Foshey v. Ekholm, 19-cv-434-slc
| Decision Date | 08 September 2020 |
| Docket Number | 19-cv-434-slc |
| Parties | STEVEN FOSHEY, Plaintiff, v. CITY OF ELLSWORTH POLICE OFFICER SGT. DARREN EKHOLM, et al., Defendants. |
| Court | United States District Courts. 7th Circuit. Western District of Wisconsin |
In this civil action brought under 42 U.S.C. § 1983, plaintiff Steven Foshey alleges that Village of Ellsworth police officers Darren Ekholm and Chase McKahan and Pierce County sheriff's deputy Tara Wentlandt violated his Fourth Amendment rights by stopping, detaining, and searching him without reasonable suspicion, by arresting him without any reasonable belief that he had committed a crime or met the requirements for emergency detention, and by using excessive force. Before the court is Foshey's motion for partial summary judgment as to the lawfulness of defendant Ekholm's seizure of Foshey during the initial vehicle stop, roadside detention, and custodial arrest under Wisconsin's community caretaker doctrine.1 Dkt. 30. Specifically, Foshey argues that Ekholm's asserted defense of qualified immunity fails as a matter of law. For the reasons stated below, I find that Ekholm is entitled to qualified immunity with respect to the stop, detention, and arrest of Foshey and I am dismissing Foshey's claims of unlawful seizure on that ground.
From the parties' proposed findings of fact, the video footage from the body camera worn by Ekholm during the incident in question (see dkt. 33, ¶ 5),2 and the transcript of the video (Tr., dkt. 29), I find the following facts to be material and undisputed unless otherwise noted. See Scott v. Harris, 550 U.S. 372, 380-81 (2007) ().
Plaintiff Steven Foshey is a 29-year old resident of Wisconsin Rapids, Wisconsin. At the time of the events at issue in this case, Foshey was experiencing symptoms of undiagnosed schizophrenia.
Defendant Sgt. Darren Ekholm is a law enforcement officer employed by the Village of Ellsworth, and he was acting within the scope of his employment during all of his interactions with Foshey in July 2015. At the time of the events in question, Ekholm was an officer with 15 years experience and was the only sergeant in the Ellsworth Police Department.
At approximately 7:10 p.m. on July 12, 2015, Ekholm was dispatched to the Holiday Gas Station, which is located about one block from the Ellsworth Police Department on Main Street, which is also designated as State Highway 10 and 63. Dispatch told Ekholm that 3 Ekholm testified at a motion hearing on December 13, 2016 that he understood this to be a report about a suspicious individual who had spent a significant amount of time in his car in the parking lot at the gas station. Ekholm did not have a description of the individual or his vehicle or any other information about what the individual said.
Ekholm drove his squad car from the police station to the gas station, and upon arrival, saw a few cars: a blue Pontiac Bonneville turning left onto Main Street off of one of the side exit roads, and a pickup truck leaving the southeast corner of the parking lot. The driver in the pickup truck made eye contact with Ekholm and pointed to the Bonneville. At 7:18 p.m., Ekholm stopped the blue Bonneville leaving the scene in order to determine if the driver was the individual about whom the call was made. Ekholm stopped the vehicle to conduct a welfare check. He did not suspect that the driver had committed any crime at the time of the stop.
Rather than approaching the car, Ekholm directed the driver, who turned out to be Foshey, to exit the vehicle by opening his driver's side door from outside the window. However, Foshey opened the door from the inside. Ekholm directed Foshey to put his hands up and walk backwards, but after taking two steps, Foshey turned and walked face forward toward Ekholm. Ekholm had Foshey sit down on the curb as he tried to obtain more information from him. SeeBCV 18:19-18:20. Ekholm observed that Foshey appeared to be in a very emotional state, which confirmed that Foshey was the individual about whom the gas station had made a report.
Ekholm began asking Foshey questions while Foshey was sitting on the curb. Foshey denied having any weapons. Foshey did not have any obvious physical injury, but he was leaning into the side of his head. When Ekholm asked what was going on, Foshey responded that he did not know, he did not understand, he was having trouble thinking, and he did not know where he was. See BCV 18:20:20-18:21:15; Tr. 4. In response to Ekholm's question about when his trouble thinking started, Foshey said that he thought he was diabetic but had not been diagnosed with diabetes and did not take any medications. Foshey did not know if he was supposed to take medications. BCV 18:21:20-51; Tr. 5.
