Estate of Williams v. City of Milwaukee, Case No. 16–CV–869–JPS
| Decision Date | 04 August 2017 |
| Docket Number | Case No. 16–CV–869–JPS |
| Citation | 274 F.Supp.3d 860 |
| Parties | ESTATE OF Derek WILLIAMS, Jr., Tanijah Williams, Derek Williams III, and Taliyah S. Williams, Plaintiffs, v. CITY OF MILWAUKEE, Jeffrey Cline, Richard Ticcioni, Patrick Coe, Jason Bleichwehl, Robert Thiel, Todd Kaul, Zachary Thoms, Gregory Kuspa, Craig Thimm, Chad Boyack, and David Letteer, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Jeffrey D. Patza, Jonathan S. Safran, Samster Konkel & Safran LLC, Milwaukee, WI, Ben H. Elson, Janis Susler, John L. Stainthorp, George Flint Taylor, People's Law Office, Chicago, IL, for Plaintiffs.
Elleny B. Christopoulos, Susan E. Lappen, Milwaukee City Attorney's Office, Milwaukee, WI, for Defendants.
This action arises from the death of Derek Williams, Jr. ("Williams") on July 6, 2011 while in the custody of the City of Milwaukee Police Department ("MPD"). See (Docket # 1). Plaintiffs, Williams' estate and surviving minor children, have sued the City of Milwaukee (the "City") and various police officers whom they contend violated Williams' constitutional rights in the events leading to his death.
Id. On April 24, 2017, Defendants filed a motion for summary judgment, seeking dismissal of each of Plaintiffs' claims. (Docket # 35 and # 36). Plaintiffs responded to the motion on May 24, 2017, and Defendants replied on June 7, 2017. (Response, Docket # 55; Reply, Docket # 60).1 For the reasons explained below, Defendants' motion must be denied in its entirety.
Federal Rule of Civil Procedure 56 provides the mechanism for seeking summary judgment. Rule 56 states that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see Boss v. Castro , 816 F.3d 910, 916 (7th Cir. 2016). A "genuine" dispute of material fact is created when "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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court construes all facts and reasonable inferences in a light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc. , 815 F.3d 356, 360 (7th Cir. 2016). In assessing the parties' proposed facts, the Court must not weigh the evidence or determine witness credibility; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth. , 618 F.3d 688, 691 (7th Cir. 2010). Internal inconsistencies in a witness's testimony " 'create an issue of credibility as to which part of the testimony should be given the greatest weight if credited at all.' " Bank of Ill. v. Allied Signal Safety Restraint Sys. , 75 F.3d 1162, 1170 (7th Cir. 1996) (quoting Tippens v. Celotex Corp. , 805 F.2d 949, 953 (11th Cir. 1986) ). The non-movant "need not match the movant witness for witness, nor persuade the court that [their] case is convincing, [they] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 921 (7th Cir. 1994).
3.1 Relevant Facts
Upon review of the parties' factual briefing, the Court finds that the following facts are material to Defendants' motion.2 The Court presents a timeline of events first, then addresses other relevant topics. As an aside, Defendants have moved to strike certain expert opinions. (Docket # 67). That motion will be denied in its entirety. Because it is helpful to understand the background facts prior to analyzing the experts' opinions, the Court will turn to that issue after it discusses the facts.
3.1.1 Timeline
In July 2011, Williams was a 22–year-old African–American man, with a tall, thin build, and in generally good physical shape. He and his girlfriend, Sharday Rose ("Rose"), had three children, Tanijah, Derek III, and Taliyah.3 On July 3, 2011, Williams was arrested and jailed. He was released two days later. On the evening of July 5, 2011, Williams went to Rose's home to visit her and the children. Late that night, Williams and Rose's stepfather, Tyrone Mathis ("Mathis"), left the home to go buy snacks.
At approximately 12:35 a.m. on July 6, 2011, Williams crossed the intersection of North Holton and East Center Streets, about two miles north of this District's courthouse. In doing so, Williams approached Samuel Tooke ("Tooke") and Zhanna Godkin ("Godkin"), who were walking home from the Summerfest festivities. At the same time, Defendants Jason Bleichwehl ("Bleichwehl"), Gregory Kuspa ("Kuspa"), Jeffrey Cline ("Cline"), and Zachary Thoms ("Thoms") were driving in two police cars near the intersection, proceeding north on Holton Street. Cline and Thoms then turned east onto Center Street, and observed Williams approaching Tooke and Godkin.
