Bur v. Gilbert
| Decision Date | 23 June 1976 |
| Docket Number | No. 73-C-105.,73-C-105. |
| Citation | 415 F. Supp. 335 |
| Parties | Nicholas BUR, Plaintiff, v. Charles GILBERT and Dennis Kocher, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Nicholas Bur, pro se.
James B. Brennan, City Atty., by Grant F. Langley, Asst. City Atty., Milwaukee, Wis., for defendants.
This pro se action is brought under 42 U.S.C. § 1983 and arises out of the plaintiff's arrest by Milwaukee police detectives on February 11, 1972. The arrest was made by police officers of the City of Milwaukee, but took place in the City of Wauwatosa. The complaint originally named as defendants the cities of Milwaukee and Wauwatosa, the chiefs of the police departments of both cities, two Wauwatosa police officers who accompanied the Milwaukee police officers to the scene of the arrest, and the two Milwaukee police detectives who actually made the arrest. In a decision and order dated July 18, 1974, this Court dismissed the action as to both city defendants and the Milwaukee police chief and granted summary judgment in favor of the Wauwatosa police chief and both Wauwatosa police officers. The two Milwaukee police detectives, Charles Gilbert and Dennis Kocher, are thus the only defendants remaining in this action.
With respect to the remaining defendants, the complaint seeks $2500 in damages for the unlawful arrest of the plaintiff on charges of operating an unregistered or improperly registered motor vehicle, § 341.04, Wis.Stats., and resisting or obstructing an officer while such officer is doing an act in his official capacity and with lawful authority, § 946.41, Wis.Stats. The complaint also alleges that unnecessary and excessive force was used by those defendants in effectuating the aforementioned arrest. On December 11, 1975, defendants Gilbert and Kocher moved for an order granting summary judgment in their favor and against the plaintiff, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons hereinafter stated, the Court has concluded that the defendants' motion must be granted.
From the pleadings and papers on file in this case, and from the affidavits and documents submitted in support of and in opposition to the motion for summary judgment, the following facts appear: On October 5, 1971, the plaintiff was issued a traffic citation and complaint in the form prescribed by § 345.11, Wis.Stats. The citation and complaint was signed by Officer Carl Karwack, and charged the plaintiff with a violation of § 341.04, Wis.Stats. The citation and complaint further notified the plaintiff that he had to appear in Branch 3 of the Milwaukee County Court, Room 635, Milwaukee County Courthouse, at 8:30 A. M. on November 30, 1971. The citation and complaint was subsequently sworn to before a Milwaukee County Court Commissioner, Herbert Schultz, on November 11, 1971, and filed with the clerk of court for the Milwaukee County Court on November 24, 1971.
The car the plaintiff was driving when he received the citation was a 1972 Chevrolet purchased 11 days earlier, on September 24, 1971, from the Humphrey Chevrolet Company. It appears that Humphrey Chevrolet undertook to arrange for the mechanics of transferring the title for the 1972 Chevrolet to the plaintiff. As is permissible in Wisconsin, the plaintiff physically transferred his license plates from a 1968 Ford, which was his "trade-in" for the 1972 Chevrolet, to the latter vehicle. These plates expired at the end of September 1971, but the plaintiff believed that a title certificate was necessary before the registration plates on the 1972 Chevrolet could be renewed. Plaintiff nevertheless thought (and indeed, presently maintains) that operation of the 1972 Chevrolet on and after October 1, 1971, was sanctioned by § 341.04(1)(a), Wis. Stats.:
"A vehicle may be operated by a private person after the date of purchase of such vehicle by such private person * * * if application for registration and certificate of title has been made."
The plaintiff assets that he tried to explain the foregoing facts to Officer Karwack on October 5, 1971, but that Karwack nevertheless issued the citation and complaint. Thereafter, on October 18, 1971, the plaintiff received his title certificate for the 1972 Chevrolet, and mailed the title certificate, application form, and registration fee to the State of Wisconsin.
