English v. City of Milwaukee
| Docket Number | 19-cv-0781-bhl |
| Decision Date | 12 August 2022 |
| Parties | JARRETT ENGLISH, BENETRIA MCGOWAN, Plaintiffs, v. CITY OF MILWAUKEE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT
On August 13, 2016, a City of Milwaukee police officer fatally shot Sylville Smith, leading to a wave of protests that made national headlines. See, e.g., Kay Nolan and Niraj Chokshi, Milwaukee Shaken by Eruption of Violence After Shooting by Police, N.Y. TIMES (Aug. 14, 2016) https://www.nytimes.com/2016/08/15/us/milwaukee-shaken-by-eruption-of-violence-after-shooting-by-police.html; ECF No. 80 at 2-3. In the initial days of these protests, a handful of those gathered engaged in reprehensible acts of criminal violence, including looting and the arson of a gas station and bank. ECF No. 80 at 2-4. But a majority of the protesters, including those meeting daily near a tree decorated as a memorial, were law-abiding and peaceful. Id. at 3-4. And, as passions cooled in the ensuing days, large-scale illegal activity subsided. Id. at 3-5. The situation did not become easy for the police however. Neighborhood residents continued to report public drinking, drug use, and other disorderly behavior, sometimes lasting late into the night. See, e.g., ECF No 69-10 at 12-13; ECF No. 69-14 at 16-18. In response to these concerns, Milwaukee Police Chief Ed Flynn decided it was time to “restore order” to the area. ECF No. 69-3 at 3; ECF No. 69-27. Internal emails show he took it upon himself to determine that two weeks of mourning was “enough,” and he instructed his units to put an end to the gatherings. ECF No. 69-6.
Caught up in Chief Flynn's decision were Plaintiffs Benetria McGowan and Jarrett English. Both were arrested in the vicinity of the memorial tree by officers acting on Chief Flynn's orders.
ECF No. 80 at 14-26. Neither was engaged in any criminal conduct; they simply happened to be in the area when the dispersal orders were issued and were deemed to be noncompliant. Following their arrests, they filed this lawsuit. ECF No. 1. Their amended complaint invokes 42 U.S.C §1983 to assert Fourth Amendment claims for unlawful arrest (Count I) and excessive force (Count II) against the officers who were involved in their arrests-Raymond Brock, Nesrodene Ghassoul, Andrew Wilkiewicz, Rebecca Wallich (formerly Rebecca Rodriguez), and Assistant Chief of Police James Harpole.[1] ECF No. 20 at 3-5, 10-11. They also assert a First Amendment Monell claim against the City of Milwaukee, its Chief of Police (now Alfonso Morales), and Asst. Chief Harpole, challenging the City's decision to order the dispersal of all, even peaceful, protesters (Count III). Id. at 3-5, 11.
The parties have filed cross-motions for summary judgment. McGowan and English seek summary judgment on their wrongful-arrest and excessive-force claims and on one of their two theories of Monell liability. ECF No. 51. Defendants argue that the undisputed facts preclude liability findings on all the three counts. ECF No. 57. The individual officer defendants also assert qualified immunity. ECF No. 58 at 3. The Court heard oral argument on February 25, 2022 and took the motions under advisement. See ECF No. 96. For the reasons stated below, the motions are now granted in part and denied in part.
On the afternoon of August 13, 2016, Milwaukee Police Officer Dominique Heaggan-Brown shot and killed Sylville Smith in Milwaukee's Sherman Park neighborhood. ECF No. 20 at 5; ECF No. 69-9 at 18; see also Mitch Smith and Richard Perez-Pena, Milwaukee Officer Charged in Shooting That Set Off Riots, N.Y. TIMES (Dec. 15, 2016), https://www.nytimes.com/2016/12/15/us/sylville-smith-milwaukee-police-shooting-dominique-heaggan-brown.html. The area was soon beset with major protests, some of which became violent. Nearly a thousand protesters gathered at the shooting site on the first night, and, according to one officer, a small number (about 35) were “agitated,” shouting profanities at officers, inciting the crowd, and/or trying to enter the scene of the shooting. ECF No. 69-9 at 20. Protesters set fire to a gas station, a bank, and a police vehicle. ECF No. 20 at 5; ECF No. 64 at 2; ECF No. 69-10 at 11; ECF No. 69-14 at 15; ECF No. 69-15 at 35. They also destroyed several bus shelters. ECF No. 69-14 at 15. Others looted and rioted. ECF No. 69-13 at 7-8; ECF No. 69-14 at 15.
