123 F.3d 586 (7th Cir. 1997), 96-2628, Estate of Phillips v. City of Milwaukee

Docket Nº:96-2628.
Citation:123 F.3d 586
Party Name:ESTATE OF James PHILLIPS, III, and Raye M. Phillips, Special Administratrix of the Estate of James Phillips, III, and on her own behalf, Plaintiffs-Appellants, v. CITY OF MILWAUKEE, Philip Arreola, Theodore Busch, et al., Defendants-Appellees.
Case Date:August 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 586

123 F.3d 586 (7th Cir. 1997)

ESTATE OF James PHILLIPS, III, and Raye M. Phillips, Special

Administratrix of the Estate of James Phillips,

III, and on her own behalf, Plaintiffs-Appellants,


CITY OF MILWAUKEE, Philip Arreola, Theodore Busch, et al.,


No. 96-2628.

United States Court of Appeals, Seventh Circuit

August 15, 1997

Argued Nov. 4, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

23, 1997.

Page 587

Thomas E. Hayes (argued), Nathaniel D. Rothstein, Ronald C. Shikora, Milwaukee, WI, for Plaintiff-Appellant.

Grant F. Langley, Susan E. Lappen (argued), Office of the City Attorney, Milwaukee, WI, for Defendants-Appellees.

Before BAUER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Milwaukee police officers were called to the Ambassador Hotel on May 6, 1993 to remove James Phillips, III from his room. When the officers arrived, he put up a struggle that escalated until the officers handcuffed Mr. Phillips and placed him face down on the floor. Mr. Phillips then stopped breathing and died the next day. His mother, Raye Phillips, as special administratrix of her son's estate and on her own behalf, brought this suit alleging that the officers used excessive force in seizing her son and that the City of Milwaukee was also liable for having an unconstitutional policy allowing such force and for failing to train its officers properly. The district court granted summary judgment to the defendants. For the reasons given in the following opinion, we affirm.



  1. Facts

    On May 5, 1993, Mr. Phillips was evicted from the Ambassador Hotel by the general

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    manager, Rick Scott. Prior to his eviction, Mr. Phillips had been behaving in a strange and disorderly manner. For example, he had placed furniture in the hallway in front of his room and had thrown a chair out of his window. He also had stuffed his clothes into the bathtub while running the water, thereby overflowing the tub. It was because of Mr. Phillips' disruptive behavior that Scott asked Mr. Phillips to leave the hotel.

    Mr. Phillips initially complied with Scott's request, but he returned the next morning, May 6. With a key he apparently had retained, Mr. Phillips reentered his old room undetected. The head of housekeeping was on duty that morning and went into Mr. Phillips' old room to check the condition of the room's carpeting. When the employee entered the room, she encountered Mr. Phillips, who was naked at the time. She became frightened and ran out of the room. In response, Mr. Phillips attempted to barricade himself in the room by locking and chaining the door. Gary Kassin, a security guard at the hotel, arrived on the scene and tried to coax Mr. Phillips into unlocking the door. Mr. Phillips was uncooperative, and Kassin eventually unlocked the door with a master key and then had to cut the chain on the door.

    When Kassin and James Rice, another hotel employee, entered the room, Mr. Phillips was wearing a trench coat, but was otherwise naked. Kassin testified that Mr. Phillips "was just going nuts" and was shaking "like a leaf." Kassin Dep. at 15. Kassin noticed that Mr. Phillips had thrown the fans that were drying the carpet out of the window and had damaged other property in the room. Drawers were broken; furniture was moved to barricade the door; the sheets were torn off the bed and were soaking wet; the bathroom was in shambles; in short, "the place looked like a disaster area." Id. at 16. Kassin asked Mr. Phillips to put on his pants and called down to the desk to have hotel personnel call the police. Kassin and Rice then sat with Mr. Phillips while they waited for the police to arrive.

    The first Milwaukee police officers on the scene were defendants Dennis Hintz and Mary Riley. The desk clerk at the hotel told the officers about the troubles the hotel had experienced with Mr. Phillips. The officers were informed that Mr. Phillips had been behaving strangely the past two days, that he had been evicted for flooding his room, and that he had just thrown fans out of his window to the parking lot below. The officers proceeded to the third floor where they encountered a security guard who reiterated that Mr. Phillips was behaving in a bizarre fashion. The officers then entered the room. Mr. Phillips was wearing a trench coat, no shirt, and trousers that were about to fall down; he appeared unkempt and soiled and was visibly shaking and sweating. Officer Hintz walked to the window and observed two fans lying in the parking lot. Officer Riley noticed that a framed picture, too large to throw out of the window, had been moved as if Mr. Phillips had attempted to throw it out as well.

