to perform their duties.
The court agrees with Cuypers. Under Wisconsin law, an individual “obstructs” an
officer if his conduct prevents or makes it more difficult for an officer to perform his duties.
Wis. JI-Criminal 1766. “The action justifying an arrest for obstruction cannot simply
‘inconvenience’ the official; the action must make a difference in an official’s ability to perform
an official act.” Henes v. Morrissey, 533 N.W.2d 802, 808 (Wis. 1995); see also McGowan v. City
of Milwaukee, No. 19-cv-0781-bhl, 2022 WL 3354746, at *9–*10 (E.D. Wis. Aug. 12, 2022)
(arresting plaintiffs for refusing to disperse from a protest scene would be justified only if the
refusal inhibited officers’ ability to maintain order). Henes implies that an officer does not have
probable cause to arrest someone for failing to comply with an order unless the officer
reasonably believes that the non-compliance was impeding his ability to maintain safety or
perform other law enforcement duties.
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Defendants point out that in previous cases, both this court and the Eastern District of
Wisconsin have held that failure to comply with lawful orders provides probable cause for a
§ 946.41 violation. Stabenow, 546 F. Supp. 3d at 800–01; Prip v. Erwin, No. 14-cv-552-wmc,
2015 WL 4394526 (W.D. Wis. July 16, 2015); United States v. Bogan, No. 17-cr-128, 2017
WL 9485688 (E.D. Wis. Sept. 26, 2017).2 But those cases did not explicitly grapple with the
issue presented here; on the contrary, it was at least implicit in each case that the suspect’s
non-compliance had interfered with the officers’ ability to maintain safety or complete law
enforcement duties. See Stabenow, 546 F. Supp. 3d at 800 (suspect ignored commands to keep
his hands out of his pockets after admitting he had a knife); Prip, 2015 WL 4394526, at *5
(suspect may have been attempting to interfere with officers’ arrest of another protester); Bogan,
2017 WL 9485688, at *1 (suspect refused to get out of vehicle after officers noticed he was
holding a handgun). Stabenow, Prip, and Bogan do not support defendants’ position that any
non-compliance, regardless of how harmless, amounts to obstruction under Wis. Stat.
§ 946.41.
That leaves the question whether Cuypers’s non-compliance did in fact impede the
officers from performing their duties. Cuypers has admitted that he moved his hands slightly
when officers had told him to interlace his fingers behind his head, that he occasionally turned
his head toward officers when they had told him to face away, and that he did not immediately
2 Defendants also cite Pullen v. House, 88 F. Supp. 3d 927 (W.D. Wis. 2015) and Harris v. City
of La Crosse, 745 F. Supp. 3d 733 (W.D. Wis. 2024), but those cases aren’t instructive either.
In Pullen, the court concluded that officers may have lacked lawful authority to give commands,
so it did not reach the issue whether the plaintiff’s non-compliance amounted to obstruction.
88 F. Supp. at 939–40. In Harris, the court explicitly declined to decide whether disobeying
orders amounts to obstruction under § 946.41; instead, it resolved the probable cause issue on
qualified immunity grounds. 745 F. Supp. at 751.
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kneel down when officers ordered him to do so. In his response brief, Cuypers argues that these
acts of non-compliance were so minor that they could not possibly have impeded the officers’
ability to conduct a safe traffic stop. Cuypers says that he never did anything to prevent
defendants from placing handcuffs on him, and that the defendants did not need him to
interlace his fingers behind his head or to kneel in order to handcuff him. Dkt. 47, at 35.
Defendants did not contest this point in their reply brief, so they have forfeited any argument
to the contrary. The court concludes that Cuypers’s non-compliance did not impede the officers
from performing their duties, so there was no probable cause to cite him for violating § 946.41.
