Betker v. Gomez

• Decision Date: 05 September 2012
• Docket Number: No. 11–3009.,11–3009.
• Citation: 692 F.3d 854
• Parties: Richard BETKER, Plaintiff–Appellee, v. Rodolfo GOMEZ, Police Officer, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

692 F.3d 854

Richard BETKER, Plaintiff–Appellee,

v.Rodolfo GOMEZ, Police Officer, Defendant–Appellant.

No. 11–3009.

United States Court of Appeals, Seventh Circuit.

Argued June 8, 2012.

Decided Sept. 5, 2012.

Kari Helene Race (argued), Attorney, Gutglass, Erickson, Bonville & Larson, S.C., Milwaukee, WI, for Plaintiff–Appellee.

Susan E. Lappen (argued), Attorney, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendant–Appellant.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Richard Betker was shot twice during a late-night police raid on his home. The officer who shot him was part of a tactical unit executing a no-knock search warrant secured by Officer Rodolfo Gomez. Officer Gomez obtained the warrant after receiving information from Debbie Capol, the estranged sister of Richard's wife, Sharon, regarding Sharon being a convicted felon allegedly in possession of a firearm. Capol now swears that most of the information that Officer Gomez related in his affidavit to support the warrant's issuance was not true.

Richard sued Officer Gomez under section 1983 for violating his Fourth Amendment right to be free from unreasonable searches and seizures. Richard claims that Officer Gomez made a series of false or misleading statements in the affidavit that he submitted to obtain the no-knock search warrant and that without those statements probable cause would not have existed. At the close of discovery, Officer Gomez moved the district court for qualified immunity. The district court denied the motion and Officer Gomez now appeals. We conclude that qualified immunity is not appropriate in this case because Betker has produced sworn deposition testimony of Sharon's estranged sister contradicting Officer Gomez's probable cause affidavit. If believed, that deposition testimony would establish that Officer Gomez knowingly or with reckless disregard for the truth made false or misleading statements in the affidavit. Absent Officer Gomez's false statements, probable cause for the no-knock warrant would not have existed. Therefore, we affirm the district court's denial of Gomez's request for qualified immunity.

I. BACKGROUND

At 10:00 p.m. on August 4, 2006, roughly fifteen officers from the Milwaukee Police Department's Tactical Enforcement Unit (TEU) executed a no-knock search warrant on the home of Richard and Sharon Betker on a tip from Sharon's estranged sister indicating that Sharon was a felon in possession of a firearm. Upon arrival, officers smashed the home's front window as a “distraction.” They activated their red and blue police lights and beamed a powerful, blinding spotlight through the broken window and into the home. Sharon and Richard Betker, comfortably asleep in bed, were suddenly awakened by the violent crash of shattered glass and became disoriented by the loud, screaming voices and the bright, flashing lights. Unable to comprehend the commands being shouted by TEU officers, Richard instinctively thought that his home had been invaded. He grabbed one of his firearms, crouched behind a wall next to the couple's bedroom doorway, and shouted, “Who are you? What do you want? Who are you, who the f––– are you!” Receiving no response, and feeling that his and his wife's safety were at risk, Richard extended his arm into the doorway and brandished his weapon to show the apparent intruders that he was armed and ready to defend his domain.

Seeing Richard's outstretched arm holding a weapon, TEU Officer Allen Groszczyk immediately fired. His first shot penetrated the door and bedroom wall, hitting Richard in his hand. Groszczyk's other shots traveled the same path and struck Richard's shoulder. With Richard down, officers swarmed the room and detained both him and his wife. Although Officer Groszczyk claims to have yelled “search warrant—police!” before firing, Richard denies hearing or comprehending any verbal notifications or instructions.

With Richard and Sharon securely in custody, the TEU officers began a search of the residence. Officer Rodolfo Gomez was one of the officers who searched the home. He discovered and seized live ammunition and a number of weapons, including five rifles, four shotguns, and a revolver. Other TEU officers found another handgun located between the headboard and mattress of the couple's bed and one more by Richard's bedside table. Richard was arrested for recklessly endangering the safety of others in violation of Wisconsin Statute § 941.30. However, he was never charged. And all of the weapons seized that night have since been returned.

