UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
WISCONSIN
BARBARA J. BROWN, Plaintiff,
v.
CITY OF MILWAUKEE and MICHAEL GARCIA,
Defendants.
October 21, 2003,
Decided
October 21, 2003, Filed
DECISION AND ORDER
Plaintiff
Barbara J. Brown brings this action under 42 U.S.C. § 1983 against defendants
City of Milwaukee ("the City") and Milwaukee police officer Michael
Garcia ("Garcia"), n1 alleging that defendants violated her Fourth
Amendment rights by subjecting her to an unreasonable seizure. Plaintiff also
brings due process and equal protection claims, as well as claims alleging
violations of state tort and open records laws. Defendants now move for summary
judgment on all of plaintiff's claims, and plaintiff moves for partial summary
judgment on her open records law claim.
I. FACTS
On January
29, 1998 at approximately 7:00 p.m., a Milwaukee police officer broadcast a
general dispatch report stating that a woman driving a two-tone maroon van
north on North 35th Street in the City of Milwaukee possessed a gun. North 35th
Street is a major arterial roadway. The parties dispute whether the woman in
the van committed any offense. One officer testified that "shots [may have
been] fired," (Def.'s Ex. C at 10), and another testified that the woman
may have stolen the van. However, it is unclear from the record what, if
anything, aside from possessing a gun, the woman identified in the dispatch
report actually did.
The parties also dispute exactly
what the dispatch report said. Plaintiff asserts that it indicated only that
the woman was driving a van and had a gun. Defendants claim that the report
indicated that a gun was used. Once again, however, the record contains no
evidence enabling me to resolve this factual dispute.
A few
minutes after the dispatch, defendant Garcia and his partner observed plaintiff
in a maroon and beige van heading north on North 35th Street. Plaintiff, a
fifty-five year old African-American woman, was, at the time, a teacher and
guidance counselor in the Milwaukee Public Schools. Believing that plaintiff
might be the woman identified in the dispatch report, the officers immediately
activated their emergency lights and pulled her [*968]over. The officers also
broadcast the stop on the police radio, and at least five squad cars and ten
officers came to the scene. The officers blocked off the street and surrounded
the van. They then shined lights at plaintiff, apparently to prevent her from
seeing. They also pointed handguns, rifles and shotguns at her, and cocked
their guns so that plaintiff could hear the clicking sounds of guns being
prepared for firing. Several officers simultaneously shouted profanity-laced
commands at her -- some over a public address system -- such as "get your
goddamn hands out and get out of the goddamn car," "get the fuck out of the vehicle," and
"shut your fucking mouth or I'll shoot." (Pl.'s Proposed Findings of
Fact ("PFOF") PP 90-91.) These tactics subjected plaintiff to
"sensory overload." It appears that their purpose was to frighten and
disorient her.
Plaintiff
states that she was terrified and confused. She complied with the officers'
commands by exiting the vehicle and putting her hands on her head. The police
then ordered her to walk backwards toward Garcia while keeping her hands on her
head, which she did. When she reached Garcia, he prepared to handcuff her by
grabbing her wrists and pulling her arms down while pushing at least one of her
hands upward against her back. At this point, the officers received a radio
transmission indicating that they had seized the wrong woman. Garcia released
plaintiff, and the officers explained what had happened. They observed that
plaintiff was trembling and crying and appeared to be traumatized. She appeared
too upset to drive; thus, one of the officers prepared to drive her home.
However, shortly thereafter, a friend arrived and drove plaintiff home.
Later that evening, plaintiff
went to the emergency room of a local hospital where she was treated for
injuries to her arm, neck and shoulder. Plaintiff asserts that when Garcia
pulled her arms, he tore a ligament causing her to suffer permanent shoulder
and neck pain. Plaintiff also asserts that as a result of the entire incident
she suffered from post-traumatic stress disorder for which she received medical
treatment.
Plaintiff requested information about the incident under the
state open records law and alleges that neither the officers involved nor the
City timely or fully complied with her requests. Apparently, no official police
report of the incident was prepared.
Additional facts will be stated in the course of the decision.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is required "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). The mere existence of some factual dispute
does not defeat a summary judgment motion; "the requirement is that there
be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). For a dispute to
be "genuine," the evidence must be such that a "reasonable jury
could return a verdict for the nonmoving party." Id. For the fact to be
"material," it must relate to a disputed matter that "might
affect the outcome of the suit." Id.
Although summary judgment is a useful tool for isolating and
terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S.
317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), courts should act with
caution in granting summary judgment, Anderson, 477 U.S. at 255. [*969] When
the evidence presented shows a dispute over facts that might affect the outcome
of the suit under governing law, summary judgment must be denied. Id. at 248.
The moving party bears the initial burden of demonstrating that
it is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323.
The movant may meet its burden by demonstrating that there is an absence
of evidence to support the non-moving
party's case. Id. at 325. Once the moving party's initial burden is met, the
nonmoving party must go beyond the pleadings and designate specific facts to
support each element of the cause of action, showing a genuine issue for trial.
Id. at 322-23. Neither party may rest on mere allegations or denials in the
pleadings, Anderson, 477 U.S. at 248, or upon conclusory statements in
affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.
1989).
In evaluating a motion for summary judgment, the court must
draw all inferences in a light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89
L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, it is "not required to
draw every conceivable inference from the record -- only those inferences that
are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th
Cir. 1991).
III. SECTION 1983 CLAIMS
In order to succeed on a claim under § 1983, a plaintiff must
show that (1) the defendants deprived her of a federal constitutional right,
and (2) the defendants acted under color of state law. E.g., Reed v. City of
Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996); Estate of Thurman v. City of
Milwaukee, 197 F. Supp. 2d 1141, 1147 (E.D. Wis. 2002). In the present case, it
is undisputed that defendants were acting under color of state law. The only
issue is whether plaintiff was deprived of a right secured by the Constitution.
Plaintiff alleges that defendants violated her rights under the Fourth
Amendment and her rights to due process and equal protection.
A. Fourth Amendment Claim
1. Reasonableness of Seizure
a. Applicable Legal Standards
The Fourth Amendment protects persons against
"unreasonable searches and seizures." U.S. Const. amend. IV.
Plaintiff's Fourth Amendment claim has two components: (1) whether the officers
seized plaintiff without reasonable suspicion that she had committed a crime,
and (2) whether, even if they had reasonable suspicion, the officers used
tactics that were unreasonably intrusive under the circumstances or, put
differently, excessive in relation to the danger she posed.
An
investigatory stop not amounting to an arrest is authorized if the officer is
able to point to "specific and articulable facts" that give rise to a
reasonable suspicion that a crime is about to be or has been committed. Terry
v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); United
States v. Wimbush, 337 F.3d 947, 949 (7th Cir. 2003). "Reasonable
suspicion" must be based on some "objective manifestation" that the
suspect is involved in criminal activity. Wimbush, 337 F.3d at 949 (citing
United States v. Swift, 220 F.3d 502, 506 (7th Cir. 2000)). Although the police
may not detain a suspect based merely on a hunch, the likelihood of criminal
activity need not rise to the level required for probable cause to arrest and
falls well short of meeting the preponderance of the evidence standard. Id.
