Estate of Heenan v. City of Madison

• Decision Date: 01 June 2015
• Docket Number: No. 13–cv–606–wmc.,13–cv–606–wmc.
• Citation: Estate of Heenan v. City of Madison, 111 F.Supp.3d 929 (W.D. Wis. 2015)
• Parties: The ESTATE OF Paul HEENAN, by Personal Representative John HEENAN, Plaintiff, v. The CITY OF MADISON and Madison Police Officer Steven Heimsness, In his individual capacity, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

111 F.Supp.3d 929

The ESTATE OF Paul HEENAN, by Personal Representative John HEENAN, Plaintiff,

v.The CITY OF MADISON and Madison Police Officer Steven Heimsness, In his individual capacity, Defendants.

No. 13–cv–606–wmc.

United States District Court, W.D. Wisconsin.

Signed June 1, 2015.

Andrea Joyce Farrell, Jeff Scott Olson, Jeff Scott Olson Law Firm, Michael Robert Fox, Fox & Fox, S.C., Madison, WI, for Plaintiff.

Amanda Jane Kaiser, Catherine M. Rottier, Boardman & Clark LLP, Madison, WI, Samuel C. Hall, Jr., Timothy M. Johnson, Crivello Carlson, S.C., Milwaukee, WI, for Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

In the early morning hours of November 9, 2012, in a bohemian, residential neighborhood on the near east side of the Capitol in Madison, Wisconsin, affectionately known as "Willy Street," defendant police officer Steven Heimsness tragically shot Paul Heenan, who had been mistaken for a burglar after he drunkenly attempted to enter a neighbor's home rather than his own. Because Heenan was unarmed, a criminal investigation was conducted, but no charges were filed against Heimsness. Following that decision, the Estate of Paul Heenan filed this federal lawsuit, alleging that Heimsness used excessive force in violation of Heenan's rights under the Fourth Amendment of the United States Constitution. Plaintiff also asserts a claim against the City of Madison for constitutionally defective policies and procedures that allegedly led to the tragic shooting. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Now before the court are motions for summary judgment by both defendants. (Dkt. 44, 49.) Because plaintiff has raised genuine issues of material facts with respect to both claims, the court will deny defendants' motions in their entirety. Also before the court is defendants' joint motion to bifurcate the liability phase of trial to address first whether Heimsness violated Heenan's Fourth Amendment rights and then whether the City should be liable for any constitutional violation under Monell. (Dkt. # 91.) Because the court agrees that the likely prejudice to Heimsness in having a jury consider both claims in the same phase warrants bifurcation of the liability issues, the court will grant that motion.¹

UNDISPUTED FACTS²

The basic facts relevant to deciding both defendants' motions for summary judgment are set forth first and primarily concern the events surrounding the shooting. Additional facts relevant to deciding plaintiff's municipal liability claim against the City of Madison are set forth in the opinion on the Monell claim. Except as noted, these facts are undisputed, at least for purposes of summary judgment.

A. Background

At the time of the shooting, Officer Steven Heimsness was a City of Madison Police Officer, working nights for the Madison Police Department ("MPD"). Heimsness was hired by the City on September 8, 1997, had worked for the MPD Central District for 12 years and had been on regular patrol in the Willy Street neighborhood for three years before the shooting. During the summer of 2012, Heimsness knew there had been armed robberies and burglaries from working in that area, from alerts sent to officers from MPD, and from speaking with day-shift officers who patrolled the same area.³ Because drunken people coming out of the bars at night were easy targets for robberies, Heimsness particularly tried to patrol the area at bar time. Heimsness was also aware that there was a lot of foot traffic in the area he patrolled, and that it was very dark in this area around bar time.

At 10:45 p.m. on November 8, 2012, Officer Heimsness started his normal shift wearing MPD's full military-style uniform, including a radio earpiece. Heimsness also was wearing his duty belt, which held two loaded magazines of bullets, a Taser, a baton, a second cartridge for the Taser, a portable radio, a multi-tool, an AR 15 magazine, gloves, a set of keys, a gun holster containing a 9 mm Glock model 17 pistol, OC (oleoresin capsicum) spray (more commonly known as pepper spray), and double handcuffs.⁴ At approximately 12:27 a.m., Heimsness sent a Mobile Data Computer ("MDC") message to another Madison Police Officer: "I'm the right cop for the wrong job," "no witnesses, no problem." (Am. Compl. (dkt. # 20) § 4125; Answ. (dkt. # 22) ¶ 4125.)⁵

During the early morning hours of November 9, Heimsness was dispatched to a noise complaint at 606 S. Brearly Street in Madison. Once at the scene, Heimsness heard dispatch relay information at approximately 2:47 a.m. of a possible breaking and entering (described by dispatch as a "B & E") at 513 S. Baldwin Street. In response, Heimsness notified dispatch that the noise complaint was unfounded, and that he was en route to the Baldwin Street burglary call. Officer Heenan heard a number of other officers report to dispatch that they would be responding to the breaking and entering call as well.

