356 F.3d 740 (7th Cir. 2004), 03-1329, Chortek v. City of Milwaukee

Docket Nº:03-1329.
Citation:356 F.3d 740
Party Name:Steven CHORTEK, Greg Heitz, Jerry Mason, et al., Plaintiffs-Appellants, v. CITY OF MILWAUKEE, Arthur L. Jones and City of Milwaukee Police Department, Defendants-Appellees.
Case Date:January 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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356 F.3d 740 (7th Cir. 2004)

Steven CHORTEK, Greg Heitz, Jerry Mason, et al., Plaintiffs-Appellants,


CITY OF MILWAUKEE, Arthur L. Jones and City of Milwaukee Police Department, Defendants-Appellees.

No. 03-1329.

United States Court of Appeals, Seventh Circuit

January 23, 2004

Argued Sept. 9, 2003.

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[Copyrighted Material Omitted]

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Michael S. Sperling, Milwaukee, WI, for Plaintiffs-Appellants.

Susan E. Lappen, Milwaukee, WI, for Defendants-Appellees.

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Fifteen plaintiffs brought this action under 42 U.S.C. § 1983 against the City of Milwaukee ("the City"), the Milwaukee Police Department ("the MPD"), and the police chief. The plaintiffs alleged that the defendants had violated their constitutional rights when the plaintiffs were arrested for selling tickets in the vicinity of the Bradley Center, Milwaukee's sports and entertainment arena. The defendants moved for summary judgment. After a hearing, the district court granted the motion and dismissed the plaintiffs' claims. The plaintiffs appeal. For the reasons set forth in the following opinion, we affirm the judgment of the district court.



A. Facts

Milwaukee city ordinances prohibit a "direct seller" from "engag[ing] in direct sales on any public way or other public premises," Milw. Mun. Ord. 95-1, and prohibit anyone from "sell[ing] or offer[ing] to sell" tickets on a public street or sidewalk within five hundred feet of the Bradley Center during the time between two hours before and one hour immediately after any scheduled event, id. 105-56(2)(b). The penalty for violation of either of these ordinances is a fine plus the costs of prosecution. See id. 95-1(12), 105-56(3). The plaintiffs were arrested for allegedly violating these ordinances.

1. Bradley Center Initiative 1

In January 2001, the Milwaukee Police Department received complaints from the

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Bradley Center regarding ticket scalpers who bothered arriving fans. Bradley Center representatives believed that the number of regular ticket scalpers was increasing and found that they were unable to handle the problem on their own. In response, the MPD launched an initiative that called for police to arrest and jail every person observed selling tickets in violation of the ordinances. The initiative was designed as an undercover operation. A plainclothes officer who observed a violation would call a uniformed officer, identify the offender and then confirm that the uniformed officer arrested the appropriate individual.

Those arrested were taken to a police vehicle behind the Bradley Center until one-half hour after game time. During that time, a representative from the Bradley Center read a prepared "Notice of Violation and Prohibition from Property" speech. The notice informed those arrested that they were no longer welcome at the Bradley Center and that they would be charged with trespassing if they returned. After the Bradley Center speech, those arrested were taken to the Prisoner Processing Section ("PPS") at the police administration building for booking, processing, citations and release.

Lieutenant Gary Edman, with the approval of Deputy Chief Leslie Barber, made the decision to arrest summarily all offenders, regardless of whether they were "first-time" offenders or "regular" ticket sellers. Lieutenant Edman later testified that on-the-scene citations had been ineffective in deterring violations of the ordinances: "[P]eople were given tickets, released on the scene, and they continued engaging in scalping tickets. And again, they were involved with harassing the fans coming into the Bradley Center." R.27, Ex.F at 37-38. Lieutenant Edman explained: "[T]hat's when we decided to take a more affirmative action as it relates to arresting and detaining people violating the scalping ordinance." Id. at 38. Chief Arthur Jones testified that summary arrest procedures are appropriate under certain circumstances, depending in part on "the number of people we're going to take into custody, the conduct that they're engaged in, and the potential for them to return and engage in that same conduct--or I mean not return, never leave." Id., Ex.E at 20. MPD policy permitted the summary arrest of individuals who committed ordinance violations when, in the discretion of the officer, arrest was necessary. Additionally, MPD policy permitted supervisors to implement a summary arrest procedure for a class of ordinance violations if the supervisor deemed summary arrests to be appropriate for that class of violations. The Bradley Center initiative, as designed by Lieutenant Edman and approved by Deputy Chief Barber, fell within the confines of these MPD policies.