(citing United States v. Arvizu, 534 U.S. 266, 274, 151 [*970] L. Ed. 2d 740,
122 S. Ct. 744 (2002)). In evaluating the reasonableness of a stop, courts must
examine the totality of the circumstances known to the officer at the time of
the stop. Id. at 950 (citing United
States v. Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002)).
To qualify
as a lawful Terry stop, a detention must be limited in scope and executed
through the least restrictive means. United States v. Ienco, 182 F.3d 517, 523
(7th Cir. 1999); see also Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d
229, 103 S. Ct. 1319 (1983) ("The investigative methods employed should be
the least intrusive means reasonably available to verify or dispel the
officer's suspicion in a short period of time."). Probable cause, not
merely reasonable suspicion, may be required when the police restraint is so
intrusive that, while not technically
an "arrest," it may be "tantamount" to an arrest. n2 United
States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994) (citing Dunaway v. New
York, 442 U.S. 200, 212-16, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979)). Thus, the
reasonableness of the stop may depend, in part, on the extent of the intrusion.
Ienco, 182 F.3d at 523. If the degree of intrusion was not reasonably related
in scope to the circumstances that justified the interference in the first
place, the seizure may be unreasonable under the Fourth Amendment. See Tilmon,
19 F.3d at 1224.
"Subtle, and perhaps tenuous, distinctions exist between a
Terry stop, a Terry stop rapidly evolving into an arrest and a de facto
arrest." Tilmon, 19 F.3d at 1224. Because of the endless variations in the
facts and circumstances, there is no litmus-paper test for determining when a
seizure exceeds the permissible bounds of an investigative stop. Id. at 1224.
Rather, the court must analyze all of the facts and circumstances of the case.
Graham v. Connor, 490 U.S. 386, 388, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989).
When officers use force to effect a seizure, the court must
balance "the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing governmental interests at
stake." Id. at 396 (internal quotation marks omitted). In Graham, the
Court listed three relevant factors: (1) the severity of the suspected crime;
(2) whether the suspect posed an immediate threat to the safety of the officer
or others; and (3) whether the suspect
was actively resisting arrest or attempting to evade arrest by flight. Id.
Ultimately, the court must decide whether the means used to seize the person
were excessive in relation to the danger she posed. Jacobs v. City of Chicago,
215 F.3d 758, 773 (7th Cir. 2000); see also Graham, 490 U.S. at 388 (stating
that officer's conduct must be objectively reasonable under the Fourth
Amendment).
Thus, in
the present case I must determine:
(1) whether the police were aware of specific and articulable facts
giving rise to reasonable suspicion; and (2) whether the degree of intrusion
was reasonably related to the known facts. In other [*971] words, the issue is
whether the police conduct -- given their suspicions and the surrounding
circumstances -- was reasonable.
Tilmon, 19 F.3d at 1224.
b. Application of Standards to Seizure of Plaintiff
Whether
Garcia had reasonable suspicion to stop plaintiff depends on the resolution of
disputed issues of fact. Viewing the evidence in the light most favorable to
plaintiff, a reasonable fact-finder could conclude that Garcia lacked
reasonable suspicion to believe that plaintiff was involved in criminal
activity. The dispatch report stated only that the individual possessed a gun,
which is not necessarily a crime. See Florida v. J.L., 529 U.S. 266, 268, 272,
146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000) (holding that an anonymous tip that a
person is carrying a gun is, without more, insufficient to justify an officer's
stop and frisk of that person, and declining to adopt a "firearm
exception" to the standard Terry analysis); n3 United States v. Ubiles,
224 F.3d 213, 217-18 (3d Cir. 2000) (holding that because it is not necessarily
a crime to possess a gun, a mere allegation that a suspect possesses a gun, without
more, does not justify a stop); United States v. Dudley, 854 F. Supp. 570, 580
(S.D. Ind. 1994) (holding that radio call alerting police to presence of two
people in vehicle with guns did not provide reasonable suspicion because
possession of firearms is not, generally speaking, a crime). Thus, even if
Garcia had reason to believe that plaintiff was the individual described in the
dispatch report, the report may not have conveyed information sufficient to
establish reasonable suspicion that such individual committed or was about to
commit a crime. Therefore, on the state of this record, I cannot conclude as a
matter of law that the stop was reasonable. n4
Neither can
I conclude as a matter of law that the seizure was reasonably effected. n5 In
Tilmon, the Seventh Circuit [*972] addressed whether a "show of
force" employed in the seizure of an alleged bank robber was so intrusive
as to be unreasonable. The officers in Tilmon surrounded the suspect's vehicle,
drew their weapons, ordered the suspect to get out of the car and lie on the
ground, and placed him in handcuffs. 19 F.3d at 1226-28. The court found that
the officers' actions were reasonably related to the circumstances justifying
the stop because the suspect was considered armed and dangerous and had
threatened to blow up the bank with a bomb. Id. at 1227-28. The court reasoned
that drawing weapons and ordering the suspect to lie on the ground were actions
reasonably necessary for officer safety based on the perceived threat. Id.
However, the court indicated that "'clearly'" it was "'near the
outer edge'" of what constituted a reasonable investigative stop. Id. at
1227 (quoting United States v. Serna-Barreto, 842 F.2d 965, 968 (7th Cir.
1988)).
If Tilmon was "near the outer
edge," a reasonable jury could conclude that the officers' conduct in the
present case crossed the line. First, taking the facts in the light most
favorable to plaintiff, the officers had no reason to suspect that plaintiff
had committed an offense comparable in seriousness to that suspected in Tilmon.
In Tilmon, the police reasonably suspected that the defendant had just robbed a
bank by threatening to blow it up with a bomb; in the present case, the
officers had no reason to suspect that plaintiff had done anything more serious
than possess a gun. The difference is significant because the seriousness of
the conduct of which a subject is reasonably suspected is highly relevant when
considering the permissible degree of intrusion in an investigatory stop. See
id. at 1225-28.
Second, the officers' actions in the present case were
considerably more intrusive than in Tilmon. Although in both cases the officers
surrounded the suspect's car with guns drawn, in the present case, by using the
sensory overload tactic, the officers went much further. They not only
attempted to subdue plaintiff and to protect their own safety, but, drawing all
inferences in the light most favorable to plaintiff, they attempted to terrify
and disorient her. They did this by training spotlights on her so that she was
unable to see, by shouting profanities such as "shut your fucking mouth or
I'll shoot," and by making her believe that they were about to fire their
weapons.
Third, in
addition to subjecting plaintiff to sensory overload, in the present case
Garcia caused plaintiff to suffer physical injury. According to plaintiff,
Garcia twisted her arms causing injuries to her shoulder and neck, including a
torn ligament, resulting in permanent pain and suffering. Under the
circumstances of this case, none of the Graham factors would justify the use of
force sufficient to cause plaintiff to sustain a torn ligament and permanent
pain and suffering. Garcia had no reason to suspect that plaintiff had done
anything more serious than possess a weapon. Plaintiff posed little or no
threat to the safety of the officers. At the time Garcia allegedly twisted her
arm she had compiled with all of the officers' instructions and was walking
backward with her hands on her head. She was not resisting in any way. Further,
plaintiff was a woman in her fifties, and her physical capacity to resist was
limited.
