J.P. Stadtmueller, U.S. District Judge.
This litigation arises from the death of Dontre Hamilton ("Hamilton") on April 30, 2014. On that date, Hamilton was shot and killed by Defendant Christopher E. Manney ("Manney"), an officer with the Milwaukee Police Department ("MPD"), after a physical altercation between the two. Plaintiffs, Hamilton's estate and his surviving minor child, filed suit against Manney and the City of Milwaukee (the "City") on April 27, 2016. (Docket #1).
On February 1, 2017, the parties each filed motions for summary judgment. (Plaintiffs, Docket #45; Defendants, Docket #48). As of March 15 and March 17, 2017, each respective motion became ripe for decision. See (Briefing on Plaintiffs' motion, Docket #56 and #75; Briefing on Defendants' motion, Docket #78 and #88). As Plaintiffs' motion is narrower than Defendants', the Court will address it first. The Court discusses the facts relevant to the respective motions separately, to ensure that the proper standard of review is preserved for each.
Federal Rule of Civil Procedure 56 provides the mechanism for seeking summary judgment. Rule 56 states that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A "genuine" dispute of material fact is created when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness's testimony "create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all." Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)). The non-movant "need not match the movant witness for witness, nor persuade the court that [their] case is convincing, [they] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
Plaintiffs seek judgment on their second cause of action, which asserts that Manney unreasonably searched Hamilton in the course of events preceding his death. (Docket #1 at 38).
The operative facts of Plaintiffs' motion are largely undisputed; the parties' disagreement is chiefly legal. On October 15,
Manney appealed his discharge on October 17, 2014. The FPC held a hearing on the matter spanning from March 19 to March 23, 2015. Plaintiffs state that the FPC hearing "was essentially a court trial between Manney and the MPD." (Docket #55 at 11). Defendants maintain that there were differences between the hearing and a standard trial, including that the commissioners were entitled to ask questions of witnesses, and that the matter was based on an appeal of a disciplinary order and was conducted according to procedures mandated by state law. Id. at 11-12. Defendants further assert that the MPD was not a party to the proceeding, but rather it was solely between Manney and Flynn. Id.
The hearing officer himself stated that "this process is conducted very much like a court trial." (Docket #49-4 at 6). The hearing proceeded in two phases: first, to determine "whether there was in fact a rule violation" by Manney as asserted by Flynn, and second, whether "the discipline [was] appropriate based on the circumstances of what happened and based on Officer Manney's history with the department, his career, his performance, etc." Id. at 7-8. Both sides were represented by counsel, gave opening and closing statements, and offered evidence. The parties introduced exhibits and elicited witness testimony on direct and cross examination. Manney himself testified at both phases of the hearing.
The FPC upheld Flynn's action by unanimous written decision on April 28, 2015 (the "FPC Decision"). The FPC Decision posed various "findings of fact" and "conclusions of law" addressing the parties'
Manney appealed the FPC Decision to the Milwaukee County Circuit Court (the "Circuit Court") in accordance with state law. Manney and the FPC were the parties to the appeal. Both parties filed briefs with the Circuit Court. Manney also filed a petition for writ of certiorari with the Circuit Court, which was similarly briefed. The Circuit Court issued its decision on both in a combined order on July 22, 2016.
Therein, it described Manney's argument against MPD policy, namely that he felt "it imposes an extra limitation on a police officer's right to conduct a weapons pat-down, a limitation that isn't imposed by the state statute or constitutional law principle that authorize such searches." (Docket #49-12 at 6). MPD policy mandates that to conduct a pat-down search, an officer must believe that 1) the target poses a threat to the officer's safety, and 2) the target possesses weapons. Id. at 6. Manney asserted that only the first element was required by the Supreme Court's applicable precedent, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Circuit Court disagreed, citing Terry's holdings that an officer must suspect "that the persons with whom he is dealing may be armed and presently dangerous." Id. at 30, 88 S.Ct. 1868. It further found that Wisconsin law is consistent with Terry. (Docket #49-12 at 7). The Circuit Court concluded that MPD policy did not conflict with the constitutional prerequisites of a pat-down search, and thus the FPC did not apply an improper legal standard to its decision in that regard. Id. at 8.
As to the facts of Manney's appeal, the Circuit Court discussed the parties' vigorous disputes thereof. Id. at 9-13. The Circuit Court noted that it was not at liberty "to weigh the evidence anew; the [FPC's] choice of which evidence to accept [or reject] is conclusive." Id. at 9-10. It ultimately concluded that the Decision had an adequate factual basis. Id. at 13. Manney appealed that order on August 11, 2016, but only as it related to his petition for a writ of certiorari. See Christopher E. Manney v. Bd. of Fire & Police Comm'rs for the City of Milwaukee, 2016-AP-1598, Case History, available at:
Plaintiffs argue that, in light of the Decision and Manney's unsuccessful appeals thereof (the "Discharge Proceedings"), Manney must be precluded from contesting whether he had reasonable suspicion to conduct a pat-down search of Hamilton. The direct basis for their motion is the Circuit Court's July 22, 2016 judgment and order (the "Judgment"). This Court must give a state court judgment preclusive effect just as it would a federal judgment, and because the Judgment was issued by a
Issue preclusion prevents a party from re-litigating "an identical issue of law or fact in a subsequent action." Mrozek v. Intra Fin. Corp., 281 Wis.2d 448, 699 N.W.2d 54, 61 (2005). The doctrine "wards off endless litigation, ensures the stability of judgments, and guards against inconsistent decisions on the same set of facts." Gentilli v. Bd. of Police & Fire Comm'rs of City of Madison, 272 Wis.2d 1, 680 N.W.2d 335, 344 (2004). There are two requirements for issue preclusion to take effect. First, "the question of fact or law that is sought to be precluded actually must have been litigated in a previous action and be necessary to the judgment." Id. Second, the Court must "conduct a fairness analysis to determine whether it is fundamentally fair to employ issue preclusion given the circumstances of the particular case at hand." Id. The Court will address each requirement below, as well as Defendants' other arguments in opposition to Plaintiffs' motion.
The reasonableness of Manney's pat-down search of Hamilton was actually litigated at each stage of the discharge proceedings. An issue is "actually litigated" when "it is `properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.'" In re Estate of Felt, 256 Wis.2d 563, 647 N.W.2d 373, 376-77 (2002) (quoting Restatement (Second) of Judgments § 27 cmt. d (1980)). First, Flynn's discharge order stated directly that Manney's search was unreasonable. Second, after holding an evidentiary hearing on the matter, the FPC found that a preponderance of the evidence supported Flynn's decision. Finally, the Circuit Court's Judgment found that the FPC Decision had an appropriate basis in fact and law. While the propriety of the search was not the only issue addressed in the Discharge Proceedings, it was their primary focus. At each stage of the Discharge Proceedings, the presiding authority expressly decided that Manney's search was unreasonable.
