Coleman v. Moldenhauer
| Decision Date | 02 November 2015 |
| Docket Number | Case No. 14-CV-1234-JPS |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | JULIUS A. COLEMAN, Plaintiff, v. DAVID R. MOLDENHAUER, P.O. KIRBY and LT. MASTROCOLA, Defendants. |
The plaintiff, Julius A. Coleman, ("Coleman") brings this action pursuant to 42 U.S.C. § 1983 against three Wauwatosa police officers. Coleman alleges that the defendants used excessive force and battered him during his arrest.
Both Coleman and the defendants brought motions for summary judgment (Docket #19, #28, #48). The motions are now fully briefed and ready for disposition. As discussed more fully below, factual issues exist to preclude judgment as a matter of law, and, thus, the Court will deny both motions for summary judgment.
1. FACTUAL BACKGROUND1
The facts of this case relate to Coleman's arrest on June 10, 2011. In short, Coleman alleges that the defendants used excessive force in executing the arrest, whereas the defendants maintain they used only reasonable force.
1.1 The Investigation
In May 2011, Wauwatosa Police Officer David A. Cefalu ("Cefalu") had contact with Wauwatosa Confidential Informant C.I. 11-156 ("C.I.").(DPFF ¶ 1).2 C.I. 11-156 told Cefalu that he knew a black male that went by the name "JuJu." (DPFF ¶ 2). Using a law enforcement database, Cefalu was able to identify "JuJu" as an alias for Julius A. Coleman, male/black with a date of birth of February 3, 1984. (DPFF ¶ 3).
The C.I. told Cefalu that he knows that Coleman carries a .38 revolver and that Coleman had drug deals in the past for money, drugs and vehicles. (DPFF ¶¶ 4, 5). The C.I. told Cefalu that the C.I. told Coleman that he knew a drug dealer named "Poncho" who dealt large quantities of drugs and had large amounts of cash. (DPFF ¶ 6). Coleman suggested a plan to the C.I. to rob the drug dealer with an accomplice. (DPFF ¶ 7).
On May 18, 2011, the C.I. made a recorded/monitored phone call to Coleman. During the call, they discussed Coleman robbing the drug dealer. Coleman stated all he needed was the address.(DPFF ¶ 8). On May 23, 2011, the C.I. made a recorded/monitored phone call to Coleman and met with Coleman. During the call/meet, they discussed the robbery. Coleman made a statement that he had a .357, a "K" (AK47) and a .40. (DPFF ¶ 9). On June 3, 2011, the C.I. made a recorded/monitored phone call to Coleman and met with Coleman. During the phone call/meet, they discussed the robbery. Coleman talked about having a .44 chrome gun and a .357. (DPFF ¶ 10).
On June 7, 2011, the C.I. made a recorded/monitored phone call to Coleman. During the call, Coleman told the C.I. he was going to call his guy"Tez" to be an accomplice. The C.I. told Coleman that the drug dealer was leaving town on either June 10 or June 11. (DPFF ¶ 11).
On June 9, 2011, at approximately 10:10 p.m., the C.I. received a phone call from Coleman. The C.I.'s phone battery died and the C.I. then made a recorded/monitored call to Coleman. (DPFF ¶ 12). During the call Coleman stated he was coming from downtown and had to go and grab a gun first. (DPFF ¶ 13). During the conversation, Coleman stated the police better not get involved "cuz I'm shooting at them mutha-fuckers." (DPFF ¶ 14). Coleman told the C.I. that he was bringing "Tez" and another male named "Meal." (DPFF ¶ 15).
Between 10:54 p.m. on June 9, 2011, and 1:00 a.m. on June 10, 2011, there were numerous phone calls between the C.I. and Coleman. Coleman told the C.I. that "Meal" was no longer coming but that he and "Tez" were coming with a gun. (DPFF ¶ 16). At about 12:35 a.m., on June 10, 2011, Coleman told the C.I. that he would meet the C.I. at North 76th Street and Burleigh Street. (DPFF ¶ 17). At about 1:00 a.m., Cefalu observed a vehicle traveling on W. Burleigh Street and pull behind the C.I.'s vehicle. (DPFF ¶ 18). The vehicle parked and the driver (later identified as Coleman) exited the vehicle. (DPFF ¶ 19). Coleman opened the hood of the vehicle and it looked like he was trying to retrieve something.3 (DPFF ¶ 20).
Coleman had two other individuals, Eldridge L. Simon ("Simon") and Onterio M. Girley ("Girley"), with him when he arrived at the C.I.'s location. (DPFF ¶¶ 21, 22). At about 1:04 a.m., on June 10, 2011, the C.I., Coleman, Simon and Girley left southbound on North 76th Street in the C.I.'s vehicle.(DPFF ¶ 23). Unmarked police vehicles continuously followed the C.I.'s vehicle as it traveled to the designated "take down" area. (DPFF ¶ 24).