A few days earlier, on July 27, 2006, Debbie Capol called the MPD's “Gun Hotline” to report that her estranged sister, Sharon Betker, was a felon in possession of a firearm. MPD established the hotline as part of a concerted campaign to reduce the number of illegal firearms in Milwaukee. Citizens' calls were usually answered by MPD officers. When Capol called, she spoke to Officer Rodolfo Gomez. Capol identified herself, provided her home address, telephone number, and date of birth, and then asked whether it was illegal for a felon to possess a firearm. Officer Gomez affirmatively responded. Capol then described her sister's alleged crime.

The parties dispute the content of Capol's initial statement to Gomez, as well as what she said to him during their subsequent conversations. Since this case was appealed from a denial of qualified immunity, we construe the facts and evidence in the light most favorable to the plaintiff, Jewett v. Anders, 521 F.3d 818, 822–23 (7th Cir.2008), and we do that in the narrative that follows.

When Capol first spoke to Officer Gomez on July 27, 2006, she told him that Sharon was a convicted felon and that Sharon and her husband, Richard, possessed numerous firearms in their Franklin, Wisconsin home. However, she made clear that she had not personally seen the firearms in question because she had last visited Sharon's home five years earlier, in 2001. Capol also told Gomez that in light of her rocky relationship with her sister she “was concerned about appearing to want to ‘burn’ Sharon, or have Sharon arrested.” Even so, she expressed fear for her own safety because, moments earlier, her son, Zachariah Hamburg, had informed her that Sharon said she would shoot Capol if Capol ever “drove down 76th Street,” where Sharon lived. Zachariah relayed the threat to his mother after he and Sharon had an argument. Capol immediately called the gun hotline.

After speaking with Capol, Officer Gomez conducted a preliminary investigation. This consisted of a “property check” to confirm Sharon and Richard's ownership of the home on 76th Street, a brief “drive by” the home, four days later, to take photos and “verify the address and location of the residence,” and a routine background check to determine if Sharon had, in fact, been convicted of a felony. Officer Gomez's preliminary investigation revealed that Sharon was convicted of credit card fraud in 1982, a felony at that time, and she lived with her husband Richard at the house on 76th Street. Officer Gomez never spoke to Zachariah to corroborate Capol's account of Sharon's alleged threat. He did not speak directly with Sharon or Richard. And he did not attempt, in any way, to independently verify that Sharon and Richard kept firearms in their home.

But Gomez did contact Capol again, on August 3, 2006. Capol reiterated that she had not been to Sharon's home since 2001, but said that when she was last there she saw a gun in Sharon's bedroom, gun holsters on each side of the bed, and a gun in a cabinet that Sharon said was there “in case anybody was to mess around with the garage, the cars, or ... [the] barn.” Richard, according to Capol, possessed hunting rifles and stuffed game, hunted illegally, and was once arrested for killing a coyote. Capol reported that Richard and Sharon maintained a home “full of guns.” She reached this conclusion based on her pre–2001 visits and information she received from her boyfriend, Dennis Hamburg—who had been told by another friend, William Acker, that the Betkers recently had a “rummage sale” during which they did not sell any firearms (the implication being that the Betkers had guns in the past and did not sell any, so they must still have them). Neither Capol nor Dennis attended the rummage sale. And Officer Gomez did not attempt to contact Acker to obtain more information about what he did or did not see while at the Betker's home.

Following this conversation, Officer Gomez ran a routine background check on Richard, confirming that Richard had once been arrested for illegally shooting and killing a coyote (a Milwaukee ordinance violation). The next day, August 4, 2006, Officer Gomez drafted a form affidavit to present to the County Court Commissioner to obtain a no-knock search warrant for the Betker home. Accepting the advice of the Assistant District Attorney, Officer Gomez contacted the Wisconsin Department of Natural Resources (“DNR”) to determine if Richard had obtained the proper hunting permits. The DNR check revealed that Richard had obtained hunting licenses in four out of the five previous years. Officer Gomez incorporated this information into his affidavit and presented it to the ADA, who signed it without delay.

The relevant parts of the affidavit that Officer Gomez submitted to the Commissioner stated:

4) The affiant knows through personal involvement in this investigation and through reports and documents ... that a convicted felon named Sharon Marie Betker (Capol), white female ... is reported to be in possession of at least 1 handgun, a dark colored semi-automatic handgun, at her residence.... A known citizen witness, who wishes to remain anonymous, stated that within the last 5 days, the informant has observed BETKER in possession or control of at least one handgun, at the above-described address. In addition, the informant stated that Betker and her husband RICHARD...