As for malice, the court concludes that Cuypers has adduced evidence sufficient for a
reasonable jury to find in his favor. For the purpose of a malicious prosecution claim, malice
means that the defendants acted either with “ill will or vindictiveness toward the plaintiff” or
that they acted “for an improper motive or purpose,” meaning for a reason “other than the
social one of bringing an offender to justice.” Meyer v. Ewald, 66 Wis. 2d 168, 174–75, 224
N.W.2d 419 (1974). As evidence of malice, Cuypers points to body cam footage of a
conversation between Brown and Taylor shortly after the incident. Brown told Taylor that it
might be better to charge Cuypers with an ordinance violation compared with a criminal charge,
because “everything was justified there [during the traffic stop],” but “how he [Cuypers]
interprets the world might be a little different than how we do.” Dkt. 40-7 (Taylor body cam
23:45–24:25). Taylor responded that he thought that if force was used, then he had to charge
Cuypers with a crime. Id. (Taylor body cam 24:43–24:50). A reasonable jury could infer from
this conversation that Brown and Taylor did not actually believe that Cuypers’s behavior was
obstruction, but wanted to prosecute him to justify their use of force. As for Gaard, a reasonable
jury could find that her description of Cuypers’s non-compliance in her use of force report does
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not match the video footage. Dkt. 40-10 (describing Cuypers as beginning to “turn his body
toward us” at the moment force was used). That could also support a reasonable inference that
Gaard wanted to prosecute Cuypers for improper reasons.
That leaves the personal involvement element. A person is liable for malicious
prosecution only if the judicial proceedings are initiated “by, or at the instance” of that
individual. Elmer, 257 Wis. at 231. Taylor was undisputedly involved in initiating Cuypers’s
citation, because he was the officer who signed the citation. Defendants argue that Gaard and
Brown weren’t involved, but Cuypers has adduced evidence that Taylor consulted with Gaard
and Brown about what charges to bring against Cuypers and that he took their advice. That’s
enough to create a triable issue on Gaard and Brown’s involvement in initiating the charges.
2. 	Intentional infliction of emotional distress
Cuypers’s intentional infliction of emotional distress claim is based on the same conduct
as his excessive force and malicious prosecution claims, specifically, defendants’ pointing their
guns at him, tasing him, and citing him for obstruction. To establish a claim for intentional
infliction of emotional distress, Cuypers must demonstrate that (1) the conduct was extreme
and outrageous; (2) defendants intended to cause emotional distress; and (3) defendants’
conduct did in fact cause extreme and disabling emotional distress. Wis. JI-Civil 2725; see also
Przybyla v. Przybyla, 87 Wis. 2d 441, 444, 275 N.W.2d 112 (1978).
Defendants don’t engage with the elements of this claim separately from their
arguments about Cuypers’s Fourth Amendment claims. They simply rehash their arguments
that defendants’ behavior was a legitimate law enforcement response, which the court has
already rejected. Defendants’ arguments on this claim are undeveloped, so they are forfeited
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for the purpose of summary judgment. See Irish v. BNSF Ry. Co., 674 F.3d 710, 714–16 (7th
Cir. 2012).
C. Indemnification
Defendants contend that Cuypers’s indemnification claim under Wis. Stat. § 895.46 is
premature because no judgment has yet been entered against the individual defendants. But
this court has held that “it is appropriate and efficient to keep the county as a defendant in the
case for the purpose of ordering complete relief.” Murphy v. Juneau Cnty., No. 22-cv-33-jdp,
2023 WL 3040649, at *7 (W.D. Wis. Apr. 21, 2023) (collecting cases); see also Lewis v.
Columbia Cnty., No. 23-CV-77-jdp, 2024 WL 1833817 (W.D. Wis. Apr. 26, 2024); Hardick v.
Cripe, No. 23-cv-550-jdp, 2025 WL 71853 (W.D. Wis. Jan. 10, 2025) (explaining that the
court will keep the municipality in the case, but not identify it as a defendant at trial). The
court will take the same approach here and deny the motion for summary judgment for the
City of Superior.
ORDER
IT IS ORDERED that:
1. 	Plaintiff’s motion for partial summary judgment, Dkt. 38, is GRANTED as for
plaintiff’s Fourth Amendment excessive force claim against defendant Gaard for
deploying her taser on Cuypers’s lower back and legs.
2. 	Defendants’ motion for summary judgment, Dkt. 30, is DENIED. The case will
proceed to trial on the following claims and issues:
a. 	Defendants Taylor and Brown failed to intervene to prevent Gaard from
deploying her taser.
b. 	Defendants Taylor and Gaard used excessive force against Cuypers in
pointing his firearm at him.
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c. 	Defendant Gaard failed to intervene to prevent Taylor from pointing his
firearm.
d. 	Defendants Gaard, Taylor, and Brown violated Wisconsin law by
initiating a malicious prosecution against him for obstructing officers.
e. 	Defendants Gaard, Taylor, and Brown violated Wisconsin law by
intentionally inflicting emotional distress on Cuypers.
f. 	Compensatory and punitive damages for all claims.
g. 	Indemnification against the City of Superior.
Entered February 9, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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