At about 1:16 a.m., the C.I. pulled into the Western Building Products parking lot and parked. This was the area that had previously been selected as the "taken down location." (DPFF ¶ 25). While parked, the C.I. discussed the specifics of the robbery and pointed out the apartment building to Coleman, Girley and Simon where the robbery was to occur. (DPFF ¶ 26). The C.I. told Coleman, Girley and Simon that he would call Coleman after making contact with the alleged drug dealer who was to be robbed. (DPFF ¶ 27). The C.I. then exited the vehicle to make contact with the alleged drug dealer. (DPFF ¶ 28).
The plan was for the C.I. to exit the vehicle and then the Wauwatosa Special Response Team would arrest the suspects remaining in the vehicle. (DPFF ¶ 29). Prior to the C.I.'s vehicle arriving at the "take down location," Cefalu told the Special Response Team that the suspects had a gun and that if the police got involved there was going to be a shootout. (DPFF ¶ 30.) After the C.I. exited the vehicle, the Special Response Team moved into position to make the arrests. (DPFF ¶ 31).
Several flash bangs were deployed as the Special Response Team arrived in position to make the arrests. (DPFF ¶ 32).4 Coleman alleges that the flash bangs were shot into the vehicle (Compl. at 2), whereas the defendants provide no further detail with respect to the flash bangs. Detective Romeis (not a defendant) positioned the "Bear Cat," which is atactical vehicle used in high risk situations, directly behind the rear bumper of suspect's vehicle. (DPFF ¶¶ 32, 33).5
After the flash bangs were deployed, defendant P.O. Kirby used a P.A. System to direct Coleman and the other vehicle occupants to put their hands in the air. (DPFF ¶ 34). One of the suspects did comply with the orders, but one of the suspects appeared to dive onto the floor between the front and back seats.6 (DPFF ¶ 35). Using the P.A. System, P.O. Kirby continued to order the suspects to raise their hands and comply with the orders. After several minutes, it appeared that the suspects were still not complying with the orders. (DPFF ¶ 36).
At this point, the officers allege they feared for their safety because they knew that the suspects had a gun and threatened a shootout if the police became involved. (DPFF ¶ 37). The police were concerned that the suspects were "formulating a plan or barricading themselves within the vehicle." (DPFF ¶ 38). Defendant Moldenhauer ordered defendant Kirby to shoot out the rear and side windows of the vehicle with less lethal rounds from a 40mm gas gun. (DPFF ¶ 38). With the windows shot out, the officers could see the suspects in the vehicle. (DPFF ¶ 39). Someone again ordered the suspects out of the vehicle and this time they complied and the officers took them into custody. (DPFF ¶ 40).
During a search of the vehicle, a Lorcin Model 380 semi-automatic handgun was recovered with a magazine containing five cartridges (DPFF¶ 42). Following a trial before a jury, Coleman was subsequently found guilty of being a felon in possession of a firearm and bail jumping. (DPFF ¶ 41).
When a party files a motion for summary judgment, it is their "contention that the material facts are undisputed and the movant is entitled to judgment as a matter of law." Hotel 71 Mezz Lender LLC v. Nat. Ret. Fund, — F.3d —, 2015 WL 499571, at *5 (7th Cir. Feb. 6, 2015) (citing Fed. R. Civ. P. 56(a))."Material facts" are those facts which "might affect the outcome of the suit," and "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, to have a genuine dispute about a material fact, a party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 474 U.S. 574, 586 (1986); namely, the party in opposition "must set forth specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e).
"Where...the movant is seeking summary judgment on a claim as to which it bears the burden of proof, it must lay out the elements of the claim, cite the facts it believes satisfies these elements, and demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant on the claims." Hotel 71 Mezz, 2015 WL 499571, at *5. When analyzing whether summary judgment should be granted, a court must draw all reasonable inferences from the materials before it in favor of the non-moving party. See Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir. 1989). When a court denies a motion for summary judgment it "reflects the court's judgment that one or more material facts are disputed or that the facts reliedon by the motion do not entitle the movant to judgment as a matter of law." Hotel 71 Mezz, 2015 WL 499571, at *6.
Coleman's motion for summary judgment argues that he is entitled to judgment as a matter of law because the defendants' actions during his arrest were objectively unreasonable. In contrast, the defendants argue that they are entitled to judgment as a matter of law on both the Fourth Amendment claim and state law battery claim because: (1) their use of force was objectively reasonable; (2) they are entitled to qualified immunity because the law was not clearly established at the time of the incident; and (...
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