Brown v. City of Milwaukee

• Decision Date: 21 October 2003
• Docket Number: No. 02-C-0178.,02-C-0178.
• Citation: 288 F.Supp.2d 962
• Parties: Barbara J. BROWN, Plaintiff, v. CITY OF MILWAUKEE and Michael Garcia, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 962

288 F.Supp.2d 962

Barbara J. BROWN, Plaintiff, v. CITY OF MILWAUKEE and Michael Garcia, Defendants.

No. 02-C-0178.

United States District Court, E.D. Wisconsin.

October 21, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Curry First, First, Blondis, Albrecht, Bangert & Novotnak, Milwaukee, WI, for Plaintiff.

Susan Lappen, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff Barbara J. Brown brings this action under 42 U.S.C. § 1983 against defendants City of Milwaukee ("the City") and Milwaukee police officer Michael Garcia ("Garcia"),¹ alleging that defendants violated her Fourth Amendment rights by subjecting her to an unreasonable seizure. Plaintiff also brings due process and equal protection claims, as well as claims alleging violations of state tort and open records laws. Defendants now move for summary judgment on all of plaintiff's claims, and plaintiff moves for partial summary judgment on her open records law claim.

I. FACTS

On January 29, 1998 at approximately 7:00 p.m., a Milwaukee police officer broadcast a general dispatch report stating that a woman driving a two-tone maroon van north on North 35th Street in the City of Milwaukee possessed a gun. North 35th Street is a major arterial roadway. The parties dispute whether the woman in the van committed any offense. One officer testified that "shots [may have been] fired," (Def.'s Ex. C at 10), and another testified that the woman may have stolen the van. However, it is unclear from the record what, if anything, aside from possessing a gun, the woman identified in the dispatch report actually did.

The parties also dispute exactly what the dispatch report said. Plaintiff asserts that it indicated only that the woman was driving a van and had a gun. Defendants claim that the report indicated that a gun was used. Once again, however, the record contains no evidence enabling me to resolve this factual dispute.

A few minutes after the dispatch, defendant Garcia and his partner observed plaintiff in a maroon and beige van heading north on North 35th Street. Plaintiff, a fifty-five year old African-American woman, was, at the time, a teacher and guidance counselor in the Milwaukee Public Schools. Believing that plaintiff might be the woman identified in the dispatch report, the officers immediately activated their emergency lights and pulled her over. The officers also broadcast the stop on the police radio, and at least five squad cars and ten officers came to the scene. The officers blocked off the street and surrounded the van. They then shined lights at plaintiff, apparently to prevent her from seeing. They also pointed handguns, rifles and shotguns at her, and cocked their guns so that plaintiff could hear the clicking sounds of guns being prepared for firing. Several officers simultaneously shouted profanity-laced commands at her—some over a public address system—such as "get your goddamn hands out and get out of the goddamn car," "get the fuck out of the vehicle," and "shut your fucking mouth or I'll shoot." (Pl.'s Proposed Findings of Fact ("PFOF") ¶¶ 90-91.) These tactics subjected plaintiff to "sensory overload." It appears that their purpose was to frighten and disorient her.

Plaintiff states that she was terrified and confused. She complied with the officers' commands by exiting the vehicle and putting her hands on her head. The police then ordered her to walk backwards toward Garcia while keeping her hands on her head, which she did. When she reached Garcia, he prepared to handcuff her by grabbing her wrists and pulling her arms down while pushing at least one of her hands upward against her back. At this point, the officers received a radio transmission indicating that they had seized the wrong woman. Garcia released plaintiff, and the officers explained what had happened. They observed that plaintiff was trembling and crying and appeared to be traumatized. She appeared too upset to drive; thus, one of the officers prepared to drive her home. However, shortly thereafter, a friend arrived and drove plaintiff home.

Later that evening, plaintiff went to the emergency room of a local hospital where she was treated for injuries to her arm, neck and shoulder. Plaintiff asserts that when Garcia pulled her arms, he tore a ligament causing her to suffer permanent shoulder and neck pain. Plaintiff also asserts that as a result of the entire incident she suffered from post-traumatic stress disorder for which she received medical treatment.

Plaintiff requested information about the incident under the state open records law and alleges that neither the officers involved nor the City timely or fully complied with her requests. Apparently, no official police report of the incident was prepared.

Additional facts will be stated in the course of the decision.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is required "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For a dispute to be "genuine," the evidence must be such that a "reasonable jury could return a verdict for the nonmoving party." Id. For the fact to be "material," it must relate to a disputed matter that "might affect the outcome of the suit." Id.

Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255, 106 S.Ct 2505. When the evidence presented shows a dispute over facts that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating that it is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The movant may meet its burden by demonstrating that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548. Once the moving party's initial burden is met, the nonmoving party must go beyond the pleadings and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23, 106 S.Ct. 2548. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, or upon conclusory statements in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989).

In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, it is "not required to draw every conceivable inference from the record—only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991).

III. SECTION 1983 CLAIMS

In order to succeed on a claim under § 1983, a plaintiff must show that (1) the defendants deprived her of a federal constitutional right, and (2) the defendants acted under color of state law. E.g., Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir.1996); Estate of Thurman v. City of Milwaukee, 197 F.Supp.2d 1141, 1147 (E.D.Wis.2002). In the present case, it is undisputed that defendants were acting under color of state law. The only issue is whether plaintiff was deprived of a right secured by the Constitution. Plaintiff alleges that defendants violated her rights under the Fourth Amendment and her rights to due process and equal protection.

A. Fourth Amendment Claim

1. Reasonableness of Seizure

a. Applicable Legal Standards

The Fourth Amendment protects persons against "unreasonable searches and seizures." U.S. Const. amend. IV. Plaintiff's Fourth Amendment claim has two components: (1) whether the officers seized plaintiff without reasonable suspicion that she had committed a crime, and (2) whether, even if they had reasonable suspicion, the officers used tactics that were unreasonably intrusive under the circumstances or, put differently, excessive in relation to the danger she posed.

An investigatory stop not amounting to an arrest is authorized if the officer is able to point to "specific and articulable facts" that give rise to a reasonable suspicion that a crime is about to be or has been committed. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Wimbush, 337 F.3d 947, 949 (7th Cir.2003). "Reasonable suspicion" must be based on some "objective manifestation" that the suspect is involved in criminal activity. Wimbush, 337 F.3d at 949 (citing United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000)). Although the police may not detain a suspect based merely on a hunch, the likelihood of criminal activity need not rise to the level required for probable cause to arrest and falls well short of meeting the preponderance of the evidence standard. Id. (citing United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). In evaluating the reasonableness of a stop, courts must examine the totality of the circumstances known to the officer at the time of the stop. Id. at 950 (citing United States v. Jackson, 300 F.3d 740, 745-46 (7th Cir. 2002)).

To qualify as a lawful Terry stop, a detention must be limited in scope and executed through the least restrictive means. United...