Federal lawsuit filed by estate of man shot and killed at Brown County Jail

Published: Jan. 25, 2019 at 7:25 AM CST
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The estate of a man who was shot and killed in the sally port of the Brown County jail has filed a federal lawsuit, claiming violations of Jonathon Tubby's constitutional rights.

A complaint obtained by Action 2 News was filed Jan. 24 by the Estate of Jonathon C. Tubby. The complaint states Tubby was shot multiple times--including a close range shot to the head.

The defendants are listed as Erik O'Brien (the officer who shot Tubby); Colton Wernecke (police officer); Andrew Smith (Green Bay Police Chief); John R. Gossage (former Brown County Sheriff); Heidi Michel (Jail Administrator); City of Green Bay; Brown County; John Does 1-10.

The complaint states that Jonathon Tubby was handcuffed when he was shot multiple times while unarmed in the Brown County Jail. It also states that the officers who witnessed the shooting failed to intervene.

"The shooting of an unarmed and restrained man by a police officer at the jail is an egregious violation of the U.S. Constitution," reads the complaint. The estate claims Tubby's rights under the Fourth, Eighth and Fourteenth Amendments were violated.

The shooting happened at about 9:11 p.m. on Friday, Oct. 19. Police say Jonathon Tubby, 26, had been arrested earlier in the evening on a felony warrant from the Brown County Sheriff's Office. He was stopped for a traffic violation in the 300 block of Main St. at about 7:24 p.m.

Officers O'Brien and Wernecke handcuffed Tubby and put him in the back of a squad.

"Officers O'Brien and/or Wernecke conducted a search incident to the arrest and handcuffing of Mr. Tubby and determined that he was unarmed," reads the complaint.

A number of officers and deputies were at the jail when O'Brien and Wernecke arrived with Tubby. The suit names them for failing to intervene.

"While Mr. Tubby was unarmed, handcuffed, and in custody of Officers O'Brien and Wernecke in the 'sally port," Officer O'Brien fired multiple shots at Mr. Tubby, killing him. These shots by Officer O'Brien struck Mr. Tubby, including at least one shot to the head at close range," reads the complaint.

Officers attempted life-saving measures and called paramedics. Tubby was pronounced dead at the scene.

"The conduct of Officer O'Brien thus violated clearly established rights of Mr. Tubby of which reasonable officers knew or should have known," the complaint reads.

No officers were hurt. "Due to the very long confrontation with Mr. Tubby in the sally port of the jail, many additional Green Bay area law enforcement responded and were on scene when the incident occurred," says the Wisconsin Department of Justice.

Officers O'Brien and Colton Wernecke are on administrative leave during the ongoing investigation. The Wisconsin Department of Justice handed over its findings to the Brown County District Attorney's Office. The DA will consider whether to file charges.

The suit names former Sheriff Gossage, Police Chief Smith, Administrator Michel, the city and the county for failing to adequately supervise the officers. The complaint cites the lack of video and audio recording equipment in the sally port.

"As a result, officers in the 'sally port' know that incidents of excessive force will be unrecorded and likely to be unreported and/or undisciplined due to lack of evidence.This failure to install recording equipment or preserve recordings constitutes inadequate supervision of the “sally port” area of the Brown County Jail by Smith, Gossage, Michel,Green Bay, and Brown County," reads the complaint.

The Brown County Sheriff's Office tells Action 2 News the video system in the sally port does not record video. The system was installed when the jail was built in 2001, and it offers a "live view" only to track movement of people who are coming and going.

An upgrade of the video systems overseen by the Sheriff's Office--including the jail, court house and Huber work release center-- was approved as part of the 2017 county budget. The upgrades were staggered, with the Huber center and court house systems completed first. The jail's video system upgrade is scheduled to be completed in 2019. That schedule was made prior to the shooting at the jail, sheriff's officials tell Action 2 News.

The lawsuit asks for the following:

A. Actual monetary damages in an amount determined by a jury for each of plaintiff’s causes of action. B. The award of punitive damages in an amount to be determined by a jury. C. The award of reasonable attorneys’ fees, costs, and disbursements of this action. D. Injunctive relief requiring the City of Green Bay and Brown County to adopt policies regarding the use of force to prohibit the use of lethal force against anyone who is in custody and restrained. E. Injunctive relief requiring the City of Green Bay and Brown County to conduct training for all law enforcement officers and correctional staff on the appropriate use of force. F. Injunctive relief requiring Brown County to install, operate, and maintain appropriation audio visual recording equipment to capture and preserve a record of any events occurring on jail property. G. Such other and further relief as this Court deems just and proper.

The defendants have 21 days to respond.