Lawsuit alleging mistreatment by Neenah police set for trial after mediation fails

Reader question: Did mediation result in a settlement of the lawsuit filed against Neenah police by the hostages at Eagle Nation Cycles?

Answer: It did not because the mediation never happened.

The two sides — the hostages as plaintiffs and Neenah police and the city as defendants — had agreed to mediation, which was scheduled for March 14 before Magistrate Judge James Sickel.

The plaintiffs provided the defendants with their initial settlement demand. Two days later, the defendants sent a letter to Sickel saying "mediation would not be fruitful at this time."

"The parties are too far apart," Neenah City Attorney David Rashid told the Post-Crescent. "They made a settlement demand, and the (Finance) Committee and (Common) Council were not interested, so we're going to proceed with the next step, which would be the filing of a motion for summary judgment" to dismiss the case without a trial.

Rashid declined to disclose the amount of the settlement demand.

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Walter Stern, the plaintiffs' attorney, said he was disappointed with the cancellation of mediation and with the way the defendants' attorney, Kyle Moore, handled the matter.

"Our submission was certainly not chiseled in stone," Stern said in a letter to Sickel, "and we expected to have a fair and reasonable negotiation with Your Honor’s assistance as mediator. We were very taken aback by counsel’s unilateral dismissal of the mediation order."

The end of mediation returns the case to Judge William Griesbach in U.S. District Court in Green Bay. It is scheduled for a three-day jury trial starting Nov. 6.

The lawsuit was filed in 2021 by plaintiffs Ethan Moderson, Ryan Moderson, Mike Petersen, Steve Erato and George Fuerte. They were inside Eagle Nation Cycles on Dec. 5, 2015, when gunman Brian Flatoff took hostages in a dispute over a motorcycle.

Neenah police stormed the building but were driven back by gunfire from Flatoff. Minutes later, hostage Michael Funk escaped from the building and, without warning, was shot and killed by officers Craig Hoffer and Robert Ross.

The plaintiffs claim Neenah police intentionally and unlawfully detained them as they exited the business and treated them as criminals rather than victims.

Stern said within two minutes of shooting Funk, police learned they had shot a hostage and not the hostage-taker, yet they didn't change their approach. The lawsuit says officers pointed guns at the plaintiffs, handcuffed them and placed them in custody for various periods of time, causing "pain, emotional anxiety, depression, PTSD and other physical and emotional trauma."

They are seeking unspecified compensatory and punitive damages.

The Wisconsin Department of Justice determined Hoffer and Ross mistakenly, but reasonably, thought Funk was the armed hostage-taker and an imminent threat when they saw him with a handgun. Neither officer was charged with a crime.

Flatoff was sentenced to 100 years in prison after he was convicted of 14 felonies, including two counts of attempted first-degree intentional homicide.

Post-Crescent reporter Duke Behnke answers your questions about local government. Send questions to dbehnke@gannett.com or call him at 920-993-7176.