298 F.3d 622 (7th Cir. 2002), 01-1689, Driebel v. City of Milwaukee

Docket Nº:01-1689
Citation:298 F.3d 622
Party Name:Driebel v. City of Milwaukee
Case Date:July 29, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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298 F.3d 622 (7th Cir. 2002)

Robert DRIEBEL, Johnny Sgrignuoli, Stephen Pinchard, and Brett Huston, Plaintiffs-Appellants,

v.

CITY OF MILWAUKEE, Milwaukee Police Dep't, and Chief of Police Arthur L. Jones, Defendants-Appellees.

No. 01-1689.

United States Court of Appeals, Seventh Circuit

July 29, 2002

Argued Oct. 31, 2001.

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William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for Plaintiffs-Appellants.

Rudolph M. Konrad (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants-Appellees.

Before BAUER, COFFEY and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

Appellants Robert J. Driebel, Johnny C. Sgrignuoli, Stephen Pinchard, and Brett Huston are police officers for the City of Milwaukee Police Department ("MPD" or "the Department"). The officers claim that their Fourth Amendment rights were violated when they were ordered by superior officers to remain on duty or to accompany detectives to the headquarters of the MPD's Internal Affairs Division and answer questions put to them during the course of criminal investigations of their activity while on duty in January and February 1998. The magistrate judge presiding with the consent of the parties, 28 U.S.C. § 636(c), granted the Department's motion for summary judgment. Each of the officers appeal. We affirm the magistrate's

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decision to grant summary judgment in favor of the MPD and against Officers Driebel, Huston, and Pinchard. Driebel was seized based on probable cause and Huston and Pinchard never were seized. We reverse and remand as to Officer Sgrignuoli because we are convinced that a reasonable jury could conclude that he was seized without probable cause.

I.

A.

1.

On February 20, 1998, Officer Driebel was assigned to plainclothes duty during a daytime patrol shift from 7 a.m. to 3 p.m. At approximately 1:15 p.m., the MPD received an emergency call from the principal of Humboldt Park Elementary School in the City of Milwaukee, Wis., alleging that an "older kid" was "across the street bothering kids at the school."

Officer Driebel and his partner, Officer Karla M. Lehmann, were dispatched to the scene and, upon arrival, commenced their investigation with the taking of a statement from the principal. She told them that two or more teenage boys not enrolled in the school' sauntered onto the playground, approached a group of fifth-grade girls and directed foul, vulgar, and obscene words and gestures at them, with the boys grabbing their own genitals and so forth. The principal stated that when she went to the playground to investigate this harassment, the boys darted off across the street and into a house located at 3302 S. Adams St.

After obtaining this information, Driebel and Lehmann returned to their squad car, drove to the referred-to house, and knocked on the front door. No one answered. Driebel and Lehmann returned to the school and interviewed several boys at the playground who reportedly had witnessed the incident. (The boys interviewed were later identified as William Ryan, Craig Wood, Michael Mazur and Sabian Yunct). After taking statements from these four youths, Driebel and Lehmann returned to 3302 S. Adams St. and proceeded to monitor the residence and attempt to stop and interview any persons who might exit the house matching the suspects' descriptions.

After several minutes, two boys matching the descriptions walked out of the rear door of the house and entered into an adjoining alley. Driebel proceeded to follow the youths and pulled his squad car into the alley, and as the boys observed the police vehicle, they took off running in opposite directions. Driebel and Lehmann chose to pursue the boy later identified as Joshua Schmidt. Driebel remained in the squad car, while Lehmann exited the vehicle and chased Schmidt as he ran through several backyards in an attempt to avoid apprehension. After Lehmann lost sight of the boy, Driebel happened to observe him scampering across the playground towards an alley. Driebel drove around the school and down the alley, where he saw Schmidt lying prone on the ground in an attempt to hide from the police. At this point in the chase, Driebel stopped the car, exited the vehicle, and yelled, "Police! Are you tired of all this running shit? Just stop!" Schmidt disregarded Driebel's lawful command and jumped up and vaulted over a fence in a second attempt to elude the pursuing officer. After chasing Schmidt through three or four yards, Driebel grew tired and realized that he was not going to be able to apprehend the fleeing youth. Out of frustration and in an attempt to stop Schmidt, Driebel threw his MPD-issued radio at the boy, inadvertently striking him in the head. Schmidt seemed unfazed; he kept running and neither

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stopped nor fell nor gave any indication of injury. After approximately twenty minutes of additional search activity, Driebel and Lehmann returned to their squad car and drove off without the suspects.