Thus,
taking the facts in the light most favorable to plaintiff, a reasonable jury
could conclude that Garcia acted unreasonably in the manner in which he and the
other officers seized plaintiff. n6 I cannot [*973] conclude, as a matter of
law, that the officers' use of the sensory overload tactic and physical
handling of this fifty-five year old woman, suspected only of possessing a gun,
was reasonable.
2. Qualified Immunity
Defendants argue that even if Garcia violated plaintiff's Fourth
Amendment rights, he is entitled to qualified immunity. Under the doctrine of qualified immunity, "government
officials performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d
396, 102 S. Ct. 2727 (1982).
The court applies a two step sequential test for determining
whether qualified immunity applies. The initial inquiry is whether, taking the
facts in the light most favorable to the party asserting the injury, the facts
alleged show that the officer's conduct violated a constitutional right.
Saucier v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001).
If there was no violation, there is no need for further inquiry. Id. at 201. In
the present case I have already determined that, taking the evidence in the
light most favorable to plaintiff, Garcia violated plaintiff's Fourth Amendment
rights.
The second sequential step is to ask whether the right was "clearly
established" at the time of the alleged violation. Id. "The
relevant, dispositive inquiry in
determining whether the right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted." Id. at 202.
It is the plaintiff's burden to demonstrate that a right is
clearly established. Jacobs, 215 F.3d at 766. A right is clearly established
when its contours are "'sufficiently clear that a reasonable official
would understand that what he is doing violates that right.'" Id. at 767
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct.
3034 (1987)). To determine whether a right is clearly established, the court
looks first to Supreme Court caselaw, then circuit precedent. In the absence of
controlling precedent, the court may broaden its "survey to include all
relevant caselaw in order to determine 'whether there was such a clear trend in
the caselaw that we can say with fair assurance that the recognition of the
right by a controlling precedent was merely a question of time.'" Id.
(quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)).
However, it is not necessary that the very action being
challenged has been previously held unconstitutional, so long as the
unlawfulness was apparent in light of existing law. Anderson, 483 U.S. at 640.
As the Supreme Court recently stated:
Officials can still be on notice that their conduct violates established law even in novel factual
circumstances. Indeed, . . . we [have] expressly rejected a requirement that
previous cases be "fundamentally similar." Although earlier cases
involving "fundamentally similar" facts can provide especially strong
support for a conclusion that the law is clearly established, they are not
necessary to such a finding. The same is true of cases with "materially
similar" facts. Accordingly, . . . the salient question . . . is whether
the state of the law [at the [*974] time of the alleged conduct] gave [the defendants]
fair warning that their alleged treatment of [the plaintiff] was
unconstitutional.
Hope v. Pelzer, 536 U.S.
730, 741, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002); see also United States v.
Lanier, 520 U.S. 259, 271, 137 L. Ed. 2d 432, 117 S. Ct. 1219 (1997) (stating
that "a general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in question,"
even though the very action in question has not previously been held unlawful).
Thus, I
must determine whether, in January of 1998, it would have been apparent to a
reasonable police officer: (1) that he could not conduct a Terry stop based on
a report that a woman driving a van on particular street had a gun, and (2)
that he could not employ the highly intrusive tactics used to effectuate the
seizure here. Taking the facts in a light most favorable to plaintiff, I
conclude that while Garcia is entitled to qualified immunity from liability for
the initial stop, he is not entitled to immunity from liability for the manner
in which it was carried out. n7
It has
been well established since 1968 that in order to justify a Terry stop the
activity of which the detainee is suspected must actually be criminal. See
Johnson v. Campbell, 332 F.3d 199, 208 (3d Cir. 2003) (citing Ubiles, 224 F.3d
at 218); Feathers v. Aey, 319 F.3d 843, 850 (6th Cir. 2003). As discussed, the
mere possession of a gun, without more, is not a crime. However, I cannot conclude that the state of
the law in 1998 was so clear that only a "plainly incompetent" n8
officer would have conducted a Terry stop.
In 2000, the Supreme Court
held that "an anonymous tip that a person is carrying a gun is, without
more, insufficient to justify a police officer's stop and frisk." Florida
v. J.L., 529 U.S. 266, 269, 146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000). The
Court rejected any "firearm exception" to the standard Terry
analysis. Id. at 272. However, prior to J.L. several courts -- including the
Seventh Circuit Court of Appeals -- had reached contrary conclusions,
"declaring similar searches compatible with the Fourth Amendment."
Id. at 269 (citing United States v. DeBerry, 76 F.3d 884, 886-887 (7th Cir.
1996); United States v. Clipper, 297 U.S. App. D.C. 372, 973 F.2d 944, 951 (D.C. Cir. 1992)).
In DeBerry, the court noted that
a number of cases hold,
United States v. McClinnhan, 212 U.S. App. D.C. 368, 660 F.2d 500, 502-03 (D.C.
Cir. 1981); United States v. Clipper, 297 U.S. App. D.C. 372, 973 F.2d 944,
949-51 (D.C. Cir. 1992); United States v. Bold, 19 F.3d 99, 103-04 (2d Cir.
1994), or intimate, United States v. Gibson, supra, 64 F.3d 617, 624; United
States v. Walker, supra, that if the tip, though only weakly corroborated in
the sense just explained, is that a person is armed, the police are entitled to
stop the person and search him for the gun. Armed [*975] persons are so
dangerous to the peace of the community that the police should not be forbidden
to follow up a tip that a person is armed, and as a realistic matter this will
require a stop in all cases. For suppose DeBerry had made no threatening
gesture but had simply denied in answer to the officer's question that he had a
gun. Could the officer have left it at that? Or should he have asked for
consent to frisk DeBerry and if DeBerry refused, insisted? The answers
implicitly given by the cases we have cited are "no" and
"yes," respectively. We think these answers strike the proper balance
between the right of the people to be let alone and their right to be protected
from armed predators.
76 F.3d at 886. n9 Thus, at the time Garcia
conducted the Terry stop of plaintiff, his decision had some support in circuit
precedent. Therefore, I find that he has qualified immunity from liability
regarding the initial stop.
However,
Garcia is not immune from liability based on the manner in which plaintiff was
seized. Garcia and the other officers surrounded plaintiff, shined lights at
her to prevent her from seeing, pointed weapons at her, cocked them and
bombarded her with profanity-laced threats to shoot, based only on an anonymous
tip that she had a gun. This conduct, if proven, would constitute a violation
of plaintiff's clearly established rights.