Defendants argue that while the reasonableness of the search was at issue in the Discharge Proceedings, it was assessed in light of Manney's violation of MPD policy. They maintain that none of the decisions held that the search was unreasonable pursuant to constitutional standards. Specifically, Defendants contend that the Fourth Amendment reasonableness analysis reviews the totality of the circumstances presented to the officer at the time of the search, while Flynn and the FPC considered subsequent events in arriving at their conclusions. Thus, in Defendants' view, no preclusive effect can attach to the Judgment.
As the Judgment shows, Defendants are incorrect. The Circuit Court held that MPD policy, Wisconsin law founded on Terry, and Terry itself all held Manney to the same reasonableness standard for his pat-down search. (Docket #49-12 at 6-8).
The Court further notes that it must focus on the Judgment itself, as issue preclusion may only attach to a judgment. See Mrozek, 699 N.W.2d at 61 ("In order for issue preclusion to be a potential limit on subsequent litigation, the [issue] actually must have been litigated in a previous action and be necessary to the
No decisionmaker in the Discharge Proceedings considered post-incident events in evaluating Manney's compliance with this standard. At his deposition in this matter, Flynn consistently testified that Hamilton's death was a factor bearing on punishment, not Manney's reasonable suspicion (or lack thereof). (Docket #61-6 at 35:15-36:5) ("Also, you know, this may come up otherwise, but every officer who is found not to've had articulable suspicion is not subject to firing. In the code of conduct we have also has in it aggravating and mitigating factors. And one of the most significant aggravating factors is the ultimate degree of harm that arose from your error. . . . [T]he degree of harm was a loss of life."); see also id. at 143:5-10 ("Given the fact that, ultimately, the degree of harm was death, that's why the punishment was termination."). Similarly, the FPC Decision limits its discussion of post-incident events to evaluating whether Flynn's decision to terminate Manney was appropriate. (Docket #49-9 at 11-12).
At all stages of the Discharge Proceedings, then, the same pat-down search standard was applied to Manney's conduct. To the extent Defendants continue to argue that the standard was wrong, or that it was incorrectly applied to Manney, this is
Having established that the reasonableness of Manney's search was actually litigated in the Discharge Proceedings and was necessary to the Judgment, the Court moves to the Mrozek fairness analysis. Wisconsin courts weigh a number of factors in assessing fairness, including:
Mrozek, 699 N.W.2d at 61-62. Factors one, two, and four are questions of law, and factors three and five require exercise of the Court's discretion. Id. at 62.
As to the first factor, Manney has exhausted all review of the Discharge Proceedings. His appeal to the Circuit Court, and the resulting Judgment, are the final say on the matter pursuant to the governing Wisconsin statutes. Wis. Stat. § 62.13(5)(b) (allowing Flynn to file charges against Manney), (d)-(em) (establishing FPC hearing procedure), and (I) (permitting appeal to the Circuit Court, stating that "[i]f the order of the [FPC] is sustained it shall be final and conclusive."). Manney has utilized all levels of review available to him.
Defendants counter that Manney is in fact appealing the Judgment. As noted previously, this matter is currently pending in the Wisconsin Court of Appeals. Yet Defendants' position obscures the nature of the appeal. When Manney took the Discharge Proceedings to the Circuit Court, he filed two actions, one for review of the FPC Decision pursuant to the above-cited Wisconsin statute, and another for a writ of certiorari. See (Statutory Review, Case No. 2015-CV-3881, Docket #49-10; Writ, Case No. 2015-CV-5081, Docket #49-11). The Circuit Court consolidated the cases for purposes of issuing its Judgment. His currently pending appeal is of the denial of certiorari, not of the Circuit Court's affirmance of the FPC Decision. (Docket #57-5 at 1, 10) (citing the writ action case
The Gentilli case is instructive, where a similar scenario unfolded. Gentilli, a fire department employee, was charged with possessing and using cocaine by the fire chief. Gentilli, 680 N.W.2d at 337. The charges were heard by the FPC, which confirmed the charges and recommended firing him. Id. Gentilli then filed two parallel cases in the circuit court, as did Manney: one for his statutory appeal, pursuant to Section 62.13(5)(I), and one for a writ of certiorari. Id. The circuit court ruled on the statutory appeal first and concluded, as did our Circuit Court, that the discharge was supported by just cause. Id. at 337-38. The circuit court then dismissed the certiorari action because "all of the issues raised in the petition were encompassed within the scope of the companion statutory appeal." Id. (quotation marks omitted). Gentilli appealed the dismissal of his certiorari action. Id.
The Gentilli court cited Section 62.13(5)(I) in holding that the circuit court's disposition of the statutory appeal was final and not subject to further review. Id. at 338-39. The court's main purpose was to determine whether a separate certiorari action was permitted in light of the 1993 amendments to the statutory action procedure (holding that it was allowable). Id. at 339-45. Relevant to our purposes, the court went on to find that in the case of parallel statutory and certiorari actions, an appeal of the certiorari action is strictly limited to whether the FPC "kept within its jurisdiction and proceeded on a correct theory of the law." Id. at 344. As confirmed late last year, this means that when parallel actions are pursued, and the statutory appeal fails in the circuit court, the employee cannot re-argue whether he violated the applicable departmental rules on certiorari appeal. Vidmar v. Milwaukee City Bd. of Fire Police Comm'rs, 372 Wis.2d 701, 889 N.W.2d 443, 449 (2016); see also Umhoefer v. Police and Fire Comm'n of City of Mequon, 257 Wis.2d 539, 652 N.W.2d 412, 415-16 n.4 (2002) ("Umhoefer filed both a statutory review pursuant to Wis. Stat. § 62.13(5)(I) and a certiorari review before the circuit court. However, this court is limited to those issues brought under certiorari review. . . . [I]f a circuit court sustains the commission's determination, the commission's decision `shall be final and conclusive.' Thus, this court is without jurisdiction to review Umhoefer's claims brought pursuant to § 62.13(5).").
Manney's pending appeal, then, is quite limited, and he cannot use it to challenge the FPC's or Circuit Court's determination that he lacked reasonable suspicion to search Hamilton. Defendants might have contended that the remaining avenues to challenge the FPC Decision, jurisdiction and applying an incorrect theory of law, work to keep the question unsettled. Plaintiffs attempt to head this argument off at the pass, stating in their opening brief that the FPC's jurisdiction is not subject to challenge (as noted above, it is provided by statute), and that the "theory of law" at issue is whether Manney was properly discharged, not whether his search of Hamilton was reasonable. Defendants make no attempt to respond to these points; their entire argument is to cite to Manney's appellate briefs in the certiorari action, wherein he contends that "the FPC proceeded on incorrect theories of law and that he was denied Due Process of law, and that therefore, the decisions of the circuit court and the FPC should be reversed in all respects." (Docket #56 at 2). Such an underdeveloped position, which fails to meaningfully address Plaintiffs' contentions, is at best unpersuasive, and at worst concedes the point. See Palmer v. Marion County, 327 F.3d 588, 597-98 (7th
Returning to the fairness factors, the second factor has already been resolved. The law applied in the Discharge Proceedings was both internally consistent and in accordance with Supreme Court precedent. See supra Part 3.2.1. The third factor also favors Plaintiffs. The FPC hearing had all the makings of a court trial and gave Manney a forum to present his case nearly identical to that which he would receive in this Court. Likewise, his appeal to the Circuit Court functioned similarly to an appeal from a trial court. Other than passing references to potential inadequacies in their response to Plaintiffs' statement of facts, (Docket #55 at 11-12), Defendants raise little concern with the quality or extensiveness of the Discharge Proceedings. The Court must conclude that Defendants' lack of opposition is a tacit agreement that the Discharge Proceedings afforded Manney adequate process.