Once the officers had departed, Schmidt reemerged from his hiding place and returned to the playground where Mazur, Ryan, and Wood were still playing basketball. Schmidt at this time complained that he felt dizzy, laid down in the grass, and began to regurgitate. After several minutes, the youths called Wood's father, Robert. Mr. Wood drove to the school, observed Schmidt's injuries, conveyed him to the Second District police station, and proceeded to file an incident report concerning this matter.

2.

Mr. Wood spoke with Sgt. Thomas Doehling, who was assigned to handling citizen's complaints. During an interview, Schmidt informed Doehling that he was hit by something thrown by a police officer, adding that the officer declared, "I'm tired of chasing you, bitch!" before doing so. Mr. Wood reported that he was told by the children that someone who appeared to be a plainclothes officer was observed throwing a brick-like object at Schmidt and striking him from the rear on the head at the base of the skull just above the neckline. Sgt. Doehling—after observing that Schmidt had blood on the back of his head and in his hair, as well as on the collar of his jacket—arranged for an ambulance to transport Schmidt to a nearby hospital for treatment and proceeded with the investigation by soliciting information from the Woods regarding the incident.

Mr. Wood's son, Craig, repeated the statement that he saw someone who he believed to be a police officer chase Schmidt and throw a brick-shaped object in Schmidt's direction. Mr. Wood added that he lived near the Humboldt Park school and was home earlier that afternoon and observed a man and a woman dressed in plain clothes speaking with the boys playing basketball. He further stated that he saw this same man walking around inside the police station and mingling with the other patrolmen on duty. Based on these statements, as well as his knowledge that Driebel had been dispatched to the Humboldt Park area earlier in the afternoon, Doehling suspected that Patrolman Driebel was probably the individual who threw the brick-shaped object.

Upon completing his interview of the Woods, Doehling sought out and located Driebel, whose shift terminated at 3 p.m. Doehling ordered Driebel to "stand by" in the police garage until given further instructions by a superior officer. Driebel complied with the order and commenced a waiting game in the garage for approximately four hours. He received overtime pay for this unusual assignment and retained possession of his I.D. card, badge, and all of his police-issued equipment. No one was assigned to monitor his presence in the garage, and there is no evidence that Driebel was isolated or prevented from communicating with anyone in the garage during this time.

3.

Meanwhile, at about 3:15 p.m., Sgt. Doehling contacted the Internal Affairs Division ("IAD") Criminal Investigation Unit and notified the IAD about the complaint. The matter was referred to Deputy Insp. Dale T. Schunk, who directed Lt. David Bruess to supervise an investigation and determine whether Driebel's conduct constituted a violation of any statutes or ordinances. Pursuant to the MPD's internal rule regarding use-of-force investigations, Schunk informed Chief of Police Arthur L. Jones of the investigation concerning the

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two officers who had chased a juvenile on the street and allegedly "threw a brick" and injured him during the pursuit. Jones ordered Insp. Schunk to report back to him concerning further developments in the investigation.

Bruess found it necessary to assign four other IAD detectives and order that they accompany him to the Humboldt Park area to question any possible witnesses concerning Schmidt's truancy, obscene gestures, and foul language. The detectives spoke to Robert and Craig Wood and to the three children previously seen at the playground—Mazur, Yunct, and Ryan. Bruess directed the detectives to separate the witnesses, take their statements, and investigate the scene of the incident. Robert Wood repeated his earlier statement that he observed a male chasing Schmidt. Wood added that his son, Craig, told him that he saw this same man throw a brick at "a kid." Mazur and Yunct reported that they saw Schmidt being chased by a male who they believed was a police officer. Ryan similarly reported that he saw a male chase Schmidt and throw an object at him; he also heard something hit a house almost instantly after the object was thrown.

Once Det. Kenneth Morrow received this information, he proceeded to examine residences within the 3200 block of South Adams and discovered a dent in the siding of...

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