First, at
the time of the seizure, it "was clear that 'an officer's use of deadly
force to apprehend a suspect is unreasonable, absent probable cause that the
suspect is dangerous or has committed a violent crime.'" Jacobs,
215 F.3d at 774 (quoting McDonald v. Haskins, 966 F.2d 292, 294-95 (7th Cir.
1992)). "It was also
established that holding [a] gun to a person's head and threatening to pull the
trigger is a use of deadly force." Id. (citing McDonald, 966 F.2d at 295).
That is essentially what happened here: Garcia and the other officers pointed
their weapons -- including rifles and shotguns -- at plaintiff, cocked them and
threatened to fire unless plaintiff "shut [her] fucking mouth." This,
when they suspected her of nothing more than possessing a weapon, and she had
done nothing to lead them to believe she was dangerous. As the court noted in
Jacobs, a case in which the seizure at issue occurred in 1997:
Under existing Seventh Circuit and Supreme Court precedent at the time
the use of force occurred in this case, it appears to be clearly unreasonable
for the Defendant Officers to have pointed a loaded weapon at Jacobs for an
extended period of time when they allegedly had no reason to suspect that he
was a dangerous criminal, . . . and when Jacobs had done nothing either to
attempt to evade the officers or to interfere with the execution of their
duties. We therefore conclude that, taking the allegations [*976] in the
complaint as true, the Defendant Officers are not shielded by qualified
immunity from Jacobs' claim of excessive use of force.
Id. at 774.
Second, the
officers here employed other highly intrusive tactics that went well beyond
those used in Jacobs: at least ten officers surrounded plaintiff, lights were
employed to blind her, and the officers screamed profanity-laced threats. While
each of these factors, standing alone, might not be constitutionally offensive,
the "whole course of conduct of an officer in making an arrest or other
seizure -- including verbal exchanges with a subject -- must be evaluated for
Fourth Amendment reasonableness in light of the totality of the
circumstances." Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179,
1194 (10th Cir. 2001), cert. denied, 535 U.S. 1056, 152 L. Ed. 2d 824, 122 S.
Ct. 1914 (2002).
In Holland, the court denied qualified immunity to a ten-member
SWAT team which, while executing an arrest warrant for a misdemeanor assault
charge on April 16, 1996, swarmed a property with guns drawn and, using profane
language, ordered those present -- including children -- to lie face down. Id.
at 1183-84. Relying on the Seventh Circuit's McDonald decision, the court
stated:
The display of weapons, and the pointing of firearms directly at
persons inescapably involves the immediate threat of deadly force. Such a show
of force should be predicated on at least a perceived risk of injury or danger
to the officers or others, based upon what the officers know at that time.
"These are the very ingredients relevant to an excessive force
inquiry." McDonald, 966 F.2d at 294. Where a person has submitted to the
officers' show of force without resistance, and where an officer has no
reasonable cause to believe that person poses a danger to the officer or to
others, it may be excessive and unreasonable to continue to aim a loaded
firearm directly at that person, in contrast to simply holding the weapon in a
fashion ready for immediate use.
Id. at 1192-93.
The Holland court also criticized the officers' use of harsh
language:
Of course, in conducting a
search or making a seizure, "The risk of harm to both the police and the
occupants is minimized if the officers routinely exercise unquestioned command
of the situation." Michigan v. Summers, 452 U.S. 692, 702, 101 S. Ct.
2587, 69 L. Ed. 2d 340 (1981). Simple instructions spoken in a firm, commanding
tone of voice communicate clearly what an officer wants a subject to do, and
likely would be most effective, particularly in dealing with bystanders and
children.
In contrast, expletives
communicate very little of substance beyond the officer's own personal
animosity, hostility or belligerence. Such animus would be entirely misplaced .
. . where they have offered no resistance to the officers' initial show of
force.
One can be firm and direct
without being foul and abusive.
In
evaluating the Fourth Amendment reasonableness of a seizure, the officers'
verbal interaction as well as their physical conduct become part of the
totality of the circumstances to be considered. While it seems unlikely that
harsh language alone would render a search or seizure "unreasonable,"
verbal abuse may be sufficient to tip the scales in a close case.
Id. at 1194.
The court further noted:
Outfitting sheriff's
deputies in hooded combat fatigues, arming them with laser-sighted [*977]
weapons and ordering them to conduct the "dynamic entry" of a private
home does not exempt their conduct from Fourth Amendment standards of
reasonableness. The "SWAT" designation does not grant license to law
enforcement officers to abuse suspects or bystanders, or to vent in an
unprofessional manner their own pent-up aggression, personal frustration or
animosity toward others.
Id. at 1195. Based on this
combination of factors, the court had little difficulty in concluding:
"This was an invasion of a clearly established constitutional right, and
the officers' mistake as to what the law requires was unreasonable under all of
the circumstances." Id. at 1197. Similarly, defendants' labeling of the
seizure in the present case a "high-risk-felony stop", (Def. Brf. at
6, P 8), did not grant the officers license to abuse plaintiff. The combination
of tactics employed here -- spotlights, drawn weapons and profane threats to
shoot -- together constituted an invasion of plaintiff's clearly established
constitutional rights. n10
Third, in
the present case, plaintiff suffered physical injury, which was absent in
Holland. Id. at 1195. Garcia grabbed plaintiff's arms and twisted them
while attempting to handcuff her, tearing a ligament and causing permanent
injury. While not every unnecessary use of force during a seizure violates the
Fourth Amendment, Graham, 490 U.S. at 396,
it is clearly established that the excessive use of force during an
investigatory stop constitutes a Fourth Amendment violation, Lanigan, 110 F.3d
at 474 (citing Clash v. Beatty, 77 F.3d 1045, 1047 (7th Cir. 1996)); see also
Titran v. Ackman, 893 F.2d 145, 146 (7th Cir. 1990) (stating that an
individual's right under the Fourth Amendment "to be free of excessive
force during an arrest has long been established"). The use of force is excessive if it is not
"objectively reasonable" in light of the facts and circumstances confronting
the officers, without regard to their underlying intent or motivation, Graham,
490 U.S. at 397 ; and a plaintiff can overcome a claim of qualified immunity
either by (1) pointing to a closely analogous case that established a right to
be free from the type of force the
police officers used on her, or (2) showing that the force was so plainly
excessive that, as an objective matter, the police officers would have been on
notice that they were violating the Fourth Amendment. Clash, 77 F.3d at 1048.
Construing the evidence in plaintiff's favor, Garcia is not entitled to
qualified immunity for his use of force.
The Seventh
Circuit has denied qualified immunity on similar facts. In Payne v. Pauley, 337
F.3d 767, 779 (7th Cir. 2003), the plaintiff alleged that during a police
encounter on May 31, 1998, the officer unsnapped his holster and held his arms
over his head as if to strike her, and that he ran at her knocking into her
body with his stomach and chest. She alleged that, although she was cooperative,
the officer forced her arms behind her back, twisting her arm, and
over-tightening the handcuffs. As a result, she alleged that she received
significant injuries. Because the court's analysis is so instructive for
purposes of the present case, I quote from its opinion at length:
The Supreme Court has noted
that "the calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments -- in
circumstances that are tense, uncertain, and rapidly evolving -- about the
amount of force that is necessary [*978] in a particular situation."