Defendants do, however, note one difference between the Discharge Proceedings and normal civil litigation: the qualified immunity defense. Manney asserts the defense here, where he could not in the Discharge Proceedings. This observation, while true, is of no moment. As discussed below, Manney is not entitled to qualified immunity at this juncture. See infra Part 4.2.5. The facts describe a violation of Hamilton's constitutional right to be free of a suspicionless search, and that right was clearly established by Terry nearly fifty years ago.
Defendants do not mention the fourth factor. Again, without opposition, the Court finds that it favors Plaintiffs. Plaintiffs' burden of proof in this Court is no greater than that imposed on Flynn in the Discharge Proceedings. Plaintiffs must prove that Manney's search was unreasonable by a preponderance of the evidence. Seventh Circuit Pattern Civil Jury Instruction 1.27. After its hearing, the FPC was bound to assess whether there was "just cause" for Manney's discharge. Wis. Stat. § 62.13(5)(em). One of the seven standards it applied (see supra pg. 924-25) was "[w]hether [Flynn] discovered substantial evidence that the [Manney] violated the [MPD search policy]." Id. The Court concludes that the need for "substantial" evidence was at least as burdensome as establishing the unreasonableness of the search as "more probably true than not true." Seventh Circuit Pattern Civil Jury Instruction 1.27.
As to the fifth factor, neither public policy nor Manney's circumstances make the application of issue preclusion unfair in this instance. Gentilli explained the policy basis for making Manney's statutory appeal final at the circuit court level:
Gentilli, 680 N.W.2d at 339. The FPC hearing gave Manney a fair hearing, allowing him to mount his defense as he chose (save for qualified immunity). His incentive to fully and fairly litigate the reasonableness of his search could scarcely have been greater, as he was seeking to continue his
In sum, it is fundamentally fair to apply issue preclusion on the reasonableness of Manney's search of Hamilton. That issue was fully litigated in the Discharge Proceedings and was resolved against Manney in a final judgment. Allowing Manney to re-litigate the issue here threatens inconsistency between the Judgment and the outcome of Plaintiffs' unreasonable search claim in this case.
Defendants' only remaining argument is that the entirety of the Discharge Proceedings are inadmissible in this matter as a subsequent remedial measure. Federal Rule of Evidence ("FRE") 407 prohibits admission of evidence of "measures [] taken that would have made an earlier injury or harm less likely to occur" to prove negligence or culpable conduct: in this case, using the Discharge Proceedings to prove the unreasonableness of Manney's search. Fed. R. Evid. 407. Defendants' theory fails for misapprehension of the "remedial measure" at issue. Plaintiffs' request for issue preclusion is based the Discharge Proceeding findings that Manney's search was unreasonable. This is not itself a remedial measure; the remedial measure was Manney's termination.
An excellent explanation of this issue is given by Judge Simon from the District of Oregon. Aranda v. City of McMinnville, 942 F.Supp.2d 1096 (D. Or. 2013). In Aranda, the court was faced with a similar scenario: a police department conducted a "use of force review" after an officer allegedly used excessive force on an arrestee. Id. at 1100, 1102. The defendants sought to strike that evidence from the summary judgment record as violating, inter alia, FRE 407. Id. at 1102. The court described the applicable law:
Id. at 1103-04; see also In re Chicago Flood Litig., No. 93-C-1214, 1995 WL 437501, at *5 (N.D. Ill. July 21, 1995) ("City statements regarding the actions of its employees are not themselves remedial; instead, they merely explain why the city elected to pursue disciplinary action. The court will consider a request by the city to redact references to disciplinary actions taken against particular employees from any statement offered by plaintiffs."); see Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 430-31 (5th Cir. 2006) ("[B]y themselves, post-accident investigations would not make the event `less likely to occur;' only the actual implemented changes make it so.").
The Court concurs in Aranda's assessment of FRE 407 in this context. Put another way, the fact that Manney was fired is irrelevant to the reasonableness of his search. The remedial act—firing Manney—is not inextricably intertwined with the investigation leading to that act, namely the determination in the Discharge Proceedings that his search was unreasonable. Flynn and the FPC decided Manney's "liability," that he violated the MPD search policy by unreasonably searching Hamilton, first. They then determined, using post-incident events having no bearing on "liability," that his punishment should be discharge from the MPD. Per the text of FRE 407, Manney's firing "would have made [Hamilton's] injury . . . less likely to occur," but the individual determination that he lacked reasonable suspicion in this case would not. Fed. R. Evid. 407.
Finally, permitting admission of this evidence comports with the spirit of FRE 407. Its "major purpose is to avoid discouraging injurers from taking such remedial measures as the accident may suggest would be appropriate to reduce the likelihood of future accidents—and discouraged they would be if they were penalized in court by having the measures treated as a confession of fault in not having been taken earlier." Kaczmarek v. Allied Chem. Corp., 836 F.2d 1055, 1060 (7th Cir. 1987). Defendants characterize the issue as "the City of Milwaukee [being] forced to incur civil liability as a direct result of the attempt by Chief Flynn and the FPC to prevent future harm to the public." (Docket
In light of the foregoing, Plaintiffs' motion for summary judgment must be granted.
Defendants seek judgment in their favor on each of Plaintiffs' claims and request dismissal of this lawsuit in its entirety.
The Court begins with a timeline of the relevant events, and concludes with a discussion of Manney's relevant training and experience. The Court discusses the parties' disputes where appropriate.
On April 30, 2014, at about 1:54 p.m., Officers Robert Fitchett ("Fitchett") and Andrew Fuerte ("Fuerte") received a call to conduct a welfare check on someone in Red Arrow Park (the "Park").
Shortly after driving away, they received a request to return to the Park. A Starbucks employee, working at a store in the Park, had made another call about a person in the Park.
Manney, a thirteen-year veteran of the MPD, was also patrolling downtown Milwaukee that day. His patrol area included the Park. At about 3:25 p.m., Manney was finishing a service call and checked his phone for messages. He had a voicemail from desk sergeant Keith Cameron ("Cameron"), who directed Manney to check on an issue in the Park. Cameron's voicemail stated:
(Docket #61-2 at 13:17-14:1).
Manney was familiar with that location and the employees who worked there, and he maintains that those employees would only call the police if they felt the situation was concerning for them. Manney had previously responded to calls of disorderly, aggressive homeless persons in the Park. He suspected the same might be true of this situation, and thus described it as a "trouble with suspect" call.
