Czerniak v. City of Milwaukee
| Decision Date | 13 June 1985 |
| Docket Number | No. 84-C-0259.,84-C-0259. |
| Citation | 611 F. Supp. 182 |
| Parties | Allen CZERNIAK, Ronald Higgins, individually and on behalf of others similarly situated, Plaintiffs, v. CITY OF MILWAUKEE, a municipal corporation of the State of Wisconsin; Harold A. Breier, Chief of Police of the City of Milwaukee Police Department; Richard Heder, Captain of the Vice Squad of the City of Milwaukee Police Department; Milwaukee Police Officer Michael Erdman; and their agents, employees, assistants, successors and all other persons acting in concert with them or at their control, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
James M. Shellow, Milwaukee, Wis., for plaintiffs.
Rudolph M. Konrad, Asst. City Atty., Milwaukee, Wis., for defendants.
This action was initiated on February 24, 1984, when the plaintiffs, both adult residents of the City of Milwaukee, Wisconsin, filed their complaint on their "own behalf and on behalf of all persons who have been arrested and imprisoned by City of Milwaukee police officers for engaging in private, consensual sexual activities in private bookstore booths in the City of Milwaukee, Wisconsin." Plaintiffs' Complaint at 2 (February 24, 1984).1 The specific claim articulated by plaintiff Allen Czerniak springs from his arrest on September 20, 1983, for engaging in sexual activity in a private bookstore booth at the Paradise Bookstore. The complaint states that, following his arrest, this plaintiff was interrogated, harassed, abused, and jailed by the City of Milwaukee Police until his release on September 21, 1983. Plaintiff Czerniak charges that although the arresting officer, defendant David Conroy, sought charges of disorderly conduct, the City Attorney's Office declined prosecution.
Similarly, plaintiff Ronald Higgins charges that he, too, was arrested on September 20, 1983, for engaging in sexual activity in a private bookstore booth at the Paradise Bookstore. Like his co-plaintiff, this party was allegedly interrogated, harassed, abused, and jailed until his release on the following day; according to the complaint, the City Attorney's Office likewise refused to prosecute him, despite the attempt of the arresting officer, defendant Michael Erdman, to secure charges of disorderly conduct against him.
According to the two named plaintiffs, their arrests and subsequent imprisonments were undertaken willfully, wantonly, maliciously, and with reckless disregard for the their rights and the rights of others. They further charge that the conduct of the arresting officers was in furtherance of a policy, custom, or practice of the City of Milwaukee Police Department to arrest persons for engaging in sexual activities in private bookstore booths. Purportedly formulated and implemented at the direction of defendants Harold A. Breier, formerly the Chief of Police, and Richard Heder, Captain of the Vice Squad, this arrest policy is, according to the plaintiffs, contrary to the position adopted and advanced by the City Attorney against prosecution of individuals apprehended while engaging in such sexual conduct. Accordingly, it is the plaintiffs' principal allegation that neither of the arresting officers had probable cause to arrest or imprison them on September 20, 1983, for engaging in sexual activities at the Paradise Bookstore.
Furthermore, the complaint charges that the City of Milwaukee Police Department intends to continue its policy and practice of arresting and incarcerating persons for such sexual conduct, as follows:
Plaintiffs' Complaint at 8 (February 24, 1984).2
The plaintiffs claim that the Police Department's policy violates their rights under the Fourth, Ninth, and Fourteenth Amendments to the United States Constitution in that they were arrested and imprisoned without probable cause to believe that they had violated any law; that they were subjected to summary punishment by the arresting officers without due process, notwithstanding the fact that those officers knew that the subject conduct would not be prosecuted; and that they were effectively punished in the exercise of their constitutional rights to privacy, as protected under the state and federal constitutions. They further claim that the acts of arresting officers Conroy and Erdman constituted false arrest, false imprisonment, and intentional infliction of emotional distress, all purely state law claims incorporated in this action pursuant to the Court's pendent jurisdiction.
Based on these allegations, the plaintiffs seek a preliminary and permanent injunction preventing the defendants from arresting and imprisoning persons for engaging in private, consensual activities in private bookstore booths; declaratory judgment that the particular arrests upon which this lawsuit is premised were, indeed, unconstitutional; and compensatory and punitive damages for each plaintiff in the amount of $150,000.00. They also seek their reasonable attorney's fees incurred in the prosecution of this matter and such other relief as the Court deems just and proper.
On March 28, 1984, the defendants moved to dismiss the complaint in its entirety on the basis that it fails to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In support of their motion, the defendants argue, first, that probable cause existed for the plaintiffs' arrest on September 20, 1983. In particular, it is the movants' position that the movie-viewing booths in the Paradise Bookstore are public—and not private— places in which the long-established laws regulating public conduct are properly enforced. In this context, the defendants direct the Court's attention to several state court decisions arguably supporting this critical contention that adult bookstore movie booths are, indeed, public places. See, e.g., Cammack v. Texas, 641 S.W.2d 906 (Tex.Ct.App.1982); People v. Adult World Bookstore, 108 Cal.App.3d 404, 166 Cal.Rptr. 519 (Cal.Ct.App.1980).
Moreover, the defendants argue that the named plaintiffs were not deprived of their rights under the due process clause of the Fourteenth Amendment since Wisconsin state law—in particular, Wis.Stat. § 893.80, prescribing the procedure for initiating damages claims against municipalities or their employees—provides these parties with an adequate remedy. Citing the United States Supreme Court's opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), for the central proposition that the negligent deprivation of a person's property does not violate due process if an adequate state remedy is available to redress the alleged wrong, the defendants argue for application of that doctrine to the deprivation of liberty purportedly effected in this case:
If the plaintiffs were arrested without probable cause, they have available to them adequate post-deprivation remedies for the reasons that sec. 893.80, Wis. Stats., permit them to file a claim for damages against the City of Milwaukee or its employes or both. In the event the claim is denied, they have the right under the statute to have a hearing before the Common Council of the City of Milwaukee. In the event the Council denies the claim, they have the right to bring an action for money damages in the state court under a false arrest theory. See sec. 893.57, Wis.Stats.
Defendants' Memorandum in Support of Motion to Dismiss at 7-8 (March 28, 1984).
Finally, the defendants maintain that no liability may be ascribed to the City of Milwaukee or any of the employees of the Milwaukee Police Department merely as a result of the prosecutorial decision not to charge the plaintiffs with any violation of law in the wake of their arrests on September 20, 1983. Noting that the decision to charge a person with a violation of the law is solely within the discretion of the prosecutor, see, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Powell v. Katzenbach, 359 F.2d 234 (D.C.Cir.1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359 (1966), the defendants maintain that recognition of the present civil rights cause of action would prove both unwarranted and unwise, as follows:
To create a theory of liability which would support a lawsuit against the employer of the prosecuting attorney, the police chief and supervisory officers in the police department, when a lawful arrests occurs but the person arrested is not charged, would seriously undermine the freedom of the prosecutor to use his discretion for the public good, and introduce needless confusion on the part of police officials over what laws should be enforced and what laws should not be enforced. Section 62.09(13)(a), Wis. Stats., states in pertinent part: "The chief and each policeman ... shall arrest with or without process and with reasonable diligence take before the municipal judge or other proper court every person found in the city engaged in any disturbance of the peace or violating any law of the city or ordinance of such city ..." If a disagreement exists between the prosecuting attorney and the chief of police over whether or not a specific law should be enforced, the proper arena for resolving that difference is the legislative body which enacted the law. For...
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