The city of Appleton asked a federal judge to dismiss the wrongful death lawsuit filed by the family of Daniel Pesavento, who was fatally shot by an Appleton police officer in 2022.
Pesavento, 33, died Aug. 12, 2022, when he was shot after officers responded to a call for a domestic disturbance at a residence in the 1500 block of North Birchwood Avenue of Appleton.
The Wisconsin Department of Justice Division of Criminal Investigation reported Pesavento was shot at by two Appleton police officers: Bryce Rudebeck and Tony Shuman. Outagamie County District Attorney Melinda Tempelis announced in September 2022 that neither would face charges for the fatal shooting.
Rudebeck and Shuman reasonably believed officers and nearby civilians were in danger when Pesavento walked from the opened-door garage of the residence to the end of the driveway, within 40 yards of them and repeatedly moved his handgun in the direction of officers, according to Tempelis’ decision, which she reached after reviewing reports and evidence from the DCI’s investigation.
The wrongful death lawsuit was filed May 24 in the U.S. District Court for the Eastern District of Wisconsin and names Pesavento’s widow and their young daughter as plaintiffs.
The lawsuit claims that during the standoff, Pesavento only ever held the handgun to his head or pointed at the ground. It also alleges that officers were preparing nonlethal weapons to stop Pesavento when Rudebeck shot Pesavento, striking him four times on the back side of his body.
Rudebeck and the city of Appleton filed a motion for summary judgement Dec. 15, arguing the shooting was “constitutionally reasonable” and asking for the case to be dismissed.
What happened on Aug. 12, 2022?
On the evening of Aug. 12, 2022, Pesavento had been drinking and got into an argument with his wife, records say. At some point during the fight, he hit her.
After Pesavento’s wife said she wanted a divorce, he became suicidal and grabbed a gun and went to the garage, the lawsuit says.
Pesavento’s wife texted a family member, who contacted police for a wellness check. Then, after she heard a gunshot from the garage, Pesavento’s wife called 911, according to records.
Around 7:30 p.m., while on the phone with dispatch, she and her child left the house and walked toward Appleton police officers who had just arrived.
When police were outside the house, Pesavento opened the garage door where he was sitting on a chair and threatening suicide. While officers attempted to negotiate with him, Pesavento paced around the driveway with the gun.
The wrongful death lawsuit claims Pesavento only ever held the handgun to his head or pointed at the ground during the standoff. The city and Rudebeck’s motion claims Pesavento “moved erratically in his driveway while repeatedlydirecting the firearm in multiple directions.”
What does the city’s response say?
In their motion, Appleton and Rudebeck argue that any claims Pesavento’s actions were “limited or benign… rests entirely on hindsight.” In the moment, the motion says, “officers could not know whether the weapon wouldcontinue moving away from them, abruptly return toward them or their fellow officers, or be discharged without warning.”
“At every moment Pesavento moved the firearm, officers were confronted with a fundamental and unavoidable uncertainty: there was no way to predict where the gun would be directed next, whether it would be fired, or who would be in its line of fire,” the motion said.
The motion said the officers’ use of force was objectively reasonable, arguing the analysis of the incident should not be “confined to the split-second when Pesavento turned toward the three officers,” but consider the totality of circumstances from the officers’ perspectives.
“Faced with an armed, intoxicated suspect who had physically injured his wife, already fired his weapon, repeatedly ignored lawful commands, refused to disarm, made threatening movements towards Officer Rudebeck and Officer Jenkins, intermittently directed his firearm toward Officers Rudebeck, Jenkins, and Shuman multiple times, threatened suicide by cop, and posed an immediate and escalating threat to officers, himself, and the surrounding community,” the motion said. “Officer Rudebeck responded with force that was measured, necessary, and proportional to the danger at hand.”
Pesavento’s estate has until Jan. 21 to file a response to the defense’s motion. There are no hearings currently scheduled in the case.
Vivian Barrett is the public safety reporter for the Green Bay Press-Gazette. You can reach her at vmbarrett@usatodayco.com or (920) 431-8314.
Reporter Kelli Arseneau contributed to this report.
This article originally appeared on Appleton Post-Crescent: City of Appleton, officer seek dismissal of wrongful death lawsuit
Reporting by Vivian Barrett, Green Bay Press-Gazette / Appleton Post-Crescent
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