Around this time, defendant Tara Wentlandt arrived on scene and asked Foshey if he had been drinking. Foshey said that he had, but not a lot. Tr. 5-6; BCV 18:21:51-18:22:14. Foshey told Ekholm that he lived in Wisconsin Rapids with his grandfather, had no family in the Ellsworth area, and had stayed alone in a hotel in Osseo the night before. BCV 18:22:14-18:23:20, 18:53:03-18:53:27; Tr. 6-7, 20. He did not visit anyone during his drive from Wisconsin Rapids.
When Ekholm asked Foshey whether he was hearing voices, Foshey responded that Tr. 7-8; BCV 18:24:06-18:24:25. In response to Ekholm asking whether he could be more specific, Foshey stated only that he needed to see a doctor and did not elaborate as to what kind of doctor when asked. Ekholm then asked Foshey severaldifferent questions about whether he wanted to hurt himself or was contemplating suicide, and Foshey either answered no or shook his head "no" in response to every question. Tr. 10. The video shows that Foshey paused before answering some of Ekholm's questions about hurting himself and he answered most of the questions quietly. BCV 18:25:43-18:27:08. Foshey denied being in pain and said "I don't know if diabetes is doing this, I just need somewhere to go." Tr. 10-11; BCV 18:27:00-18:27:30. The video shows that Foshey paused and was labored in providing his response. Id.
At 7:27 p.m., Wentlandt asked Foshey about his identification, and Foshey said it was in the car. Foshey stood, reached into his pocket, and walked hesitantly toward the passenger side of his car. Wentlandt told Foshey to sit down, and Foshey said "okay" and sat down on the retaining wall. Ekholm then asked Foshey why he was talking to someone at the gas station about suicide. Foshey said that he wasn't. Ekholm asked Wentlandt, and then Foshey, if his wallet was in the car. As Wentlandt went toward Foshey's car, Foshey got up to follow her in an apparent attempt to retrieve the wallet, but he sat back down when Ekholm told him to. Ekholm wanted Foshey to sit down because he was not walking well and Ekholm did not want Foshey to fall into Main Street or get hurt. Wentlandt retrieved Foshey's license, which was on the front seat of the car, not inside a wallet. BCV 18:27:34-18:29:21; Tr. at 11-12. No one asked Foshey's permission to enter his vehicle.
By 7:34 p.m., Ekholm learned from the Wisconsin Rapids Police Department that Foshey had been subject to three separate welfare checks since April 30, 2015, but none of them had resulted in Chapter 51 detention actions. At about 7:35 p.m., about 20 minutes into the stop,Ekholm tried to call Foshey's father and grandfather. He also stated that he was going to check with the complainant from the gas station to get more information.4 Tr. 12.
Based on Foshey's confused behavior, Ekholm suspected that Foshey was under the influence of intoxicants. There also was a bottle of alcohol on the front seat of Foshey's car that had been consumed at some point. At 7:46 p.m., Ekholm administered two preliminary breath tests (PBTs) by having Foshey blow into a handheld device. Foshey registered a .03 on the first test and a .00 on the second. BCV 18:46:00-18:46:25; Tr. 13.
Around this time, a third officer arrived on scene. Ekholm told Foshey that he had learned from a gas station employee (not the employee who had called the police) that Foshey had spent over an hour sitting at the pumps before coming inside and saying that he was hearing some voices. In response, Foshey told Ekholm that he was "feeling diabetic" recently and that he had not seen a doctor because he could not afford one. Tr. 14-15; BCV 18:47:22-18:48:18. He also told Ekholm at some point that he had been sitting at the gas station pumps trying to figure out if he had enough money for gas.
Ekholm sat on the retaining wall next to Foshey to try to engage him in conversation. He asked Foshey several questions about what he was feeling, how long he had felt that way, and whether he suicidal or was hearing voices. Tr. at 14-19; BCV 18:49:55-18:50:37. Foshey denied saying that he was hearing voices. Although Foshey seemed like he was going to respond at one point, his voice trailed off and he became quiet before stating "just wait for the ambulance." Tr.17. Ekholm told Foshey that he had not called an ambulance because he did not think there was a reason to call one at that time and that Foshey needed to answer his questions honestly so that Ekholm could try to get him some help, at least temporarily. Id. at 16-17.
Ekholm asked Foshey various questions about where he was from, what he did for work and whether something had happened to him recently. Foshey responded with brief answers. He said that his mother lives in Arizona and he had...
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