Manney decided to go to the Park. He parked his squad car south of the park and walked north towards the Starbucks trailer. Manney was dressed in his full MPD uniform and was armed with a wooden baton and a semi-automatic pistol. As he approached the trailer, Manney observed Hamilton lying on his back on the concrete pathway. Manney believed the concrete would be a cold surface to lie on given the 50 degree temperature that day, but Plaintiffs deny that he knew whether the concrete was cold. Hamilton was lying on a blanket near the Red Arrow monument in the center of the park. He was flat on his back, save for his left knee being bent upward and twitching, and his palms were open and facing upward. Within arm's reach of Hamilton was a backpack. Hamilton's eyes were closed and Manney assumed he was sleeping.
Given Hamilton's appearance and location, Manney believed he might be homeless. Manney knew that homeless people often have trouble sleeping outside because they are vulnerable to criminals, so they try to sleep in or near businesses to gain some measure of protection. Manney further suspected that Hamilton was suffering from mental illness or the effects of alcohol or drugs, in light of his leg twitch and unusual posture. Manney concluded that Hamilton was likely the person referenced in Cameron's voicemail. Manney characterizes Hamilton's conduct as "disorderly," while Plaintiffs deny he had or was currently engaging in behavior which would violate a disorderly conduct law. Manney counters that sleeping in a public park is a county ordinance violation.
Manney felt it was best to contact the Starbucks employees first. As he approached the trailer, he came within three or four feet of Hamilton's head. When he did, Hamilton opened his eyes. Manney states that Hamilton had a dazed, unfocused look, while Plaintiffs maintain that Manney had no idea what Hamilton was thinking when he opened his eyes or whether his eyes were focused. Hamilton's reaction caused Manney to again suspect mental illness or the involvement of drugs or alcohol. Plaintiffs deny this, attributing Hamilton's reaction to having been bothered by an MPD officer for the third time in the past hour.
Though Manney did not see Hamilton in crisis or behaving violently, Manney felt he should check on him anyway. Plaintiffs question this desire to "check" on Hamilton, considering that Manney characterized
Manney bent over and said "[h]ey partner. Milwaukee police here. You need to stand up. We need to have a quick chat." (Docket #52 at 7). He was still about three feet from Hamilton at the time. Manney claims he was being friendly, though Flynn's later investigation determined that Manney had approached Hamilton as a criminal suspect. Manney admits that his statement was an order to Hamilton to stand up. (Docket #61-3 at 139:3-16). Manney, in any event, believed that his order was lawful. He does not dispute that he was detaining Hamilton at that point. (Docket #84 at 1). Hamilton then stood up without assistance.
The parties disagree on the next sequence. Manney claims that Hamilton, of his own accord, turned his back on Manney and raised his arms straight out from his sides. To Manney, this suggested that Hamilton was familiar with police contact and pat-down searches. Plaintiffs cite Manney's contrary statement to the Police Administration Bureau given that same day (the "PAB Statement"). As memorialized in an MPD incident report, Manney described that Hamilton stood up and turned away from him. (Docket #61-7 at 4). Manney then approached Hamilton and told him he was going to do a pat-down search. Id. Manney reached under Hamilton's arms to raise them and Hamilton apparently did not resist. Id. At his deposition, Manney disputed the exact content of the report, but admitted that "technically my arm would have lifted [Hamilton's] a little bit, but it was for me to get my hand so I could pat his chest[.]" (Docket #61-3 at 146:15-152:24). The parties further disagree on whether Manney had reasonable suspicion to search Hamilton, but because that issue has already been resolved in Plaintiffs' favor, the Court will not address their positions in detail.
Manney moved in to complete the pat-down search. He reached his arm around Hamilton, under his arms, to feel Hamilton's right breast and left side near the waistline. Manney felt this contact would show whether Hamilton was tense or his heartbeat was elevated. The touching reveled that neither proposition was true. As he first touched Hamilton, Manney asked Hamilton for his name, and Manney claims he said it was "something like `Terrell.'" (Docket #52 at 9). Manney says he was attempting to build rapport with Hamilton. Plaintiffs assert that Manney's touching was meant only to complete his desired pat-down search, not build rapport. Further, Hamilton had provided his true name to other officers earlier that day, so it is unlikely that he intentionally misidentified himself to Manney (whom he did not know); to Plaintiffs, it is more probable that Manney simply misheard Hamilton.
Manney's usual pat-down method was to begin with the person's waistline. Before moving his hands from their locations on Hamilton's chest and side, Manney asked Hamilton if he possessed anything which could injure Manney. He stated words to the effect of ""Hey Terrell, you don't have
Hamilton was strong enough to keep Manney's arms pinned. Manney pulled and twisted his body in an effort to free himself. He believes he felt "something hard" in Hamilton's waistline during this struggle, and thought that it might be a gun that Hamilton would reach for. Id. at 10. This was later shown to be impossible; Hamilton did not have a gun or "hard" object in his waistline area. Throughout this time, Manney said things like "relax," "stop," "buddy, it's not worth it," and "Milwaukee police, stop." Id.
Manney eventually freed his forearms from Hamilton's grasp. Here again the parties' stories diverge. Manney claims that he backed away from Hamilton. According to Manney, Hamilton spun around and advanced toward him, fists clenched. Hamilton's eyes were completely dilated and unblinking. Manney thought Hamilton was about to hit him with his fists. He continued to tell Hamilton to stop while stepping backward. Hamilton did not respond to the commands and looked at Manney with "a thousand yard stare." Id. at 11. Manney felt that Hamilton was looking right through him and did not comprehend what he was being told. Plaintiffs deny Manney's story, citing witness accounts who saw Manney chasing Hamilton in the Park like the two were playing a game. Hamilton was "making a figure eight" and "zigzagging" like a child. (Docket #61-13 at 12:13-20; Docket #61-14 at 72:18-25). They found the situation humorous. (Docket #61-13 at 12:13-20; Docket #61-14 at 7:18-8:3).
Under either approach to events, Manney and Hamilton eventually came back to close physical proximity. Manney claims that Hamilton punched him several times in the head. Plaintiffs counter that Manney denied head trauma at the emergency room immediately after the incident, and photos of his injuries taken at the hospital are not consistent with being repeatedly punched in the head.
Manney pushed Hamilton and backed away. He knew that Hamilton was much stronger than him, given the beginning of the violent portion of their encounter. In Manney's view, he was not confident he could win a fist fight with Hamilton, and needed to get the situation under control, so he retrieved his baton. Plaintiffs again counter that a witness saw Manney strike first and that the evidence does not support Manney's claim of being struck repeatedly by Hamilton.