    Officer Hintz asked Mr. Phillips what his name was and what was going on, but got no response. The officer told him to pull up his pants, which Mr. Phillips did. Officer Riley then asked several questions of her own, but Mr. Phillips responded only with unintelligible sounds. At that point, one of the hotel employees told the officers to be careful because Mr. Phillips had a ballpoint pen clenched in each hand. Kassin testified that, given Mr. Phillips' size and the manner in which he held the pens, Mr. Phillips could have caused injury to the officers if he had lunged at them with the pens. Officer Hintz feared for his safety and grabbed one of Mr. Phillips' wrists; Officer Riley grabbed the other. Mr. Phillips resisted, and a struggle ensued.

    The struggle, though intense, was not marked by any violent behavior on the part of the police. Mr. Phillips was strong and refused to drop the pens; he struggled to break free of the officers' grasps. For their part, the officers could not pry Mr. Phillips' fingers apart, so the pens remained in Mr. Phillips' clenched fists. As a result, Officer Hintz decided that Mr. Phillips should be placed on the bed to control him without injuring anyone. According to Kassin, the officers were not shouting or being abusive. They were telling Mr. Phillips that everything

    Page 589

    would be fine and that they were just going to take him out of the hotel. It appeared to Kassin that the officers were trying to help Mr. Phillips. Mr. Phillips, on the other hand, became extremely violent when the officers tried to move him over to the bed. He began thrashing his arms and pulling with his shoulders and upper body. As a result, the officers decided to place Mr. Phillips on the floor instead. With the aid of hotel personnel, the officers succeeded in bringing the struggling Mr. Phillips to the floor. Once there, Mr. Phillips became more violent, kicked his feet and tried to bite Officer Riley. The hotel staff held Mr. Phillips' legs while each officer managed to place a pair of handcuffs on each of Mr. Phillips' wrists. Due to the size of Mr. Phillips, the officers connected the handcuffs so that his arms were restrained behind his body by two sets of handcuffs connected in the middle.

    Mr. Phillips continued to struggle and kick violently while on the floor. Officer Riley placed her knee on Mr. Phillips' right shoulder blade to hold him down and to keep him from turning over and kicking. Because of the intensity of Mr. Phillips' struggling, Officer Hintz was certain that Mr. Phillips could have turned himself over absent the pressure Officer Riley was applying. Kassin testified that Officer Riley's knee was "gently sitting on [Mr. Phillips] so he couldn't raise up" for about thirty seconds. Kassin Dep. at 28, 55. Officer Riley estimated that she had her knee on Mr. Phillips' back for about a minute. Kassin recalled further that Officer Riley did not have much of her weight on Mr. Phillips as she almost lost her balance.

    Based on his observations, Officer Hintz was of the opinion that Mr. Phillips needed mental observation at a hospital, not incarceration. He called for a patrol wagon to transport Mr. Phillips to the Milwaukee County Medical Complex. Officer Riley then observed Mr. Phillips reaching in his pockets. Two dinner forks were found in Mr. Phillips' coat pocket and were removed from his possession. As a result of Mr. Phillips' continuing struggle, Officer Hintz decided to call an ambulance. His thought was that it would be safer to transport Mr. Phillips on a stretcher to keep Mr. Phillips from injuring himself.

    At that time, Officer Duarte arrived at the scene as backup. Officer Riley testified that Mr. Phillips was in a face down, handcuffed position for about one minute prior to Officer Duarte's arrival. Officer Duarte held Mr. Phillips' feet to prevent them from kicking. He was asked to call an ambulance by Officer Hintz and did so by radio. A few minutes after the arrival of Officer Duarte, Officer Busch arrived with leg restraints and placed them on Mr. Phillips' ankles, at which time Mr. Phillips' legs were still moving. Kassin estimated that the leg restraints were applied about a minute or so after the handcuffs. Mr. Phillips was not "hog-tied"; that is, the leg restraints and handcuffs were not connected together. After a few minutes, Mr. Phillips began to calm down, and the officers heard the ambulance crew in the hall. Thinking that Mr. Phillips would remain calm if he knew that he was not going to jail, Officer Hintz told Mr. Phillips that an ambulance had arrived to take him to the hospital. Kassin testified that, during the time Mr. Phillips was on the floor, the officers constantly watched him and called his name every twenty or thirty seconds; although on this latter point, Officer Riley could not recall anything being said to Mr. Phillips until Officer Hintz informed Mr. Phillips that the ambulance had arrived.

    The record is unclear as to who determined that Mr. Phillips had stopped breathing. Kassin and several of the officers...

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