The violence was not limited to attacks on property. Protesters threw bricks, rocks, and bottles at police. ECF No. 59-11 at 9; ECF No. 64 at 2; ECF No. 69-13 at 7. One threw a brick through a squad car windshield, significantly injuring an officer. ECF No. 64 at 2. Gunshots were also reported, ECF No. 69-10 at 11, with a bullet striking one officer's helmet. Id. While most shots were merely fired into the air, ECF No. 75 at 9-10 (citing ECF No. 69-10 at 11), at least one person suffered a non-fatal injury when a stray bullet struck him in the neck. ECF No. 59-2; ECF No. 69-15 at 33-35; ECF No. 75 at 10.
As time passed, the gatherings continued but in smaller numbers. ECF No. 75 at 8. The level of violence also seemed to diminish. See 69-10 at 11. The extent of this diminishment is disputed, however, with the parties offering dramatically different characterizations of just how peaceful the situation was after August 13.
Plaintiffs maintain that violence and criminal activity tailed off almost entirely after the first few days. ECF No. 75 at 8-11; ECF No. 80 at 3. They describe dwindling crowds, with a dozen people gathering during the day and only slightly larger groups coming together at night. ECF No. 69-9 at 32; ECF No. 69-10 at 11; ECF No. 69-14 at 16; ECF No. 69-15 at 37; but see ECF No. 69-9 at 27 (). They also emphasize that police made few arrests, as elected officials and community leaders facilitated expressive activity as an outlet for people's frustrations. ECF No. 80 at 5-8.
Defendants acknowledge that large-scale property damage and violence ceased after the first few days. ECF No. 80 at 3; see also ECF No. 69-14 at 16-17. But they insist that criminal activity did not end. They highlight ongoing disorderly conduct, which, they claim, sometimes escalated rapidly. See, e.g., ECF No. 69-9 at 27, 32 (“[T]he daily congregation of disorderly people at that location wasn't abating.”); ECF No. 58 at 30-31, 33-34; ECF No. 64 at 2; ECF No. 79 at 7-8, 11-12, 15-19, 26-27; ECF No. 85 at 6-9, 15. Residents reported profane language, public drinking and urination, marijuana use, and trespassing in private yards, porches, and parking spaces. ECF No. 69-10 at 12-13; ECF No. 69-14 at 16-18. Some objected that “their neighborhood was being taken over.” ECF No. 69-14 at 16-18. Others, feeling intimidated by the protesters, approached officers in private to ask when police would act. ECF No. 69-10 at 1213. Residents also shared their concerns with local elected representatives, including Alderman Khalif Rainey. ECF No. 64 at 3; ECF No. 69-13 at 6-7; ECF No. 69-15 at 32; ECF No. 75 at 13.
Against this backdrop, City officials began discussing ways to end the gatherings. On the morning of August 24, 2016, a member of Alderman Rainey's staff emailed several city officials, including Assistant Chief of Police James Harpole and Mayor Tom Barrett, expressing concerns about the area being “under siege” and citing an alleged shooting incident the preceding night. ECF No. 69-26. The email lauded the City's “soft hand” approach, noting its calming effect, but then cited a “need to change strategy” to find a way “to disperse all individuals” meeting in the area. Id. (emphasis added). It asked for “immediate solutions.” Id.
Later that same day, Police Chief Ed Flynn emailed Mayor Barrett's chief of staff with a plan to end the protests. ECF No. 69-6. Flynn first described the “deteriorating conditions” and the police efforts to work with neighborhood residents to address their “frustration and annoyance.” Id. He then laid out a strategy “to manage this group for the next couple of nights (unless their behavior bec[ame] intolerable) and not permit any return to the vigil on [August 26] after [Smith's] funeral and repast.” Id. He pronounced that a “two week mourning period [would] be deemed enough at that location.” Id. Plaintiffs characterize this statement as a preemptive fiat based on Chief Flynn's own weariness and impatience rather than the rule of law or the facts on the ground. See ECF No. 52 at 28-29 (citing ECF No. 69-27; ECF No. 80 at 5-12); ECF No. 74 at 17-19 (citing ECF No. 56-2, Ex. 1102 at 7:45-8:00; ECF No. 80 at 20-21); ECF No. 80 at 6-8.
Nearly a week later, on Tuesday, August 30, Alderman Rainey's staff again emailed Chief Flynn. ECF No. 69-27 at 1-2. The email asked for “an immediate resol[ution] to the current situation” given “numerous calls from concerned neighbors about . . . increased loitering littering, drug use, drug sales and everyday disrespecting of the neighborhood.” Id. Chief Flynn forwarded the email to Asst. Chief Harpole and instructed him to provide “patrol special attention” to the memorial location with officers giving “extra checks” to the area. ECF No. 69-27 at 1; ECF No. 80 at 7. While expressing hope that “admonishment and warnings” would be sufficient, Flynn directed that if “disorderly and criminal behavior persist[ed], or if lawful directives [were] defied, it [was] expected that enforcement actions [would] be taken[,]...
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