The parties' account of events separates for a final time. Manney claims that Hamilton again refused to follow his directions. Manney was forced to hit Hamilton with his baton. Hamilton trapped the baton with his arm and torso and wrenched it out of Manney's hands. Once Hamilton had the baton, Manney punched him again in the jaw, but the strike had no effect. Hamilton then advanced on Manney, striking him
Plaintiffs' paint a different picture of the final moments of the encounter. They stress that Manney was still chasing Hamilton when he took out his baton. Witnesses state that Manney held Hamilton and struck him repeatedly with the baton. Plaintiffs admit that Hamilton eventually got the baton away from Manney. However, they again cite Manney's lack of injury to undermine his assertion that Hamilton used it to hit Manney's head. Witnesses variously saw Hamilton holding the baton in a defensive posture, or they saw him swing it at Manney but the strike failed to connect.
As to the shooting itself, the witnesses disagree. One saw Manney push away from Hamilton, then Hamilton took a few steps towards him, and Manney began shooting. At the time, the witness observed Hamilton holding the baton above his head and waving it around, taunting Manney to come get it. Others did not see Hamilton advance on Manney. They agree that Manney and Hamilton were at least ten feet apart when Manney started shooting. They also remember hearing the events differently; one heard nothing from Manney, while another thought he said "[s]o you want to fight?" to Hamilton. (Docket #61-21 at 18:6-8).
Plaintiffs further question Manney's memory those moments. In his affidavit, Manney says he believed he fired five times, but later learned that he had emptied the gun's magazine. (Docket #52 at 14). In his deposition, he and Plaintiffs' counsel argued about his precise memory of each shot. (Docket #61-4 at 228:21-234:2). Witnesses state that Hamilton was either falling or already down while Manney continued firing.
Defendants do not dispute that Flynn and the FPC both set the City's policies with respect to police officer discipline. The City (by its designee) testified that MPD officers regularly encounter people with mental illness or who are in a crisis situation. The City further acknowledged that Crisis Intervention Team ("CIT") training was meant to improve officer responses to such people. Another purpose was to reduce incidents of use of force, and use of excessive force, by MPD officers. CIT training also taught de-escalation skills, which would assist an officer in appearing as a friend to a mentally ill person, rather than as a police officer. Role-playing scenarios are also used to reinforce the principle being taught. The MPD began CIT training in 2005.
In addition to CIT training, the MPD provides training to its officers on, inter alia, "defensive and arrest tactics, use of force, encountering people who are mentally ill, encountering people who are in crisis, and encountering people who are homeless." (Docket #59 at 82). MPD officers are also trained on recognizing when subjects have symptoms of mental illness, drug or alcohol dependency, or other disabilities. The MPD instructs that officers are entitled to check on people who appear to have these problems for their welfare and to connect them to appropriate support services. MPD training includes materials published by the Wisconsin Department of Justice Law Enforcement Standards Board ("WLESB"). Defendants aver that the MPD's training is consistent with WLESB standards.
Manney claims that he received such training. Plaintiffs deny that he received any specialized training on dealing with the mentally ill. He admitted as much in his deposition. Though Manney did receive training on identifying persons in crisis situations, including those with mental illness crises, he cannot recall the content of that training. Manney's only recollection was that the training occurred in 2008 and was taught by a female instructor. Plaintiffs further note that Manney has not received training on various topics related to mental health intervention.
Manney has not received CIT training from the MPD or completed any mental health training using role-playing exercises. Plaintiffs' expert on CIT training, Dr. Douglas Smith ("Smith"), opines that had Manney received such training, the outcome of the Hamilton incident may have been different. See (Docket #61-32 at 6). Defendants counter that Karen Dubis ("Dubis"), a former coordinator of the MPD's CIT training, disagrees with Smith's conclusion. See (Docket #80). Dubis also states that CIT training is not mandated by the WLESB, and was made
Manney further asserts that he received training on dealing with homeless people. Plaintiffs similarly dispute the merits of this training. He was given no specialized training on dealing with homeless people. The entirety of his training on the issue was a ten to fifteen minute presentation where he learned about the MPD's Homeless Outreach Team. The presentation was meant for that team to "say that this is who we are as opposed to actually train." (Docket #61-3 at 54:23-55:1).
With respect to encountering people in the field, MPD officers are trained that they can conduct a Terry stop or field interview based on their reasonable suspicion that a person has committed, is committing, or will commit a crime. See Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt County, 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). The factors they should use to assess that suspicion include the subject's appearance, demeanor, actions, time of day, the appropriateness of their location, whether they are carrying a suspicious item or their clothing has bulges, and their proximity to an alleged crime scene.
MPD officers also receive training on pat-down searches. As noted above, such searches may be conducted if the officer reasonably suspects that they or another person are in danger from the subject. As with Terry stops, the officer must also be able to articulate facts leading them to believe that the person is involved in criminal activity. Officers are also trained that consent is a valid basis for a search, provided that it is a "clear and voluntary expression" of consent. (Docket #53-8 at 1).
Regarding use of force, the MPD trains officers to apply their training, experience, and common sense to a situation and respond as events unfold. When subjects become violent, officers are told they have the authority to employ defensive force tactics. Specifically, if the officer is struck by a person, the officer may either respond with the same level of force, or higher if the officer feels it is necessary for them to gain control of the situation. As relevant here, if an officer is struck with fists, he may either use his fists or draw his baton. Officers are trained that they may only use deadly force when it would be reasonable to prevent great bodily harm or death to themselves or others.
At the time the instant summary judgment motions were filed, Plaintiffs advanced the following substantive claims:
(Docket #1 at 37-45 and #43).
The Fourth Amendment imposes a limited burden on police officers who wish to briefly detain a person to investigate criminal activity. It requires that the officer have "reasonable suspicion based on articulable facts that a crime is about to be or has been committed." Williams, 731 F.3d at 683. Reasonable suspicion is less than the probable cause required to obtain a warrant to seize a person, but more than a mere hunch. Id. In analyzing reasonable suspicion, a court "must examine the totality of the circumstances in the situation at hand, in light of the individual officers' own training and experience, and should uphold the stop if it finds that `the detaining officer ha[d] a "particularized and objective basis" for suspecting legal wrongdoing.'" Id. at 683-84 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)).
Viewing the evidence in a light most favorable to Plaintiffs, and making all reasonable inferences in their favor, a reasonable jury could conclude that Manney detained Hamilton without reasonable suspicion that he committed any crime. The information at Manney's disposal which directly concerned Hamilton was limited. Cameron's voicemail described Hamilton's appearance and stated that he was sleeping near the Starbucks trailer. When Manney arrived at the Park, he saw Hamilton lying on a concrete path with his eyes closed, knee bent and twitching. On Manney's way to discuss the matter with the Starbucks employees, Hamilton opened his eyes and the two began their interaction. Manney's first words to Hamilton were an order to stand up, at which point Hamilton's detention began.