Plaintiff claims that he did not appear in Milwaukee County Court as directed by the citation and complaint for two somewhat inconsistent reasons: (1) he had lost his copy of the citation, and (2) he had not yet received his new license plate stickers, and believed that until he had such stickers to display to the county court judge, the traffic citation would not be voided. Upon the plaintiff's failure to appear on November 30, 1971, Judge Louis J. Ceci ordered that a warrant be issued for his arrest. A warrant was subsequently issued, signed by Court Commissioner Herbert Schultz, on February 4, 1972. Although § 345.37, Wis. Stats. provides that "if the defendant fails to appear in court at the time fixed in the citation * * * (1) * * * the court may issue a warrant under ch. 968," it does not specify what provision of Chapter 968 is applicable. While § 968.09, Wis.Stats. authorizes the issuance of a bench warrant of arrest upon a defendant's failure to appear as required, the warrant of arrest in this case appears to have been based on the substance of the citation previously issued to the plaintiff—i. e., a violation of § 341.04, Wis.Stats. on October 5, 1971.
Meanwhile, on January 2, 1972, the plaintiff had received his certificate of registration and license plate stickers. On February 10, 1972, Officer Richard L. Kramer of the Milwaukee Police Department called the plaintiff at his home and informed him that the police department was in possession of a warrant for his arrest. At this point, the affidavits differ as to what next occurred: The plaintiff claims that he tried to explain the situation to Officer Kramer, whereupon Kramer hung up. Kramer, in turn, asserts that he advised the plaintiff that he could appear at either the Traffic Bureau or the Fifth District Police Station of the Milwaukee Police Department, and that failing a voluntary appearance, the warrant would be served upon the plaintiff at his home, at which time he would be taken into custody. Kramer further asserts that the plaintiff then stated that he would not voluntarily appear to answer the warrant. The plaintiff denies that Kramer told him of his option of voluntary appearance, or that he told Kramer he would refuse to so appear.
Thereafter, Officer Kramer forwarded the warrant for the plaintiff's arrest to the Warrant Detail of the Detective Bureau of the Milwaukee Police Department. The following day, February 11, 1972, Detectives Gilbert and Kocher appeared at the plaintiff's place of business, an office building located at 2747 North Mayfair Road, Wauwatosa, Wisconsin. They met the plaintiff in the reception area of the office building, advised him of the existence of the warrant, and placed him under arrest. Once again, the affidavits at this point differ as to what next occurred: The plaintiff maintains that he tried to explain the situation to the defendants, pointing out the certificate of registration in his possession and the then-current registration stickers on his car. When the defendants insisted on following through on the warrant, the plaintiff claims he stated that he would go along voluntarily. As he was putting on his coat, however, the plaintiff maintains that the defendants "grabbed and pulled" him, and then handcuffed him. The defendants, in contrast, claim that they allowed the plaintiff time to get his coat, and that only after a period of time had thereafter expired did they take the plaintiff by the arm to escort him from his office. The defendants assert that the plaintiff then started to struggle with them, whereupon he was placed in handcuffs. One of the attending Wauwatosa officers states that he entered the plaintiff's office after hearing shouting, and observed the plaintiff holding on to a desk and heard him shouting: "I am not going to go!" The plaintiff, in turn, denies holding onto a desk or making any such statement.
After being taken into custody, it appears that the plaintiff was detained for six and one-half hours before being released. Although the complaint states that the plaintiff was arrested not only for the registration offense upon which the warrant of arrest was based, but also for resisting or obstructing an officer, it does not appear that anything ever came of this latter charge. The registration offense was subsequently prosecuted, but eventually was dismissed by the district attorney on December 12, 1973.
The foregoing statement of facts is a sorry tale of an unfortunate and confused confrontation between a citizen and his government. At all times, it appears that the plaintiff honestly believed that he was innocent of the charged violation of the motor vehicle laws, and if the plaintiff's affidavit is truthful, attempted to explain his position in turn to Officer Karwack, who issued the citation, to Officer Kramer, who called the plaintiff to inform him of the warrant, and to detectives Gilbert and Kocher, who executed the warrant. Despite this belief in his innocence and his attempts to explain, the plaintiff was subjected to the indignity and humiliation of being arrested and handcuffed at the place of his business, and the embarrassment of temporary incarceration. Conversely, from the point of view of the government, the plaintiff had failed to appear at a scheduled court hearing of the underlying charge, and if Officer Kramer's affidavit is truthful, refused to agree to voluntarily appear to answer the then outstanding arrest warrant.
But in passing upon the defendants' motion for summary judgment, it is not necessary or proper for this Court to...
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