APPLETON (WLUK) — Appleton will appeal a ruling denying its motion to have a wrongful death lawsuit filed by the estate of a man killed by a police officer dismissed, its attorney said Wednesday.
Officers Bryce Rudebeck and Tony Shuman shot at Daniel Pesavento in his N. Birchwood Avenue driveway Aug. 12, 2022. Pesavento, 29, was taken to the hospital, where he died.
Appleton police officers Bryce Rudebeck, left, and Tony Shuman. (Photos courtesy Wisconsin DCI)
After an investigation, both officers were cleared and no charges were filed against them. Although Shuman was investigated for his role in the incident, the federal lawsuit notes he fired one shot and missed.
Pesavento’s family filed the lawsuit, claiming, “Rudebeck’s use of deadly force was unnecessary, unreasonable and excessive.” In addition, it states, “At the time he was killed, Daniel did not pose an imminent threat of death or bodily harm to Rudebeck or anyone else when Rudebeck opened fire on him with his military-grade rifle from 100 feet away and behind a police car.”
The city has denied any wrongdoing. The city asked for the case to be dismissed, but that motion was denied last week by federal Judge Byron Conway on several grounds.
During a scheduling conference Wednesday, attorney Kiley Zellner said the city plans to appeal the portion of Conway’s ruling pertaining to qualified immunity for the officers.
Extended video showing three perspectives of the Aug. 12, 2022, shooting of Daniel Pesavento by Appleton police. (Video courtesy Wisconsin Dept. of Justice)
Plaintiff attorney Ben Elson said his side would ask the appeals court to have the appeal deemed frivolous.
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Conway set a status conference for May 1, but did not set a trial date.