Prior to those words, none of the facts available to Manney demonstrated an individualized suspicion connecting Hamilton to a crime. Defendants contend that Manney could have reasonably believed that Hamilton had been criminally disorderly, based on Kraemer's call, his prior knowledge of the reliability of the Starbucks employees, and Hamilton's appearance and location in the Park. However, Manney had not heard the content of Kraemer's call prior to detaining Manney, nor had he spoken with anyone, such as Cameron, Fitchett, Fuerte, or a Starbucks employee. Thus, any belief in the reliability of Kraemer's complaint was not the individualized suspicion required when police officers seize a person. City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Instead, Manney's only source of suspicion directly related to Hamilton was Cameron's voicemail and Manney's visual observation upon arrival at the Park. Manney admits that the voicemail does not suggest disorderly conduct. (Docket #61-3 at 90:2-6). Defendants do not suggest, and the Court does not find, any suspicion of disorderly conduct from Manney's perception of Hamilton lying down in the Park.
Defendants' factual briefing suggests that Hamilton may have also violated a Milwaukee County ordinance by sleeping in the Park. (Docket #89 at 16-17). This argument fails for three reasons. First, Defendants make no corresponding legal argument in the section of their opening brief dedicated to this issue. (Docket #50 at 26-30). Second, assuming the position was properly presented, Hamilton's conduct did not constitute a crime. See Milwaukee County Code of Ordinances §§ 47.25 (prohibiting sleeping in parks)
In the alternative to suspicion of disorderly conduct, Defendants posit that Manney's action was not a detention, but instead a mere welfare check pursuant to his "community caretaker" function. Wisconsin recognizes that police officers "may exercise two types of functions: law enforcement functions and community caretaker functions." State v. Pinkard, 327 Wis.2d 346, 785 N.W.2d 592, 598 (2010) (citing Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). Wisconsin maintains an exception to the Fourth Amendment's prohibition on warrantless searches and seizures when a police officer is "serving as a community caretaker to protect persons and property." Id. at 597. An officer is a "community caretaker" when he "discovers a member of the public who is in need of assistance." Id. at 598. The officer's law enforcement role need not be entirely absent when engaging in community care; to claim the exception, the officer need only "articulate[] an objectively reasonable basis under the totality of the circumstances for the community caretaker function[.]" State v. Kramer, 315 Wis.2d 414, 759 N.W.2d 598, 609 (2009). If a court finds that the community caretaker function is properly invoked, it balances various considerations to determine whether the police conduct was reasonable. Id. at 611.
A reasonable jury could find that Manney was not engaged in a community caretaker function in dealing with Hamilton. As noted above, Hamilton had done nothing unlawful up to the point of his detention. Without knowing that Hamilton had caused any trouble, Manney characterized his intervention in the Park as a "trouble with suspect" call. The jury could potentially infer that this characterization showed preliminary bias against Hamilton, in light of Cameron's mention of a homeless person and Kraemer's recollection of an off-color comment by Manney regarding homeless people. Further, upon contacting Hamilton, Manney did not ask Hamilton how he was doing, but instead immediately ordered him to stand and initiated a pat-down search. This suggests that Manney had not "discover[ed] a member of the public who is in need of assistance." Pinkard, 785 N.W.2d at 598.
Because Plaintiffs' motion for summary judgment was granted, their unreasonable search claim is no longer disputable. Thus, the Court need not address the related portions of Defendants' motion.
When police officers use force against citizens in carrying out their duties, the Fourth Amendment requires that the force used be reasonable. Weinmann v. McClone, 787 F.3d 444, 448-49 (7th Cir. 2015). Reasonableness is a fact-intensive inquiry in light of the totality of the circumstances, including "the severity of the crime at issue, whether the person posed an immediate threat to the safety of the officers or others, and whether the person was actively resisting the officers." Williams v. Indiana State Police Dep't, 797 F.3d 468, 472-73 (7th Cir. 2015). The standard also accounts for the fluidity and rapidity of use-of-force situations, and does not permit evaluation of the force used based on hindsight. Id. at 473. The Seventh Circuit instructs that "[a]n officer's use of force is unreasonable if in light of all those circumstances at the time of the seizure, the officer used greater force than was reasonably necessary to effectuate the seizure." Id. With respect to deadly force in particular, "[t]he Supreme Court further has counseled that it is reasonable for a law enforcement officer to use deadly force if an objectively reasonable officer in the same circumstances would conclude that the suspect posed a threat of death or serious physical injury to the officer or to others." Marion v. City of Corydon, Ind., 559 F.3d 700, 705 (7th Cir. 2009).
Plaintiffs' brief appears to raise two species of excessive force. First, they contend that the entirety of Manney's use of force was unreasonable. (Docket # 88 at 18-23). Second, assuming this was not true, Plaintiffs maintain that Manney applied excessive force when he continued to shoot Hamilton after he was no longer a threat. Id. at 16-18.
As to Manney's overall use of force, the facts and inferences in Plaintiffs' favor suggest the following timeline. Manney initiated physical contact with Hamilton in his attempt to complete a pat-down search. Before that time, Hamilton had been non-violent. Hamilton then pinned Manney's arms to his sides and, after a struggle, the two separated. However, rather than turn to face Manney and advance at him menacingly, Hamilton ran away from Manney like a child playing a game, while Manney chased him. The two eventually returned to close quarters. Manney's assertion of head strikes by Hamilton is undermined by his apparent lack of corresponding injury during the emergency room visit later that day. Manney, however, admits that he punched Hamilton. Manney then pulled out his baton. He struck Hamilton repeatedly with the baton until Hamilton pulled it from his hands. Again, though Manney believes Hamilton then hit him with the baton, he did not complain of head trauma at the hospital or bear related injuries. Finally, immediately prior to the shooting, Manney and Hamilton were at least ten feet apart. Hamilton was standing still and either holding the baton in a defensive position across his chest, or waving
Under this version of the facts, it was unreasonable for Manney to escalate his use of force from fists, to his baton, to his gun. Hamilton's crime, if any, was not serious. Hamilton's only violent act was to trap Manney's arms for a few moments. Afterwards, Hamilton began running away, which did not suggest that he posed an immediate threat to Manney's or another's safety. In fact, Manney exacerbated the danger by chasing Hamilton and beating him with his fists and baton. Manney's use of deadly force was also unreasonable. At the time he shot Hamilton, the two were ten feet apart. Hamilton was not advancing toward him or threatening him with the baton. This scenario did not present an imminent danger of death or great bodily harm to anyone. While it is true that a suspect's possession of a weapon makes using force more reasonable, the suspect must actually threaten someone with the weapon. See Bell v. Irwin, 321 F.3d 637, 639 (7th Cir. 2003) ("Police may use ... deadly force if the suspect poses a threat of serious physical harm, either to the officer or to others. [I]f the suspect threatens the officer with a weapon that risk has been established.") (citation and quotations omitted). Though Hamilton had Manney's baton when the shooting started, he did not wield it in a threatening manner.
With respect to the shooting itself, Manney's testimony is not clear regarding how many shots he remembered firing. This calls into question his memory of the entire sequence. Further, Hamilton continued to remain still while being shot, save for falling onto the ground. At least a few of the shots occurred after Hamilton was falling or had already hit the ground. An officer cannot continue to apply deadly force once the threat of harm has passed. Scott v. Edinburg, 346 F.3d 752, 757 (7th Cir. 2003). Any shots which occurred during or after Hamilton's fall would violate that rule and remove Manney's privilege to use deadly force.