Graham, 490 U.S. at 396-97. Nevertheless, even given this flexibility, Officer
Pauley's force in arresting a woman who was not threatening to harm the police officer
or anyone else at the scene, was not resisting or evading arrest, was not
attempting to flee, and was charged with such minor offenses, was not
objectively reasonable. See Herzog [v. Village if Winnetka, 309 F.3d 1041,
1042-43 (7th Cir. 2002)] (refusing to loosen plaintiff's chafing handcuffs
constitutes excessive force in case where complainant had violated no law, was
arrested without probable cause and did not resist); Brown v. Vill. of
Evergreen Park, 2002 U.S. Dist. Lexis 24261, No. 02 C 0236, 2002 WL 31844991,
at *4 (N.D. Ill. Dec. 18, 2002) (defendant alleged sufficient facts to support
a claim of excessive force where he was stopped for no reason, did not resist
arrest, was completely submissive and yet handcuffs applied so tightly he suffered
nerve damage); see also, Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002)
(whether police used excessive force was issue for jury where handcuffs were so
tight that plaintiff sprained wrist, shoulder, and elbow, where plaintiff had
committed no offense, he posed no safety threat, and made no show of
resistance); Mickle v. Morin, 297 F.3d
114, 121-22 (2d Cir.2002) (holding that rational juror could find use of force
excessive where handcuffing caused bruising and dislocated rotator cuff and
plaintiff's only offense was making nonemergency calls to 911); Kostrzewa v.
City of Troy, 247 F.3d 633, 640-41 (6th Cir. 2001) (refusing to dismiss
excessive force complaint where plaintiff was arrested for making an illegal
left-hand turn and application of handcuffs made wrists swollen, red, and
painful); LaLonde v. County of Riverside, 204 F.3d 947, 959-60 (9th Cir. 2000)
(allowing issue of excessive force to go jury where officers responding to
noise complaint applied tight handcuffs and used pepper spray); Heitschmidt v.
City of Houston, 161 F.3d 834, 838-40 (5th Cir. 1998) (holding that, on the
basis of the pleadings, the court could not conclude that the force exerted was
reasonable where the police officer placed the plaintiff in tight handcuffs for
four and a half hours, where plaintiff was not a target of the investigation,
he did not attempt to flee, and police had no reason to suspect him of
wrongdoing).
Having established the threshold question regarding the constitutional
right under the Fourth Amendment, we must now complete the qualified immunity
inquiry by determining whether it would have been sufficiently clear to a reasonable officer that he used excessive
force in the situation he confronted. At the time of the arrest, it was clearly
established that "police officers do not have the right to shove, push, or
otherwise assault innocent citizens without any provocation whatsoever." Clash v. Beatty, 77 F.3d
1045, 1048 (7th Cir. 1996). It was also well established that it was unlawful
to use excessively tight handcuffs and violently yank the arms of arrestees who
were not resisting arrest, did not disobey the orders of a police officer, did
not pose a threat to the safety of the officer or others, and were suspected of
committing only minor crimes. See Hill v. Miller, 878 F. Supp. 114, 116-17
(N.D. Ill. 1995) (denying summary judgment on excessive force claim where
police officer pushed complainant against police car and handcuffed him so
tightly that he suffered nerve damage where suspect violated no law, complied
fully with officer's instructions, and did not resist arrest); Ingram v. Jones,
1995 U.S. Dist. Lexis 18412, No. 95 C 2631, 1995 WL 745849, at *11 (N.D. Ill.
Nov. 29, 1995) (denying defendants' motion to dismiss excessive force claim
where woman alleged [*979] that police officer forcefully grabbed and
handcuffed her where she had committed no crime, did not resist, and fully
complied with all of the officer's requests), modified on other grounds by 1997
U.S. Dist. Lexis 8289, No. 95 C 2631, 1997 WL 323538 (N.D. Ill. June 9, 1997);
Tennen v. Shier, 1997 U.S. Dist. Lexis 8289, No. 94 C 2127, 1995 WL 398991, at
*7 (N.D. Ill. June 30, 1995) (reasonable factfinder could find officer used
excessive force in grabbing complainant's arm, and yanking him around by the
arm, where he had violated no law and posed no physical threat to the officer);
see also Martin v. Heideman, 106 F.3d 1308, 1312-13 (6th Cir. 1997) (though
amount of force used was allegedly greater than in instant case, stating that
overly tight handcuffing constitutes excessive force); Palmer v. Sanderson, 9
F.3d 1433, 1436 (9th Cir.1993) (refusing to grant summary judgment for police
officers where tight handcuffs caused pain and bruising and plaintiff passed
field sobriety tests and had violated no law).
. . .
In this case, according to
Payne's account, Officer Pauley confronted a woman who posed no danger to
Officer Pauley or to the public, who did not resist arrest, and who was alleged
to have committed a very minor, non-violent crime. If the facts as alleged by
Payne are found to be true, then and only then, should it have been clear to
Officer Pauley, or to any reasonable officer under these circumstances, that it
would be unlawful to use the amount of force he did to arrest Payne.
Id. at 779-80 (footnote
omitted; emphasis added).
In Meyers v. Nagel, No. 90-35718, 1992 U.S. App. Lexis 10252, at
*7 (9th Cir. Apr. 30, 1992), the court reached a similar conclusion, denying
qualified immunity when the plaintiff claimed that the officer "used
excessive force when he 'put one hand up high behind [plaintiff's] back' while
handcuffing him." While the record did not permit the court to determine
whether excessive force was in fact used, the court held: "If the facts
are as Meyers claims, the force used by Nagel may be excessive and he could not
reasonably believe his actions were lawful." Id. at *10. Thus, I find that
these closely analogous cases establish a right to be free from the type of
force Garcia used on plaintiff.
Further, as an objective matter, the force allegedly used here
was so plainly excessive that Garcia
would have been on notice that he was violating the Fourth Amendment. Courts
have consistently held that a reasonable inference that excessive force was
used may be drawn from the fact of serious injuries. See, e.g., Santos v.
Gates, 287 F.3d 846, 855 (9th Cir. 2002) (holding that jury could infer use of
excessive force, even where plaintiff did not specifically recall the incident,
because plaintiff suffered broken vertebra); Frazell v. Flanigan, 102 F.3d 877,
883, 887 (7th Cir. 1996), abrogation on other grounds recognized by McNair v.
Coffey, 279 F.3d 463 (7th Cir. 2002) (denying qualified immunity where officers
caused serious injuries to plaintiff during arrest). Construing the facts in
plaintiff's favor, there is nothing to suggest that Garcia was justified in
using force sufficient to cause the injury alleged: a reasonable officer would
know that he should not twist the arm of a non-combative, fifty-five year old woman
with force sufficient to tear a ligament and cause permanent injury. n11
[*980]
Therefore, for the reasons stated, Garcia's motion for summary judgment on the
basis of qualified immunity will be granted as it pertains to the decision to
stop plaintiff, but denied as it pertains to the manner in which the stop was
effectuated.
