Editor’s note: This story contains some content that readers may find disturbing.
The family of a man who was fatally shot in 2022 has filed a federal lawsuit against the Appleton police officer who shot him and the Appleton Police Department, claiming he was wrongfully killed.
Daniel 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.
However, the lawsuit states that at the time of the incident, Pesavento was experiencing a mental health crisis that officers were aware of.
The lawsuit was filed May 24. It names Pesavento’s widow and their young daughter as plaintiffs.
The lawsuit says only Rudebeck’s shots struck Pesavento, and that Shuman fired once and missed as Pesavento was already falling to the ground. DCI records show a third officer attempted to shoot his rifle, but it jammed.
According to the lawsuit, Pesavento was a military veteran with untreated post-traumatic stress disorder who would at times use alcohol to cope with his mental health.
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 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.
The officers fired their guns at 8:06 p.m., records say. Pesavento was transported to a hospital, where he died of his injuries.
The lawsuit complaint claims that in the nine seconds before officers fired their weapons, Pesavento never moved the gun from pointing at his head or made any threatening stance or verbal threat to officers.
“At no point during the incident did Daniel take any action that would justify the use of deadly force,” the lawsuit says.
The lawsuit also alleges officers “allowed Daniel to lie on the ground bleeding to death for an inordinate amount of time.”
RELATED: Appleton police officers won’t be charged in Aug. 12 shooting death of Appleton man
The district attorney’s review said officers reported they were concerned Pesavento’s moving caused “a dangerous crossfire concern” for police and stopped the team with nonlethal weapons from getting to him. One officer said he switched the safety on his gun on and off multiple times during the standoff “because of Pesavento’s behavior and his concern for his own safety and the welfare of other people in proximity to the scene.”
Officers reported feeling Pesavento was “becoming more agitated” and aggressive as the standoff continued, and repeatedly asked officers to shoot him, while refusing to comply with officers’ demands, according to the district attorney’s review.
While DCI records indicate Rudebeck reported Pesavento “took a shooting stance” angled toward officers, the lawsuit denies this ever happened.
The lawsuit states Pesavento suffered “terror, bodily injury, pain, suffering, and death” and is requesting an undetermined amount in damages.
There are no upcoming hearings for the lawsuit yet scheduled, according to online court records.
Contact Kelli Arseneau at 920-213-3721 or karseneau@gannett.com. Follow her on X, formerly Twitter, at @ArseneauKelli.
This article originally appeared on Appleton Post-Crescent: Family of man killed by Appleton police in 2022 files federal lawsuit
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