811 F.2d 1139 (7th Cir. 1987), 85-2380, Bergren v. City of Milwaukee

Docket Nº:85-2380.
Citation:811 F.2d 1139
Party Name:Michael BERGREN, individually and by his guardians, Kenneth Bergren and Adriane Bergren, Plaintiffs-Appellants, v. CITY OF MILWAUKEE, et al., Defendants-Appellees.
Case Date:February 11, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1139

811 F.2d 1139 (7th Cir. 1987)

Michael BERGREN, individually and by his guardians, Kenneth

Bergren and Adriane Bergren, Plaintiffs-Appellants,


CITY OF MILWAUKEE, et al., Defendants-Appellees.

No. 85-2380.

United States Court of Appeals, Seventh Circuit

February 11, 1987

Argued Sept. 3, 1986.

Page 1140

Robert E. Sutton, Sutton & Kelly, Milwaukee, Wis., for plaintiffs-appellants.

Reynold Scott Ritter, Milwaukee City Attorney's Office, Milwaukee, Wis., for defendants-appellees.

Before CUDAHY, EASTERBROOK, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Michael Bergren and his guardians, Mr. and Mrs. Bergren, 1 filed suit under 42 U.S.C. Sec. 1983 against the City of Milwaukee and several of its police officers. The Bergrens claim that the appellees violated their constitutional rights by arresting Michael Bergren without probable cause, separating him from his stepmother and retaining custody over him for approximately ten hours. The district court granted the appellees' motion for a directed verdict on the ground that the appellants failed to establish that the appellees acted in violation of the Constitution. We affirm.


  1. Factual Background

    On the night of September 15, 1982, eleven-year old Michael Bergren was babysitting two-year old Kelly Tompkins while his mother accompanied Kelly's mother to a party. At approximately 12:30 a.m. on September 16, Mr. Tompkins arrived at his home. The mothers had not yet returned from the party. Upon looking in on his daughter, Mr. Tompkins discovered that her face was bruised, that she had vomited and that she was unresponsive. As Mr. Tompkins rushed out of the house carrying Kelly, he remarked that Kelly looked as if she had been beaten. Michael remained at the Tompkins' residence for about thirty minutes and then walked home.

    Mr. Tompkins notified his wife and Mrs. Bergren of Kelly's condition and they both immediately joined him at the hospital where he had taken Kelly. Doctors at the hospital notified the police that Kelly was in critical condition with a fractured skull. When Mrs. Bergren overheard the officers discussing the possibility of charging Michael with either child abuse or attempted murder, she told the police officers that he was her son and, at the request of the officers, she brought him to the hospital.

    At approximately 2:00-2:30 a.m., two police officers took Michael into custody at the hospital. They then transported him to the police station in downtown Milwaukee. The officers refused Mrs. Bergren permission to accompany them in the police car, and refused to wait for her to arrange transportation so that she could follow the squad car to the station. The officers told Mrs. Bergren that Michael would be taken either to the First District Station or to the Children's Center, but they were uncertain where he ultimately would be detained.

    Two detectives questioned Michael Bergren at the station for approximately forty-five minutes. The detectives informed Michael of his right to counsel, which, according to their testimony, he waived. He told the detectives that he had pushed Kelly down because she would not stop crying and, as a result, Kelly hit her head on the kitchen table and cut her lip. Michael also told the detectives that he had slapped Kelly after she had bitten him. When the detectives had finished questioning Michael, he was placed in a cell in the "segregated juvenile section of the city lockup" where he remained until 6:20 a.m. Michael spent approximately fifty-four minutes in

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    the cell. He was then handcuffed and taken to the juvenile detention center.

    Despite numerous phone calls to the police station to find out where her son was being held, Mrs. Bergren testified that she was not told where her son had been taken until 4:40 a.m. after she had threatened to call the newspaper. She was then told that Michael had admitted "everything," that he was being charged, and that a hearing would be held in the morning. However, a police report indicated that Officer John Thiel had notified one of Michael's parents at 2:45 a.m. that Michael was detained at the station.

    According to Michael's testimony, the police officers failed to tell him where he was being taken or what was going to happen to him. Michael testified that he was scared during the questioning and that he lied to the officers, telling them what he thought they wanted to hear. He further stated that he did not fully understand the Miranda warnings, although, during the questioning, he gave no indication to the officers that he did not understand his rights. Michael asked if he could use the bathroom and was allowed to do so. According to Michael's description, the cell in the station was dark and filthy and the water fountain and toilet were not functioning. Michael repeatedly asked for his stepmother and was told that she was not allowed to be with him at the station. Michael testified that he was crying and yelling, but a police officer told him to "shut up." He was unable to sleep in the cell, but he slept in the squad car while he was transported to the juvenile detention center. An intake worker at the juvenile center interviewed Michael and he was released from the center at approximately noon on September 16.

  2. Allegations of the Complaint

    The complaint alleged that the appellees violated appellants' fourth, fifth, sixth, eighth, and fourteenth amendment rights as well as rights guaranteed by section 895.46 of the Wisconsin statutes. R.1 at 1. The appellants alleged that the police officers arrested Michael without probable cause and that his confinement in the cell at the police station constituted cruel and unusual punishment and deprived Michael of his due process and equal protection rights. Further, the appellants claim that, by refusing to allow Mrs. Bergren to accompany Michael to the station, the police officers violated the right of association between parent and child protected by the due process clause. In addition, the appellants' complaint alleged pendent state claims for emotional distress suffered by Michael and Mrs. Bergren resulting from the officers' conduct.

  3. The District Court's Decision

    Ruling on defendants' motion for a directed verdict, the district court addressed four issues: whether the defendants' conduct constituted a violation of 1) the fourteenth amendment's due process clause, 2) the fourth amendment's prohibition against unreasonable searches and seizures, 3) the right of familial association derived from the fourteenth amendment, and 4) provisions of chapter 48 of the Wisconsin statutes regulating the taking of children into custody. The district court concluded that the plaintiffs failed to establish a prima facie case that the defendants acted in violation of the Constitution because the officers had probable cause to arrest and detain Michael and the plaintiffs presented no evidence of mistreatment, abuse or unlawful conduct by the officers toward Michael. Further, the district judge held that the defendants did not violate Wisconsin's statutory standards for taking children into custody because the officers reasonably concluded that Michael posed a substantial risk of physical harm to other persons or to himself and this threat justified placing him in a secured detention facility.


  4. The Standard of Review

    "The standard for granting a directed verdict is very generous to the nonmovant. The trial court must view the evidence and make all inferences in the light most favorable

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    to the nonmoving party, and if reasonable jurors could differ on the conclusions drawn therefrom, the case must go to the jury." Benson v. Allphin, 786 F.2d 268, 279 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 172, 93 L.Ed.2d 109 (1986). To bring a successful section 1983 claim, the plaintiffs must prove that the defendants deprived them of a right secured by federal law or the Constitution while acting under color of state law. Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 n. 1 (7th Cir.1985); Beard v. Mitchell, 604 F.2d 485, 495 & n. 12 (7th Cir.1979). In addition, to hold the city liable, the plaintiffs must establish that the defendants acted pursuant to governmental policy, custom, or regulation. Monell v. Department of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978).

  5. Probable Cause to Arrest

    The appellants first contend that the officers violated Michael's fourth amendment rights by taking him into custody. To succeed on this claim, however, the appellants must demonstrate that the police officers lacked probable cause to take Michael Bergren into custody. Probable cause is "a fluid concept--turning on the assessment of probabilities in particular factual contexts." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). "The police have probable cause to arrest an individual where 'the facts and circumstances within their knowledge and of which...

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