3. Municipal Liability
Plaintiff argues that the City is liable for the unreasonable
seizure because the officers were acting pursuant to City policy. Although
municipalities are not vicariously liable under § 1983 for the constitutional
torts of their employees, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 56
L. Ed. 2d 611, 98 S. Ct. 2018 (1978), a § 1983 plaintiff may prevail on a claim
against a municipality if she can establish that "the deprivation of
constitutional rights [was] caused by a municipal policy or custom."
Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003) (internal
quotation marks and citation omitted). Unconstitutional policies or customs can
take three forms: (1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a "custom
or usage" with the force of law; or (3) a constitutional injury that is
caused by a person with final policy-making authority. Id. (citing Palmer v. Marion
County, 327 F.3d 588, 594-95 (7th Cir. 2003)). In the present case, plaintiff argues that the City is
liable for the unreasonable stop of her vehicle and subsequent use of the
sensory overload tactic on three different theories. I will consider each in
turn.
First, she
argues that the City has an express policy approving the use of the sensory
overload tactic in certain situations and that the City was deliberately
indifferent as to whether its officers were implementing the tactic
unconstitutionally. The City does not dispute that it had an express policy
that, under certain circumstances, officers stopping vehicles for investigative
purposes were to surround the vehicle and order the driver out at gunpoint
while shouting commands laced with profanities. The City admits that it trained
police officers to use this tactic. Plaintiff does not contend that the City's
policy was facially unconstitutional but, rather, that it was unconstitutional
as applied to the stop of her vehicle. In order to establish municipal
liability on the theory that a facially valid policy was implemented in a way
that violated a plaintiff's constitutional rights, the plaintiff must
demonstrate that the municipality was deliberately indifferent to the known or
obvious consequences off the policy. Rasche, 336 F.3d at 599. In other words,
plaintiff must show that
it should have been obvious to a reasonable policymaker that the policy would
lead to the deprivation of a federally protected right. Bd. of Comm'rs
of Bryan County v. Brown, 520 U.S. 397, 411, 137 L. Ed. 2d 626, 117 S. Ct. 1382
(1997); see also Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002).
"A showing of simple or even heightened negligence will not suffice."
Brown, 520 U.S. at 407.
Plaintiff
argues that the City failed to provide any supervision, monitoring or oversight
of police officers who implemented the policy, and that such failure amounted
to deliberate indifference to the [*981] policy's obvious consequences. The
City does not dispute that, at the time of the incident, the policy contained
no mechanism to review its use. The policy did not require officers who used
the sensory overload tactic to advise their superiors of such use or document
their actions and the results in reports. Plaintiff argues that it should have
been obvious to the City that without supervision and monitoring the
consequences of a policy endorsing such highly intrusive conduct would be that
individuals' constitutional rights would be violated.
However, under Seventh Circuit law, a City cannot be held liable
for deliberate indifference unless the plaintiff establishes that the City was
or should have been aware of a pattern of constitutional violations caused by
its policy. Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525,
531 (7th Cir. 2000) (holding that "a single instance of allegedly
unconstitutional conduct does not demonstrate a municipality's deliberate
indifference to the constitutional rights of its inhabitants"). Here,
plaintiff does not present evidence of a pattern of constitutional violations caused
by the use of the sensory overload tactic; she refers only to her own
experience. Thus,
plaintiff may not prevail on her theory that the City was deliberately
indifferent to the known or obvious consequences of its policy approving of the
use of this tactic.
Plaintiff's
second argument in support of her municipal liability claim is that Garcia had
final policymaking authority with respect to the procedures used at the scene
of plaintiff's stop because his actions were not subject to supervision or
review after the fact. "In order to have final policy-making
authority, an official must possess 'responsibility for making law or setting
policy,' that is, 'authority to adopt rules for the conduct of
government.'" Rasche, 336 F.3d at 599 (quoting Auriemma v. Rice, 957 F.2d
397, 401 (7th Cir. 1992)). A person's status as a final policy-maker under §
1983 is a question of state or local law. Pembaur v. City of Cincinnati, 475
U.S. 469, 483, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986). Final policy-making authority
may be granted directly by statute or delegated or ratified by an official
having such authority. Id. The Seventh Circuit has further elaborated on the
term "final":
Every public employee,
including the policeman on the beat and the teacher in the public school,
exercises authority ultimately delegated to him or her by their public
employer's supreme governing organs. A police officer has authority to arrest,
and that authority is "final" in the practical sense that he doesn't
have to consult anyone before making an arrest; likewise a teacher does not
have to consult anyone before flunking a student. That is a perfectly good use
of the word "final" in ordinary conversation but it does not fit the
cases; for if a police department or a school district were liable for
employees' actions that it authorized but did not direct, we would be back in
the world of respondeat superior. To avoid this the cases limit municipal liability under section 1983 to
situations in which the official who commits the alleged violation of the
plaintiff's rights has authority that is final in the special sense that there
is no higher authority.
, Gernetzke v. Kenosha
Unified Sch. Dist. No. 1274 F.3d 464, 469 (7th Cir. 2001) , cert. denied, 535
U.S. 1017, 152 L. Ed. 2d 620, 122 S. Ct. 1606 (2002).
Garcia's
role in the present case is similar to the "policeman on the beat"
described in Gernetzke. His decision to use the sensory overload tactic in the
course of his investigatory stop of plaintiff was an exercise of authority
delegated to him by [*982] the City. However, his exercise of such authority
was not "final" in the sense that § 1983 requires. Although plaintiff
argues that the City delegated such authority to its officers by failing to
require them to file formal reports after employing the procedure, this
argument ignores the fact that the City trained officers to use the procedure
and identified the circumstances under which it was to be used. n12 Therefore,
Garcia did not have final policymaking authority concerning the procedures
employed when plaintiff was stopped.
Plaintiff's
final argument relating to municipal liability is that even if Garcia lacked
final policymaking authority, the City "ratified" his conduct by
failing to adequately investigate and punish him for his use of the sensory
overload tactic. A municipality will be
held liable under § 1983 on a ratification theory if a municipal official
having final policymaking authority approves a subordinate's decision and the
basis for it. Baskin v. City of Des Plaines, 138 F.3d 701, 705 (7th Cir. 1998).
However, "a plaintiff cannot
establish a § 1983 claim against a municipality by simply alleging that the
municipality failed to investigate an incident or to take punitive action
against the alleged wrongdoer." Id.; see also Gernetzke, 274 F.3d at
469-70. Thus, the City's failure to investigate or punish Garcia does not give
rise to municipal liability. Plaintiff also argues that by not requiring
officers to file reports after employing the sensory overload tactic, the City
implicitly ratified every use of sensory overload by its officers. However, the
City's failure to require formal reports to be filed after, every use is not
the same as affirmative approval of every use. Consequently, plaintiff's
argument that the City is liable under § 1983 because it ratified Garcia's
actions fails. Thus, defendants' motion for summary judgment will be granted on
plaintiff's Fourth Amendment claim against the City.