Of course, the jury may not find these precise facts upon their review of the evidence and witness testimony. In particular, almost all of the witnesses not only contradict each other in some manner, but even contradict their own prior statements (including Manney himself). The wide gulf between the parties' sequence of events on April 30, 2014 is for the jury to resolve, not the Court.
In fact, Defendants' arguments reinforce rather than detract from these disputes. In their reply briefing, Defendants cite a number of witness accounts which support various aspects of Manney's story. (Docket # 78 at 11-18). They also question the reliability of the witness testimony cited by Plaintiffs. Id. Initially, the Court notes that Defendants' statement of facts never mentions these witnesses, instead relying almost entirely on Manney's affidavit testimony. Thus, Defendants should be precluded from raising that evidence now. See Hernandez v. Cook County Sheriff's Office, 634 F.3d 906, 913-14 (7th Cir. 2011); Kenall Mfg. Co. v. H.E. Williams, Inc., No. 09-C-1284, 2012 WL 4434370 at *3 (N.D. Ill. Sept. 24, 2012) ("[A]rguments and evidence that could have been raised in the opening brief but are first raised in a reply brief are generally deemed waived.") (citing Judge v. Quinn, 612 F.3d 537, 542 (7th Cir. 2010)).
Defendants maintain that the unlawful stop and pat-down search did not cause Hamilton's death, and without a causal link to the harm alleged, those claims must be dismissed. Like any civil action, those pursued under Section 1983 require a plaintiff to show causation. Whitlock v. Brueggemann, 682 F.3d 567, 582 (7th Cir. 2012). Causation is further divided into two elements: 1) but-for causation, "i.e., the injury would not have occurred absent the conduct," and 2) proximate causation, "i.e., the injury is of a type that a reasonable person would see as a likely result of his or her conduct." Id.
Defendants' argument goes to the second element, proximate cause. The causal chain between an unlawful act and the injury complained-of may be broken by an intervening or superseding cause. Shick v. Ill. Dep't of Human Servs., 307 F.3d 605, 615 (7th Cir. 2002). Defendants contend that Hamilton himself was the intervening cause; his attacks on Manney are what precipitated Manney shooting him, not the earlier stop or search. To make this determination, the Court weighs a number of factors, including the nature of the intervening force, whether the resulting harm is different than what was expected prior to the intervention, whether it was normal to expect such intervention, and whether the intervention was wrongful. See Restatement (Second) of Torts § 442 (1965).
Courts have found broken causation in scenarios similar to this one. In Johnson, a police officer approached a suspect who was "standing in the street, naked, high on PCP, and yelling and flailing his arms." Johnson v. City of Philadelphia, 837 F.3d 343, 345 (3rd Cir. 2016). This interaction did not go well; the suspect slammed the officer into multiple cars and hit him in the head. Id. at 346-48. When the suspect tried to take the officer's gun, the officer shot and killed him. Id. at 346. The plaintiff argued that the officer caused the suspect's death by unreasonably approaching an obviously disturbed man alone and without attempting to de-escalate the situation. Id. at 350-51. The court held that the suspect's "violent, precipitate, and illegal attack on Officer Dempsey severed any causal connection[.] ... Whatever harms we may expect to ordinarily flow from an officer's failure to await backup when confronted with a mentally disturbed individual, they do not include the inevitability that the officer will be rushed, choked, slammed into vehicles, and forcibly dispossessed of his service weapon." Id. at 352; see also Estate of Sowards v. City of Trenton, 125 Fed.Appx. 31, 42 (6th Cir. 2005) ("Sowards's own conduct of pointing the handgun toward the officers was the intervening or superseding cause that set in motion the events that ultimately led to his death," not the officers' earlier warrantless entry into his home.); James v. Chavez, 511 Fed.Appx. 742, 750 (10th Cir. 2013) (no proximate causation between officers' unlawful entry into the suspect's home and his death, when he attempted to stab an officer who approached him).
With these principles in mind, the Court cannot agree with Defendants that no reasonable jury could find causation between Manney's stop and search and Hamilton's death. Here again, Defendants' arguments ignore the standard of review. Under their construction of the facts, Hamilton moved aggressively at Manney, hit him repeatedly with his fists and the baton, and in the final moments of the encounter, appeared to charge at Manney with the baton poised for a potentially deadly blow. Clearly, those circumstances would defeat proximate causation in light of the precedent cited above. However, the Court is constrained to view the facts in Plaintiffs' favor. The timeline of events, described in Part 4.2.3 above, shows that other than clamping his arms down on Manney's and taking the baton away, Hamilton was not aggressive. A jury could conclude that Hamilton's actions were not substantial enough to sever the causal chain between the beginning and end of the encounter.
Johnson, cited by Defendants, provides additional and particularly apt instruction for this case. Immediately after determining that proximate causation was broken by the suspect's crazed attack, the court commented on the limitations of its finding:
Johnson, 837 F.3d at 352-53.
Defendants' final argument in opposition to the claims against Manney is qualified immunity. That doctrine protects government officials from civil liability when they perform discretionary functions "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, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). "Put simply," says the Supreme Court, "qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" Mullenix v. Luna, ___ U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Once the defense is raised, the plaintiff bears the burden to defeat it. Weinmann, 787 F.3d at 450.
To defeat an assertion of qualified immunity, the plaintiff must first proffer facts which, if believed, amount to an actual violation of his constitutional rights. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Easterling v. Pollard, 528 Fed.Appx. 653, 656 (7th Cir. 2013). As discussed above, Plaintiffs have achieved this. Next, the plaintiff must show that the violation of his constitutional rights was "clearly established under applicable law at the time and under the circumstances that the defendant official acted." Easterling, 528 Fed.Appx. at 656 (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). A right is clearly established when its contours are "sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (internal quotation marks and alterations omitted). Courts should "not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). The Supreme Court recently emphasized that courts must not "`define clearly established law at a high level of generality.'" Id. (quoting al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074). The inquiry should be focused on particular conduct undertaken in particular situations. Id. Alternatively, the plaintiff may satisfy this element "by 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." Findlay v. Lendermon, 722 F.3d 895,
The qualified immunity defense does not protect Manney at this stage of the litigation. As Defendants have done throughout their briefing, they assume albeit incorrectly, that the Court will accept their version of events. The Court must continue to construe the evidence in Plaintiffs' favor when assessing qualified immunity. Mordi v. Zeigler, 770 F.3d 1161, 1164 (7th Cir. 2014) ("The court cannot resolve disputed issues of fact when it addresses [whether a constitutional violation occurred] because the ordinary rules governing summary judgment apply in that situation."). In keeping with the most recent authority from the Supreme Court, this Court must apply that construction of the facts to define the relevant constitutional right and tailor it to this case. See Mullenix, 136 S.Ct. at 308. Here, this process results in the following questions. Could Manney have reasonably believed that the following were consistent with Hamilton's Fourth Amendment rights:
The answer to each question is no. Hamilton's right to be free from suspicionless detentions and searches was established by Terry nearly fifty years ago. Terry, 392 U.S. at 17-31, 88 S.Ct. 1868. As the Seventh Circuit noted in Williams, "[i]t is well-established—and has been since long before the shooting at issue here—that a person has a right not to be seized through the use of deadly force unless he puts another person (including a police officer) in imminent danger or he is actively resisting arrest and the circumstances warrant that degree of force." Williams, 797 F.3d at 484 (citing Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Thus, Manney's use of force was proscribed at least thirty years ago. Though Plaintiffs do not make the argument, Manney's force could also be considered "so plainly excessive that, as an objective matter, [Manney] would have been on notice that [he was] violating the Fourth Amendment." Findlay, 722 F.3d at 899.