B. Officer Heimsness Arrives at Scene

At 2:48:43 a.m., dispatch informed Heimsness that a female occupant of the house where the breaking and entering was in progress reported hearing something at the front door of the house, that someone had come to the front door, that her husband had gone downstairs to see what was happening, and that the female occupant remained upstairs in the house with her four children. Based on this information while travelling to Baldwin Street, Heimsness understood he was being dispatched to a felony in progress, that it was a high risk incident, that he may be confronting a suspect who did not want to get caught, that confronting a suspect can be dangerous, and that the suspect could have a weapon or be armed.⁶

Heimsness proceeded to 513 S. Baldwin Street at the cautious rate of approximately 30 miles per hour, which is at or below the speed limit, and did not turn on his squad lights or sirens so as not to notify the suspect that police were responding. When Heimsness arrived at the intersection of Baldwin Street and Spaight Street, he also turned off his car's headlights so that any suspects who might have been acting as lookouts or accomplices would not know that the police had arrived. Officer Heimsness then parked his squad car on Baldwin Street at the southwest corner of the intersection of Baldwin and Spaight, approximately 150 feet from the driveway of 513 S. Baldwin.

As depicted below, the relevant block of Baldwin runs between Jenifer Street on the north (left-hand side of the page) and Spaight Street on the south (right hand side of the page). The house located at 513 S. Baldwin Street is on the east side of the street (depicted at the top of the image, approximately at the midpoint of the image).

(Declaration of Andrea J. Farrell ("Farrell Decl."), Ex. I (dkt. # 64–9).) Heimsness crossed Baldwin at an angle and walked toward 513 S. Baldwin Street. While approaching, dispatch relayed at approximately 2:49:33 a.m. that the husband/homeowner was wearing a light-colored shirt and plaid pajama pants. There were trees and street lights along Baldwin Street, and Heimsness attempted to stay somewhat concealed as he approached.

Around this same time, Heimsness saw another MPD squad car on Baldwin Street, approaching the Jenifer Street intersection with its lights off. Although Heimsness did not know that the squad car was being driven by Officer Stacy Troumbly, he knew the car was responding to the same call and contained at least one police officer who was armed, trained and could offer assistance. Because Heimsness wanted the other officer or officers in that car to know where he was, he turned on his flashlight and "blipped" the squad car a couple of times before turning off his flashlight and returning it to its holder.⁷ Then Chief of Police, Noble Wray, testified at his deposition that officers are trained to wait for back up whenever possible in responding to calls like a potential breaking and entering. Officers also wear a radio to facilitate communication with dispatchers and other officers.

C. Physical Encounter Between Heenan and O'Malley

As Heimsness continued to approach S. Baldwin, he was able to see the address number 513. He also noticed that the porch light was on and the screen door was closed, but that the interior door was open. After crossing the street, Heimsness stopped on the terrace and waited—albeit from the record it appears very briefly—for more officers. At that moment, Heimsness represents that a tree was still blocking his view of what was occurring on the sidewalk between the house and him.⁸ Heimsness then stepped onto the sidewalk, at which point he saw movement approximately 60 feet away to his left toward Jenifer Street and observed what he described as two males—later identified as the homeowner, Kevin O'Malley, and the deceased, Paul Heenan—"struggling" with each other. (Pl.'s Resp. to City's PFOFs (dkt. # 71) ¶ 33.)

The parties dispute the proper characterization of this physical exchange, but it appears undisputed that there was some physical contact between Heenan and O'Malley. Whether it was pushing and shoving as defendants' characterize or simply grabbing as O'Malley testified, Heimsness admits that he did not see either man throwing punches or kicking. Neither did he see any weapons in either man's hands, although he obviously did not know if Heenan had any concealed weapons. He also could see that the two men were also of comparable size.⁹

At 2:49:39 a.m., Heimsness alerted dispatch that there was a "fight" between the homeowner and the suspect. Troumbly also heard Heimsness alert dispatch of the fight over the radio as she proceeded from her squad car on foot crossing Jenifer Street to Baldwin Street. At 2:49:45 a.m., Troumbly relayed over her radio that she was on the scene. Plaintiff represents that she was approximately three houses or 150 feet away from 513 S. Baldwin.

Tragically and unbeknownst to Heimsness, what he apparently thought was occurring and...