B. Equal Protection and Due
Process Claims
Plaintiff also raises several equal protection and due process
claims. She argues that by subjecting her to excessive force Garcia acted
arbitrarily or with a racial motivation, violating her right to equal
protection. A state official may violate an individual's right to equal
protection by treating her differently than other similarly situated
individuals without a rational basis or because of the individual's race. See
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564-65, 145 L. Ed. 2d 1060, 120 S.
Ct. 1073 (2000) (holding that Equal Protection Clause is violated when
government treats individual differently from others similarly situated without
any rational basis); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977) (holding that
government's intentional race discrimination violates Equal Protection Clause).
However, other than showing that Garcia may have used excessive force and that
she is an African-American, plaintiff adduces no evidence in support of her
equal protection claim. She does not present evidence that Garcia intentionally
discriminated against her or that he treated her differently than others
similarly situated. Nor does she present authority supporting her argument that
the facts she alleges add up to an equal protection claim. Thus, defendants'
summary judgment motion with respect to this claim will be granted.
Plaintiff also alleges that the City failed to timely and fully
respond to her requests under the state open records law. She claims that this
was part of a "cover-up" [*983] of the illegal seizure, which
violated her rights to due process and equal protection.
The Due Process Clause has a substantive and a procedural
component, and the deprivation of either may give rise to a claim under § 1983.
Bigby v. City of Chicago, 766 F.2d 1053, 1058 (7th Cir. 1985). In order to
establish a procedural due process claim, the plaintiff must show that she was
deprived of liberty or property without having been given notice and an
opportunity to be heard prior to the deprivation. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). A
procedural due process claim pertains
not to the deprivation of itself but only to the adequacy of the procedures
employed. Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 955-56 (7th Cir.
1988). In the present case, plaintiff claims a property interest in obtaining
public records but does not allege any defect in the procedure by which she was
deprived of such interest. n13 Thus, her procedural due process claim against
the City fails.
A substantive due process claim challenges governmental action
regardless of the fairness of the procedure used to implement such action.
Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997). Most of the Supreme
Court's substantive due process decisions involve the deprivation of some
fundamental right that the Court characterizes as a liberty interest. See,
e.g., Roe v. Wade, 410 U.S. 113, 154, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973)
(involving right to an abortion). In the present case, plaintiff claims that
she has a liberty interest in protecting her reputation, which the City
infringed by denying her open records requests. However, she provides no
authority supporting the proposition that substantive due process includes the
right to obtain public records in order to protect one's reputation. n14
Further, even if there were such a right, plaintiff presents no evidence
indicating how her reputation was harmed or how the City's alleged failure to
respond to her requests for records contributed to such harm. Thus, plaintiff's
substantive due process claim against the City must also be dismissed.
Plaintiff also argues that the City had no rational basis for
failing to adequately respond to her open records requests and that it
therefore violated her right to equal protection. To establish an equal
protection violation, plaintiff must allege that, based on some classification,
the City treated her differently from similarly situated individuals. Olech,
528 U.S. at 564 (holding that a "class of one" may bring a successful
equal protection claim where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there is no
rational basis for the difference in treatment). In the present case, plaintiff
presents no evidence suggesting that the City acted with a discriminatory
intent or that it treated similarly situated individuals differently than she.
Thus, her equal protection claim against the City must also be dismissed.
[*984] IV. STATE LAW CLAIMS
Plaintiff also brings several state law claims. Although it is
not entirely clear, she appears to allege claims of battery and negligence
against Garcia, as well as a claim under the state open records law against the
City.
A. Claims Against Garcia
I have supplemental jurisdiction over state law claims
"that are so related" to pending federal claims "that they form
part of the same case or controversy under Article III of the United States
Constitution." 28 U.S.C. § 1367(a). For claims to be part of the same case
or controversy, they must arise out of a common nucleus of operative fact.
Ammerman v. Sween, 54 F.3d 423, 424 (7th Cir. 1995). "A loose factual
connection between the claims is generally sufficient." Id. I have
supplemental jurisdiction over plaintiff's state law claims against Garcia
because they arise out of the same incident as her Fourth Amendment claim.
Garcia argues that he is immune from liability in connection
with plaintiff's state law claims. Wis. Stat. § 893.80(4) affords municipal
employees immunity from suit for "acts done in the exercise of legislative,
quasi-legislative, judicial or quasi-judicial functions." The terms
"quasi-legislative" or "quasi-judicial" are synonymous with
"discretionary." Scarpaci v. Milwaukee County, 96 Wis. 2d 663, 683,
292 N.W.2d 816 (1980). Plaintiff concedes that when Garcia pulled her arms he
was performing a discretionary act, but she contends that his conduct fell
within an exception to immunity under § 893.80(4) because it was
"malicious, willful, and intentional." See Willow Creek Ranch, L.L.C.
v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 425, 611 N.W.2d 693 (2000).
"Malice" means "the intent, without justification or excuse, to
commit a wrongful act." Black's Law Dictionary 968 (7th ed. 1999).
"Reckless disregard of the law or a person's legal rights" can also
constitute malice. Id.; see also Thurman, 197 F. Supp. 2d at 1151. Garcia does
not respond to plaintiff's contention that he is not immune because his conduct
was malicious, willful and intentional.
Under state law, a police officer may be liable for the intentional tort of battery if he uses excessive force in making an arrest. See Kofler v. Florence, 216 Wis. 2d 41, 45, 573 N.W.2d 568 (Ct. App. 1997). There is evidence in the record that Garcia unreasonably used enough force to cause plaintiff to suffer a torn ligament and chronic pain. Thus, taking the facts in the light most favorable to plaintiff, I cannot conclude as a matter of law that his conduct was not malicious, willful and intentional, or that a reasonable jury could not find that he committed a battery. Thus, with respect to plaintiff's battery claim against Garcia, defendants' motion for summary judgment will be denied.
In her complaint, plaintiff may also allege that Garcia was
negligent. If so, however, plaintiff has abandoned this claim by failing to
discuss or support it in her summary judgment briefs. Further, under §
893.80(4), Garcia would be immune from liability for mere negligence. Thus, any
negligence claim will be dismissed.
B. Open Records Law Claim
Against City
Plaintiff moves for summary judgment on the issue of liability
on her claim under the state open records law. That claim, however, raises a
host of issues that have not been adequately addressed in the briefs.
Therefore, I will deny the motion without prejudice.
V. CONCLUSION
Therefore, for the reasons stated,
[*985] IT IS ORDERED that defendants' motion for summary
judgment on plaintiff's § 1983 claim against Garcia based on the Fourth
Amendment is GRANTED in part and DENIED in part, as stated herein; defendants'
motion for summary judgment on plaintiff's § 1983 claim against the City based
on the Fourth Amendment is GRANTED; defendants' motion for summary judgment on plaintiff's § 1983 claims based on
the Due Process and Equal Protection Clauses is GRANTED; and defendants' motion
for summary judgment on plaintiff's state law negligence claim is GRANTED, and
on plaintiff's state law battery claim is DENIED.