Given this controlling precedent, and an assessment of the relevant questions in accordance with the standard of review, it was "beyond debate" at the time Manney acted that his conduct violated Hamilton's Fourth Amendment rights. al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. After the jury determines the ultimate facts underlying the defense, however, Manney may revisit it.
As noted above, only one Monell claim remains. As the Supreme Court held in the eponymous case, local government entities, such as municipalities and counties, cannot be held vicariously liable for constitutional violations committed by their employees. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such entities can, nevertheless, be liable under Section 1983 if "the unconstitutional act complained of is caused by: (1) an official policy adopted and promulgated by its officers; (2) a governmental practice or custom that, although not officially authorized,
Plaintiffs allege that the City failed to appropriately train its police officers with respect to "recurring situations of encountering individuals suffering from mental illness and/or experiencing a crisis situation[.]" (Docket # 43). The City will bear liability for its relevant policies if those policies caused the unconstitutional harm Hamilton suffered, or in other words, if the policies were the "moving force" behind the constitutional violation. Thomas, 604 F.3d at 303; Estate of Sims v. County of Bureau, 506 F.3d 509, 514 (7th Cir. 2007). Causation may be shown directly, "by demonstrating that the policy is itself unconstitutional," or indirectly, for instance when "a plaintiff cannot identify any formal policy that is unconstitutional," by pointing to "a series of bad acts creating an inference that municipal officials were aware of and condoned the misconduct of their employees." Minix v. Canarecci, 597 F.3d 824, 832 (7th Cir. 2010) (quotations omitted).
This Court has further direction on failure-to-train claims in particular. For these Monell derivatives, "the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Dunn court explained:
Dunn v. City of Elgin, Ill., 347 F.3d 641, 646 (7th Cir. 2003) (citations omitted). In other words, "`[i]t may happen that ... the need for enhanced training is so obvious, and the inadequacy of training is so likely to result in the violation of constitutional rights, that a jury could reasonably attribute to the policymakers a deliberate indifference to those training needs.'" Tapia v. City of Greenwood, 965 F.2d 336, 338 (7th Cir. 1992) (quoting Erwin v. County of Manitowoc, 872 F.2d 1292, 1298 (7th Cir. 1989)). If that were true, "the failure to offer proper training constitutes a policy for which a city is liable when improper training actually imposes injury." Id. Further "[Plaintiffs] must show that the failure to train reflects a conscious choice among alternatives that evinces a deliberate indifference[.]" Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012).
The facts and reasonable inferences therefrom support Plaintiffs' failure-to-train claim at this stage. The City has agreed that encountering mentally ill people is a recurring issue for MPD officers. It further recognized, twelve years ago, that CIT training was an important tool to address that issue, and that one of the purposes of CIT training was to reduce incidents of excessive force. Manney nevertheless did not receive CIT training or any other specialized training on dealing with the mentally ill. In Plaintiffs' view, this lack of training caused Manney to respond inappropriately to Hamilton, escalating the violence of the situation, and ultimately leading to Hamilton's death.
The appellate court found that a failure-to-train claim did not lie because the need for further training was not obvious. Id. In support, the court cited a number of factors. First, the plaintiff "offered no evidence to indicate that the City failed to adhere to the minimum standards for training police officers under Indiana law." Id. Second, she failed to show that the municipality was somehow required to have written training materials. Id. Third, the municipality offered testimony that its officers were trained on search procedures at state police academies and they received additional training from other sources, including the FBI. Id.
The Court does not read Tapia as broadly as the City suggests. Tapia mentions, in one sentence, that the plaintiff failed to show noncompliance with state training standards. The court then cited further evidence of the officers' training both inside and outside the police academy. Based on this evidence, it concluded that the need for further training was not obvious. If Tapia had desired to create the blanket immunity the City desired, it could have expressly stated that adherence to state training standards alone supported judgment in the municipality's favor. It did not, and in the fifteen years since Tapia was decided, the Court of Appeals has not clarified that Tapia's holding is as the City believes.
The City also argues that causation is lacking. It first cites to Hamilton's "attack" which overrode any connection between Manney's mental illness training and Hamilton's death. Construing the facts in Plaintiffs' favor, a jury could find that no such attack occurred. The City next points to Dubis, its expert on the matter of CIT training, who opines that CIT training would not have made a difference for Manney on April 30, 2014. Her opinion is directly opposed by that of Plaintiffs' expert Dr. Smith. The Court cannot resolve this battle of experts on summary judgment.
The Court finds, then, that Plaintiffs have raised a triable issue as to their Monell claim. This ruling is no comment on the strength of that claim. As Defendants point out, Plaintiffs bear a heavy burden to prove the City's alleged deliberate indifference — its intentional or criminally reckless conduct — to the need for more or better training regarding the mentally ill. The burden is made even
Distilled to its core, Defendants' motion is defective because it bases nearly all of its assertions on Defendants' version of the facts. The Court is required, however, to take the opposite viewpoint. In accordance with the standard of review, these issues of material fact must await the jury's deliberation and verdict in May of this year.
In light of the foregoing, Plaintiffs' motion for summary judgment will be granted, and Defendants' will be denied. The Court will further address other housekeeping matters. Defendants' requests to file an overlong reply brief and include certain misplaced exhibits in their reply are belatedly granted. (Docket # 76 and # 85). The Court has also reviewed the parties' motions related to sealing documents relevant to their summary judgment briefing. (Docket # 62 and # 87). The motions will be granted and denied in part; the parties agree that exhibits L, N, O, P, Q, and R should be unsealed. (Docket # 65, # 67, # 68, # 69, # 70, and # 71, respectively). All other documents currently filed under seal shall remain so for the time being.
Accordingly,
(Docket #55 at 2). Defendants "do not dispute that the quoted language can be found on page 4 of the cited complaint." Id. They go on, however, to offer a nearly nine-page explanation of why Flynn's complaint "was based upon incorrect and incomplete facts." Id. at 2-10. This is not a "concise response" to a statement of fact, as required by this District's Local Rules, nor does it actually dispute the stated fact. See Civil L. R. 56(b)(2)(B). Defendants' statements are best left for legal briefs or their own affirmative statements of fact. Defendants present no such statements of fact, but they do argue the point in their legal brief. See (Docket #56 at 5-7).