Because the Bradley Center fell within the jurisdiction of Police District 1, those arrested as part of the Bradley Center initiative were subject to the standard processing routine at PPS. Processing at PPS involved a series of procedures related to booking, searches, paperwork and release. After arriving at PPS, the arrestees waited fifteen minutes to one-half hour to have their name, charges and other information entered into the police blotter. An officer then prepared an order for detention, and the arrestee entered the booking room. In the booking room, the arrestee removed outerwear, which was inventoried, and submitted to a thorough search. The arrestee then completed a medical-screening form. After the search, police placed the arrestee in a gender-specific holding cell

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while the paperwork was completed. Although PPS officers performed the search and other booking procedures, the arresting officer had to remain present.

The arresting officer also had to fill out and complete an arrest and detention report (the "ADR"). The ADR required the arresting officer to receive a "want" package, which is a computer teletype processed by the Bureau of Identification. The "want package" lists local, extended state and national outstanding warrants, as well as an individual's criminal record. Processing time for the "want" package typically varies and depends upon the number of requests made to the Bureau of Identification at that time. The ADR usually requires about one-half hour to complete, but it can take longer when an officer arrests more than one person at the same time.

After the shift commander approved the completed ADR, the arrestee was issued a citation. The citations required "a fairly lengthy supplemental narrative on the back." Id., Ex.G at 12. Once a PPS sergeant reviewed the paperwork, the arrestee received his belongings and was released. Supervisors at PPS monitored the progress of the booking process. The length of the processing time was affected by the total number of people being processed at PPS as well as by the number of people for which the arresting officer was responsible. Although efforts were made to expedite processing, the paperwork was "extensive" and "easily" required six to eight hours to complete. Id., Ex.I at 31-33.

2. Arrests and Booking of the Plaintiffs

The fifteen plaintiffs were among the individuals arrested as part of the Bradley Center initiative for selling tickets in violation of the Milwaukee municipal ordinances. The plaintiffs were detained at PPS from approximately three to fourteen and one-half hours while the administrative processing steps were completed. They underwent the procedures previously described. With one exception, the plaintiffs were not allowed to make phone calls during their detention. With one exception, they were released between 11:00 p.m. and 4:00 a.m. 2

The plaintiffs underwent certain treatment they found objectionable. For example, some report that they were required to kneel in the police car, that they were humiliated at being arrested in front of people going to the game, that they were afraid in the holding cell because of other prisoners, and that they suffered anxiety knowing spouses would be concerned about their whereabouts. One testified that he was threatened by an officer with lengthier detention for asking what was taking so much time.

B. District Court Proceedings

The district court granted summary judgment to the defendants. On its own motion, the court denied class certification to the arrestees. It also dismissed claims against the MPD as a non-suable entity under § 1983. On the merits of the arrestees' claims, the district court held that the Eighth and Fourteenth Amendments did not apply. Although the Fourth Amendment applied, the district court found as a matter of law that it was not violated because arrests can be made for ordinance violations; police did not conduct the arrests and detentions in an extraordinary

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manner; and the lengths of the plaintiffs' detentions were reasonable.

The plaintiffs timely appeal the district court's entry of summary judgment on the Fourth Amendment claims.



A. Standard of Review

We review de novo a grant of summary judgment. See Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir. 2001). We view all facts and draw all inferences in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate when there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c).

B. Reasonableness of the Initial Arrests

The plaintiffs submit that their arrests for selling tickets in violation of the Milwaukee municipal ordinances were unconstitutional. Under Wisconsin Statute § 968.07(1)(d), a law enforcement officer may arrest when "there are reasonable grounds to believe that the person is committing or has committed a crime." The plaintiffs do not dispute that the arresting officers had probable cause to believe they violated Milwaukee Municipal Ordinances...

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