IT IS FURTHER ORDERED that plaintiff's motion for summary
judgment on her claim that the City violated the state open records law is
DENIED without prejudice.
Dated at Milwaukee, Wisconsin, this 21 day of October, 2003.
LYNN ADELMAN
District Judge
n1
Plaintiff also names as parties several John Doe defendants, although she
appears to have abandoned any claims against them. Parties may be identified by fictitious names only under
exceptional circumstances. Doe v. Blue Cross & Blue Shield United of Wis.,
112 F.3d 869, 872 (7th Cir. 1997) ("The use of fictitious names is
disfavored, and the judge has an independent duty to determine whether
exceptional circumstances justify such a departure from the normal method of
proceeding in federal courts."). In the present case, plaintiff does not
identify any exceptional circumstances; thus, any claims against unknown
defendants will be dismissed, and the caption will be amended accordingly.
n2 "A
seizure becomes an arrest when 'a reasonable person in the suspect's position
would have understood the situation to constitute a restraint on freedom of
movement of the degree which the law associates with formal arrest.'"
Ienco, 182 F.3d at 523 (quoting United States v. Corral-Franco, 848 F.2d 536,
540 (5th Cir. 1988)). Probable cause to arrest exists when the officers have
facts and circumstances within their knowledge and of which they have
reasonably trustworthy information that would sufficiently warrant a prudent
person in believing that the suspect had committed or was committing the
offense. United States v. Scheets, 188 F.3d 829, 839 (7th Cir. 1999). There
must be a "probability or substantial chance" of criminal activity by
the suspect. United States v. Sawyer, 224 F.3d 675, 679 (7th Cir. 2000).
n3 Defendants indicate that the dispatch report was
prompted by a citizen who flagged down an officer and indicated that a female
in a van possessed a gun. However, because the record does not disclose whether
the citizen was identified, this can be analyzed as an "anonymous
tip" case under Florida v. J.L. In United States v. Hensley, 469 U.S. 221,
232, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985), the Court held that a Terry stop
based on a police bulletin or flyer from other officers is valid if the
bulletin itself was based on articulable facts supporting reasonable suspicion.
The present record does not disclose
what additional information, if any (or from what source), the officers
responsible for the dispatch possessed. Thus, construing the facts in
plaintiff's favor, I can assume that the dispatch was based only on an
anonymous tip.
n4
Plaintiff assumes, arguendo, that Garcia possessed reasonable suspicion to stop
her but argues that at some point the stop evolved into a seizure. However,
given the scant record and the Supreme Court's clear statement in Florida v.
J.L., I cannot conclude as a matter of law that the stop was valid. In any
event, plaintiff was subjected to a "seizure" under the Fourth
Amendment at the moment she was pulled over by Garcia. See, e.g., Delaware v.
Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979
("Stopping an automobile and detaining its occupants constitute a
'seizure' within the meaning of [the Fourth Amendment], even though the purpose
of the stop is limited and the resulting detention quite brief.").
n5 I
need not determine whether the seizure evolved into an arrest without probable
cause. Although the officers lacked probable cause to arrest (and defendants do
not argue to the contrary), it is unclear whether this encounter reached the
point of an actual arrest. See United States v. Rodriguez, 831 F.2d 162, 166
(7th Cir. 1987) (discussing factors relevant in deciding whether Terry stop has
become an arrest). In any event, this case is appropriately analyzed as a Terry
stop in which unreasonably intrusive methods were allegedly employed. The
standard of objective reasonableness applies to the methods employed in Terry
stops and actual arrests.
n6
Although plaintiff argues that the actions of multiple officers caused the stop
to be unlawfully intrusive, she names only Garcia as a defendant. However, defendants do not dispute that, if
the stop was unlawfully intrusive, Garcia may be held liable for it. See, e.g.,
Watts v. Laurent, 774 F.2d 168, 179 (7th Cir. 1985) (stating that government
actors may be held jointly and severally liable under § 1983).
n7 The
Seventh Circuit has held that if further factual development is necessary to
determine whether the officer is entitled to qualified immunity the court may
deny the officer's pre-trial motion. See Lanigan v. Vill. of East Hazel Crest,
Ill., 110 F.3d 467, 476 (7th Cir. 1997). In the present case, further factual
development is obviously needed to determine what exactly the officers knew and
did at the time of the stop. In this decision, I hold only that construing the
facts in the light most favorable to plaintiff, Garcia is not entitled to
qualified immunity based on the manner in which the seizure was effected. See,
e.g., Garvin v. Wheeler, 304 F.3d 628, 633 (7th Cir. 2002) (discussing denial
of motion for summary judgment on qualified immunity grounds were there were
genuine issues of material fact for trial).
n8
Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).
n9 In
DeBerry, the officer received a dispatch conveying an anonymous tip that at the
corner of Main and Calhoun Streets was a black man wearing a tan shirt and tan
shorts who had a gun in his waistband. The officer drove to that location and
saw a man fitting the description. The officer approached the man and told him
he wanted to talk to him. The man took several steps backward, turned slightly
to the side, and moved his hands as if he might be about to draw a gun. The
officer then drew his own gun and ordered the man to place his hands on the
hood of the police car. When he complied, the officer holstered his gun. A
backup officer arrived and the first officer then patted down the man and found
a gun. Id. at 885. Thus, in DeBerry, the officers had more to go on than in the
present case, where plaintiff made no furtive or threatening gestures. The
holding of DeBerry therefore does not necessarily support Garcia's stop.
Nevertheless, the court's dicta quoted above seems to.
n10
Moreover, because defendants fail to explain what the underlying felony was, it
is impossible to accept their characterization of this seizure as one involving
high risk.
n11 In
McNair v. Coffey, 279 F.3d 463, 465 (7th Cir. 2002), the court granted
qualified immunity to an officer who participated in a "high risk"
traffic stop: eight squads surrounded the plaintiff, and the officers ordered
him out of the car at gun point. However, McNair is easily distinguishable. In
that case, the officers had probable cause to arrest the suspect, he failed to
"pull over for some time," and, once he exited the car, he was
"not roughed up; matters were handled peaceably." Id. This case
differs in critical respects: the officers lacked probable cause, their methods
were more intrusive, and plaintiff was "roughed up."
n12
Plaintiff does not allege that the City failed to adequately train officers
concerning the circumstances under which the sensory overload procedure was to
be used.
n13 Wisconsin
has a procedure by which aggrieved applicants can obtain public records -- its
open records law. Under the law, if an applicant for a record believes that the
record is being improperly withheld, she may bring an action to compel its
disclosure and may obtain damages, costs and attorneys' fees. Wis. Stat. §
19.37. Plaintiff does not claim that this procedure is defective.
n14 The
Supreme Court has held that mere injury to reputation does not constitute a
deprivation of liberty. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 123 S.
Ct. 1160, 1162, 155 L. Ed. 2d 98 (2003) (citing Paul v. Davis, 424 U.S. 693, 47
L. Ed. 2d 405, 96 S. Ct. 1155 (1976)).
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