Cline and Thoms thought Williams was attempting to rob Tooke and Godkin. They believed that Williams had a gun, though he did not. Williams did have a mask over his mouth "with a sinister smile printed on it, which looked much like the smile of the 'Joker' character from the old Batman series." (Docket # 56 at 12). He also held a cell phone under his clothing which suggested that he was armed. Mathis, however, states that he and Williams never discussed a robbery and saw no indication that Williams intended to rob Tooke and Godkin as he approached them. In fact, Williams had told Mathis that he knew Godkin when they first saw the couple.
Cline and Thoms stopped their car in the street. When they did so, Williams ran back across Holton Street towards an alley between Holton and the next street to the west, Buffum. Cline ran after him. Cline lost Williams in the alley and began searching in the adjacent yards. Thoms, meanwhile, moved his car onto Buffum Street, and Bleichwehl and Kuspa followed. Bleichwehl joined Cline's search. Defendants Richard Ticcioni ("Ticcioni"), Patrick Coe ("Coe"), Robert Thiel ("Thiel"), Todd Kaul ("Kaul"), Chad Boyack ("Boyack"), Craig Thimm ("Thimm"), and David Letteer ("Letteer") (all defendant police officers referred to collectively as the "Officer Defendants") responded to the scene to set up a containment perimeter and assist in locating Williams. Ticcioni and Coe in particular moved south down the alley, checking for Williams in various backyards.
At 12:44 a.m., Ticcioni and Coe found Williams hiding under a table in a backyard, curled up in a ball. This was approximately eight minutes after Williams first ran away from Cline. To reach that position, Williams had run about 200 to 300 yards and jump over a fence. When he saw Williams, Ticcioni yelled for Williams to show his hands. Williams complied. Bleichwehl, Cline, Thoms, Kuspa, Thimm, and Letteer began moving to that area when they heard Ticcioni yell. Thiel and Kaul also did so soon afterward.
When Ticcioni attempted to grab Williams' arm, his hands slid off because Williams was soaked with sweat. It was still over 70 degrees in the early morning hours of July 6, and Cline says he was breathing heavily and sweating from his exertion. Williams was also breathing heavily but Cline attributed this to his flight. Ticcioni and Coe say that Williams briefly struggled with them, so they pulled Williams down such that he was laying on his back. Ticcioni then flipped Williams over and put his knee in Williams' back as Coe applied handcuffs. Thoms, Kuspa, Cline, and Thimm were present as Ticcioni and Coe handcuffed Williams.4 Bleichwehl, Theil, Kaul, and Letteer arrived shortly after.5
After handcuffing Williams, Ticcioni remained on top of him. Williams complained that he could not breathe, so Ticcioni shifted the majority of his weight off of Williams' back. Ticcioni radioed to dispatch that Williams was in custody, and during that transmission, Williams can be heard stating that he cannot breathe. Ticcioni and Coe searched Williams' pockets while he was on the ground. They then pulled Williams up to his feet. During this time, Williams repeated that he could not breathe. Once standing, Williams went limp, so Thiel told Ticcioni and Coe to put him back on the ground. Thiel gave this instruction so he could evaluate Williams' condition and because "I don't want my officers hurting their back holding dead weight." (Docket # 54–11 at 89:15–17).
Cline, Kuspa, Thoms, Thimm, Letteer, and Kaul variously began searching for the gun they believed Williams carried and went back to check on the alleged victims.6 Plaintiffs claim that this is no excuse for them to ignore Williams or claim that they could not hear his breathing complaints. Kuspa, Coe, Bleichwehl, and Ticcioni admit that they heard Williams, but did not believe that he was having a medical emergency. Cline, Thoms, Letteer, Theil, and Kaul deny hearing Williams' requests for help.
Once Williams was returned to the ground, Thiel attempted to speak with him. Williams was breathing heavily and sweating, his eyes were closed, and he was unresponsive to Thiel.7 Ticcioni felt that Williams was faking distress in order to make it more difficult for officers to remove him from the backyard, so he told Williams to "stop messing around." (Docket # 54–14 at 4). Thiel then performed a "sternum rub" on Williams, which involves rubbing one's knuckles across a person's sternum. This painful procedure is meant to determine whether the person is truly unconscious. Thiel's sternum rub caused Williams to open his eyes and become responsive. Thiel claims that Williams said he was "just playing around" with the alleged victims and that they were his friends. (Docket # 48 at 8). Theil and Coe agreed with Ticcioni's conclusion that Williams was simply resisting arrest.
Ticcioni and Coe were then able to bring Williams back to his feet and move out of the backyard. Williams continued to claim that he could not breathe. On the way out of the...
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